Document Type

Working Paper

Publication Date

3-16-2020

SSRN Discipline

PSN Subject Matter eJournals; Experimental & Empirical Studies eJournals; LSN Subject Matter eJournals; Economics Research Network; Legal Scholarship Network; WGSRN Subject Matter eJournals; Womens & Gender Studies Research Network; Law School Research Papers - Legal Studies; Corporate Governance Network; Criminal Justice Research Network; Political Science Network; Health Law eJournals; Political Economy - Development eJournals

Abstract

Half a century of abortion litigation might suggest that state governments have a longstanding commitment to protecting fetal life And yet over the last several decades state governments and local law enforcement are increasingly taking steps that actively undermine fetal health Through the passage of state fetal endangerment laws and the prosecution of pregnant women under stretched interpretations of existing criminal law states are actively creating conditions that result in poorer fetal health outcomes "” including an increase in fetal and infant death brbrThis Article seeks to make three important contributions to the scholarly literature regarding the undesirability of fetal endangerment laws First it shows "” for the first time through empirical evidence "” that fetal endangerment laws fail to accomplish the state's stated goal of protecting and promoting fetal and infant health Second it shows that these laws actually have a statistically significant negative impact on fetal and infant health In particular we examine the impact of Tennessee's 2014 fetal endangerment law "” a law which explicitly criminalized prenatal drug use "” by analyzing comprehensive datasets on births fetal deaths and infant deaths We find consistent evidence that this law undermined the ability of mothers to access prenatal care worsened birth outcomes and increased both fetal and infant death rates For example in 2015 alone this law resulted in 20 more fetal deaths and 60 more infant deaths Finally based on this empirical evidence this Article argues the Constitution prohibits states from either passing additional fetal endangerment laws or continuing to enforce current ones because such state action fails to survive even rational basis review br

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