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109 Geo. L.J. 475 (2020-2021)
State-Created Fetal Harm

handle is hein.journals/glj109 and id is 485 raw text is: ARTICLES State-Created Fetal Harm MEGHAN BOONE* & BENJAMIN J. McMICHAEL** Half a century of state-level restrictions on abortion access might cause a casual observer to conclude that state governments have a long-standing 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 laws, states are actively creating conditions that result in poorer fetal health outcomes-including an increase in fetal and infant death. This Article seeks to make three important contributions to the schol- arly literature regarding the undesirability offetal endangerment laws. First, it shows-for the first time through empirical evidence-that fetal endangerment laws fail to accomplish the state's 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 that 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 twenty more fetal deaths and sixty more infant deaths. Finally, based on this empirical evidence, this Article argues that states should be prohibited from passing additional fetal endangerment laws and continuing to enforce current ones because such state action fails to survive even rational basis review. TABLE OF CONTENTS INTRODUCTION ..................................................... 476 * Assistant Professor, Wake Forest University School of Law. 0 2021, Meghan Boone & Benjamin J. McMichael. The authors would like to extend their sincere thanks to Professor Ron Krotoszynski for his early and extremely helpful input on this project. They would also like to thank the editors of The Georgetown Law Journal for their thoughtful and thorough edits and comments. ** Assistant Professor, University of Alabama School of Law. The protocols employed in this Article were approved by the University of Alabama Institutional Review Board (approval number 19- OR-256-ME). The National Center for Health Statistics approved this study and granted the authors permission to analyze the restricted-use data described below (approval number DVS2019-1837). 475

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