ABA Journal


Constitutional Law

Pregnant woman confined under fetal protection law challenges its constitutionality

Oct 25, 2013, 10:40 am CDT


Apparently, the nanny state now wants to be the mid-wife state as well.

By B. McLeod on 2013 10 25, 12:14 pm CDT

This is what happens when a state's laws essentially reduce a pregnant woman to being little more than a human incubator. This is shameful and clearly unconstitutional.

By EsqinAustin on 2013 10 25, 1:31 pm CDT

The state would intervene if a parent abused his/her child outside of the womb. Why not inside too? Also, think of the cost to the child and to society of that child being born with fetal alcohol syndrome or crack addiction. Isn't there a greater right here to protect than this woman's constitutional rights when she chooses to harm another?

By Old Battle Axe on 2013 10 25, 2:23 pm CDT

@3. She did no harm in this case. She disclosed a past issue. Urine tests showed no cuurent use. She was then confined without due process. This will discourage women from seeking prenatal care or being honest with doctors. That will cause far more harm to fetuses than any protected by this unconstitutional intrusion. What next? Forced prenatal vitamins? Jail for sushi consumption while pregnant? Are we all for smaller government and less government intrusion, except as applied to female reproduction?

By Lawmom on 2013 10 25, 2:59 pm CDT

@3. because the "baby" inside the womb is not a baby until 24 weeks. Second, fetal alcohol syndrome is caused by drinking. there is nothing in this story to indicate that this woman had a drinking problem. As far as being born with crack addiction, there is nothing in this story to indicate that the woman used crack, either. The woman was addicted to prescription pain-killers, which is a totally different drug. (Read: the stereotype you have in your brain about this woman being some poor ghetto welfare queen is wrong; prescription pain killers are expensive - and this woman, therefore, is FAR more likely to be a middle class housewife from a respectable home than a homeless junkie.) But in any event, one more note about cost: babies born to moms addicted to pain killers get a morphine drip. Hospital morphine is very cheap. Far cheaper than housing this woman against her will in a facility for nearly three months. But the bigger issue (besides your ignorance) is the fact that this woman tested NEGATIVE for the drugs. Painkiller addiction is not something you can quit for a few days in order to pass a drug test. She was clean, and confined regardless. THAT is the problem. Oh and while we're at it - let's arrest and confine to a home all expecting moms AND DADS who smoke around their pregnant partners. Because smoking is just as dangerous, and in fact - probably far more dangerous - than rx drug use during pregnancy. (Oxycontin is not teratogenic; cigarettes ARE.) Because you know, someone's gotta protect the fetus.


By stupidgov on 2013 10 25, 2:59 pm CDT

I don't get it. We give women the right to murder... er abort... their children on demand up to a certain point. If you don't want the kid, abort it. If you decide to have the child or don't exercise your "right" to an abortion before the cut off, I don't think it's unreasonable for the government step in to protect the child. Wasn't that the interest balancing part of Roe v. Wade, you know the decision that libs so revere.

Ugh have we become so obsessed with the mother's right to do whatever the hell she wants that absolutely no thought is given to the child's right to not have a lifetime of medical issues because mommy made poor decisions. Btw, there are likely TWO parents who will have to pay for the medical issues this child might suffer from. Furthermore, unless mommy is independently wealthy, my tax dollars will help pay for this child's medical issues.

Sorry, if I sound cynical, but there's nothing more cynical than the concept of talking about "choice" in the face of life.

By CJ on 2013 10 25, 5:34 pm CDT


This story is not about a woman seeking an abortion. It is about a pregnant woman being confined by the State. Try to stay on topic instead of interjecting abortion into the mix.

By Moderate Centrist Independent on 2013 10 25, 6:03 pm CDT

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