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Hastings Women’s Law Journal

Authors

Bernice Bird

Abstract

Fetal homicide laws, though initially created to protect both mothers and fetuses, serve to wholly protect fetal life and prosecute any perpetrator responsible for its death, including its mother. Maternal prosecutions associate pregnant behaviors with criminal sanctions and may "hinder" the "free choice" to reproduce. Therefore, pregnant women suffer encroachment of their liberty interest to continue or terminate pregnancy at all stages. In this Article, Ms. Bird examines state fetal homicide and personhood laws, arguing that, as post-viable pregnancy regulations, fetal homicide laws are undue burdens on women's right to reproduce because the laws lack maternal life and health exceptions precluding maternal prosecution. Ms. Bird proposes that state fetal pain and homicide laws should only apply to regulating the post-viable stages of pregnancy, while affording policy considerations for maternal life, physical and mental health. Suggestions for policy changes include state funding and improvement of mental health facilities, drug rehabilitation centers, and policies that restrict imprisonment of pregnant women for chemical endangerment of fetuses.

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