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Hastings Law Journal

Authors

Dawn Johnsen

Abstract

In recent years, legislatures, courts, and state prosecutors increasingly have sought to impose special restrictions on women who choose to bear children. While the government certainly has a legitimate interest in promoting the birth of healthier babies, the specific policies implemented in pursuit of this laudable goal pose a significant and growing threat to women's fundamental liberties. In this Article Ms. Johnsen examines the relative merit of two models of governmental action aimed at women: the adversarial model, which treats the woman and the fetus as distinct legal entities having adverse interests; and the facilitative model, which recognizes that women who bear children share the government's objective of promoting healthy births and focuses on helping women overcome the obstacles that often impede achievement of this common goal.

Ms. Johnsen's analysis of these two contrasting models reveals that the adversarial approach is unsupported by precedent, constitutionally infirm, and ultimately ineffective. The facilitative approach, by contrast, not only best preserves women's liberty, but also most effectively promotes healthy births. Ms. Johnsen thus concludes that coercive and punitive governmental policies that create conflict between women's liberty and the promotion of healthy births are unnecessary, unwise, and unconstitutional.

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