Cherry, April. “The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health.” Columbia Journal of Gender & Law 16, no. 1 (March 2007): 147. http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1165&context=fac_articles.
In this article, April Cherry assesses the constitutionality of the detention, confinement, and incarceration of pregnant women. She argues these forms of coercion violate a woman’s constitutional rights to privacy, liberty, bodily integrity, and freedom from unwarranted detention and confinement. She cites two court cases, U.S. v. Salerno and Addington v. Texas for the proposition that the physical restraint of pregnant women for the sake of fetal protection is unconstitutional because the state does not demonstrate the requisite compelling interest. Cherry connects these unconstitutional acts to a “legal culture that seems to prefer the real or imagined needs of the fetus over and above the constitutional interests of the pregnant woman.” (158) She issues a fundamental critique of the way state empowers itself to dictate and define the standards of motherhood and to judge the ‘fitness of mothers.’ Cherry identifies three approaches in which the state intervenes in the lives of pregnant women deemed unfit: parens patriae, which allows the state to take custody of a fetus it deems endangered by the mother; incarcerating pregnant women charged with minor crimes who have been discovered using alcohol or illicit drugs during pregnancy; and state statutes that allow for the detention of pregnant women who use drugs or alcohol and are believed to endanger their fetuses. In addition, Cherry states that the detention, confinement, and incarceration of pregnant women for the sole purpose of protecting fetal health also violates a woman’s constitutional right to privacy including the right to make reproductive decisions established in Eisenstadt v. Baird as well as placing an “undue burden” on a woman’s ability to make reproductive decisions as outlined in Planned Parenthood v. Casey. To expand on this right, Cherry suggests an affirmative right to privacy, which establishes a state obligation to create conditions in which “meaningful, uncoerced, and independent decision making can occur” (194).
This article is useful for individuals interested in the relationship between pregnant women and the government and the ways the government can restrict a woman’s ability to make decisions about her body and reproduction. It is written for a legal-minded audience with an emphasis on rights-oriented language. The introduction offers a good overview of the article.