1 Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). The common-law doctrine was first announced by Justice Holmes in Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). Justice Holmes reasoned that “as the unborn child was a part of the mother at the time of the injury,” and thus “an infant dying before it was able to live separated from its mother,” it was not recognized by the law as having standing to sue for the injury. Id. at 17.

2 Fleisher, , Wrongful Births, 141 AM. J. DISEASES CHILDREN 1260, 1260 (1987)CrossRefGoogle ScholarPubMed.

3 Grodin v. Grodin, 102 Mich. App. 396, 401, 301 N.W.2d 869, 871 (1980) (child's tooth discoloration resulted from medication ingested by the woman during pregnancy). This holding is based on the abrogation of the parent-child tort immunity doctrine announced in Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169, 172 (1972). Plumley also announced two exceptions to this general abrogation. One exception is when the alleged negligent conduct involves an exercise of reasonable parental discretion with respect to the provisions of food, clothing, housing, medical services and dental services. Id. at 8, 199 N.W.2d at 172-73. The trial court in Grodin granted the mother's motion for summary judgment based on this exception. Grodin, 102 Mich. App. at 398, 301 N.W.2d at 869. The Michigan Court of Appeals reversed and remanded for a finding of reasonableness as to the mother's conduct. Id. at 401, 301 N.W.2dat871.

4 Grodin, 102 Mich. App. at 400, 301 N.W.2d at 870.

5 But see Roe v. Wade, 410 U.S. 113 (1973), which recognized a legitimate state interest in protecting a fetus only after viability.

6 Eighteen states have “feticide” statutes: ARIZ. REV. STAT. ANN. § 13-1103(A)(5) (1991); CAL. PENAL CODE § 187(a) (Deering 1991); FLA. STAT. ch. 782.09 (1991); GA. CODE ANN. § 16- 5-80 (Michie 1991); IND. CODE ANN. § 35-42-1-6 (Burns 1991); IOWA CODE §§ 707.7, 707.8 (1991); LA. REV. STAT. ANN. § 14:32.5 (West Supp. 1991); MICH. COMP. LAWS ANN. § 750.322’ (West 1991); MINN. STAT. §§ 609.266-609.269 (1991); Miss. CODE ANN. § 97-3-37 (1991); NEV. REV. STAT. ANN. § 200.210 (Michie 1987); N.H. REV. STAT. ANN. § 585:13 (1990); OKLA. STAT. tit. 21, § 713 (1990); R.I. GEN. LAWS § 11-23-5 (1991); S.D. CODIFIED LAWS ANN. § 22- 17-6 (1991); TENN. CODE ANN. § 39-13-214 (1990); UTAH CODE ANN. § 76-5-201(1) (1991); WASH. REV. CODE § 9A.32.060(l)(b) (1990).

Massachusetts and South Carolina recognize a common-law crime of “feticide.” Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (1989); State v. Home, 282 S.C. 444, 319 S.E.2d 703 (1984). See also Memorandum from A.C.L.U. Found. Reproductive Freedom Project and Women's Rights Project to A.C.L.U. Affiliates, Discriminatory Punishment of Pregnant Women (Feb. 15, 1990) [hereinafter A.C.L.U. Memorandum]. For an excellent discussion of “feticide,” see Note, Of Woman's First Disobedience: Forsaking A Duly of Care to Her Fetus — Is This A Mother's Crime', 53 BROOKLYN L. REV. 807 (1987) [hereinafter Note, Of Woman's First Disobedience].

7 Gloria C. v. William C , 124 Misc. 2d 313, 476 N.Y.S.2d 991 (N.Y. Fam. Ct. 1984).

8 Id. at 319, 323-24, 476 N.Y.S.2d at 995, 996-97. The court did note that in this case, the woman's constitutional right to privacy was not involved and that when a woman's constitutional right is involved, Roe v. Wade recognizes a legitimate state interest in protecting the fetus. Id. at 322, 476 N.Y.S.2d at 996.

9 Id. at 323, 476 N.Y.S.2d at 997.

10 Field, Controlling the Woman to Protect the Fetus, 17 LAW, MED. & HEALTH CARE 114, 120 (1989).

11 Gallagher, Kolder & Parsons, , Court-Ordered Obstetrical Interventions, 316 NEW ENG. J. MED. 1192, 1193 (1987)Google Scholar [hereinafter Kolder]. For an excellent and comprehensive study of this topic, see generally Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 CALIF. L. REV. 1951 (1986).

12 Field, supra note 10, at 116.

13 Jefferson v. Griffin Spaulding Hosp. Auth. (In re John or Mary Doe), 274 Ga. 86, 88, 247 S.E.2d 457, 459 (1981).

14 Field, supra note 10, at 117.

15 re A.C., 573 A.2d 1235 (D.C., 1990).

16 Id. at 1238.

17 Field, supra note 10, at 117.

18 In re A.C., 573 A.2d at 1240.

19 Id. at 1241.

20 Id. at 1252.

21 Id. at 1249.

22 The criminal prosecution of pregnant women for drug use is beyond the scope of this Note. For further information, see Paltrow, When Becoming Pregnant is a Crime, JOHN JAY CRIM. JUST. ETHICS MAG., Feb. 21, 1990 (Draft article); Women's Rights Project, A.C.L.U., Legal Issues: Drug Testing of Post-Partum Women and Newborns as the Basis for Civil and Criminal Proceedings, CLEARINGHOUSE REV., Feb. 1990; A.C.L.U. Memorandum, supra note 6.

23 Placenta previa is a condition in which the placenta is attached to the lower part of the uterus instead of the upper part, as is normal. THE BANTAM MEDICAL DICTIONARY 324 (Bantam ed. 1982).

24 See CAL. PENAL CODE § 270 (Deering 1991); Note, Of Woman's First Disobedience, supra note 6, at 807 (citing People v. Stewart, No. M508197, slip op. (San Diego Co. Mun. Ct. Feb. 26, 1987)).

25 G. ANNAS, S. LAW, R. ROSENBLATT & K. WING, AMERICAN HEALTH LAW 978 (1990) [hereinafter G. ANNAS].

26 Field, supra note 10, at 118.

27 Id. (the “attempt to punish a mother for having disobeyed doctors’ orders during pregnancy has stirred the imaginations of many to uses that could be made of their own state's abuse and neglect laws“). See also N.Y. Times, Feb. 27, 1987, at A25, col. 1; Recorder, Feb. 27, 1987, at 1, col. 1; N.Y. Times, Oct. 9, 1986, at A22, col. 1.

28 Washington Post, Nov. 25, 1989, at A4.

29 Id. See also U.P.I., Nov. 14, 1989, BC cycle.

30 Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984) (construing MASS. GEN. LAWS ANN. ch. 90, § 24G(a) (1989 & Supp. 1991) to include a fetus as a person). See also Boston Globe, Sept. 16, 1989, at 25.

31 Casper Star-Tribune, Jan. 25, 1990, at Bl, col. 1.

32 N.Y. Times, Jan. 22, 1990, at B8, col. 6.

33 Casper-Star Tribune, Feb. 2, 1990, at 1, col. 1.

34 Telephone interviews with Mary Elizabeth Galvin, Defense Attorney for Ms. Pfannenstiel (Sept. 5, 1990) and Cal Rerucha, Laramie County Attorney (Sept. 5, 1990).

35 Id.

36 G. ANNAS, supra note 25, at 982 (citing Robertson, Procrealive Liberty and Control of Conception, Pregnancy and Childbirth, 69 VA. L. REV. 405, 438 (1983)).

37 A new trend toward “politically correct” speech illustrates the helplessness that people feel today. Newsday, Dec. 24, 1990, cover. The way we speak changes the way we think. Throughout this Note, for example, this author will not refer to a pregnant woman as a “mother” for the simple reason that she is not one. No one would refer to a woman who chose to abort or suffered a miscarriage as a mother. Aside from being factually incorrect, it would be in poor taste. It becomes obvious that the word “mother” is laden with meanings not found in Webster's Dictionary, which defines “mother,” in relevant part, as “a woman who has given birth to a child: a female parent.” WEBSTER's THIRD NEW INT'L DICT. 1474 (14th ed. 1965). Those who advocate fetal rights can garner a good deal of sympathy by the use of the words “mother” and “baby.” Similarly, a man who impregnates a woman is not a “father” until a child is born. If a man's wife delivers a baby at full term and the baby dies immediately before or after birth, the man would not label himself a father.

Instead, by discussing the rights of “pregnant women,” we are less likely to have the emotional appeal of “motherhood” blur the legal arguments. Emotional, rather than rational, decision-making deserves no place in creating legal policy and precedent. It is undisputable that babies born addicted to drugs, disabled or malformed are unbearably heartbreaking, and that drug use or uncaring pregnant women are undesirable. Nevertheless, victim-blaming is counterproductive and wrong. See W. RYAN, BLAMING THE VICTIM (1976). We must resist the impulse to blame women who often desire help and must instead seek out real solutions.

38 “Addiction” is defined as “a state of dependence produced by the habitual taking of any certain drugs … . Treatment is aimed at the gradual withdrawal of the drug and eventually total abstention.” THE BANTAM MEDICAL DICTIONARY 6 (Bantam ed. 1982).

39 Field, supra note 10, at 121-22.

40 A.C.L.U. Memorandum, supra note 6, at 5 n.7.

41 See Alter, Women and Crack: Equal Addiction, Unequal Care, Boston Globe, Nov. 1, 1989, at 4, col. 1.

42 “[T]he discriminatory enforcement is a result of a combination of racism and the mother's poverty.” Editorial, N.Y. Times, Aug. 11, 1990, § 1, at 25, col. 2.

Id.

44 Id. (“[H]ospitals decide whom to screen for drug use by applying criteria … that are more likely to select poor women of color.“).

45 Poor women receive inadequate care, and African American women are more likely to be poor than to be affluent. Id.

46 Roberts, , Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1436 (1991) (footnote omitted).CrossRefGoogle ScholarPubMed

47 Editorial, supra note 42.

48 Roberts, supra note 46, at 1436.

49 Brazelton, Why Is America Failing Its Children?, N.Y. Times, Sept. 9, 1990, § 6 (Magazine), at 50, col. 1.

50 See L.A. Times, Dec. 8, 1990, at Al, col. 1. See generally Knoppers, Recent Advances in Medically Assisted Conception: Legal, Ethical and Social Issues, 17 AM. J.L. & MED. 329 (1991).

51 Pollitt, , A New Assault on Feminism; 250 THE NATION 409, 416 (1990) (emphasis in original).Google ScholarPubMed

52 See Hoffman, Pregnant and Addicted — and Guilty?, N.Y. Times, Aug. 19, 1990, § 6 (Magazine), at 32, 35.

53 N.Y. Times, June 18, 1990, at Cll, col. 5.

54 Boston Globe, Nov. 10, 1989, at 25, 31.

55 The companies that excluded women include American Cyanamid Co.; B.F. Goodrich Co.; Dow Chemical Co.; Environmental Protection & Aeration Systems, Inc.; Firestone; General Motors Corp.; Monsanto; Olin Corp.; St, Joe Minerals Corp.; and Johnson Controls, Inc. Comment, Fetal Protection and UAW v. Johnson Controls, Inc.; Job Openings for Barren Women Only, 58 FORDHAM L. REV. 843, 843 n.3 (1990) [hereinafter Comment, Barren Women].

56 International Union, UAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989) (en banc), cert, granted, 110 S. Ct. 1522 (1990), rev'd. 111 S. Ct. 1196 (1991).

57 Comment, Barren Women, supra note 55, at 860. See also Note, Fetal Protection Policies, 75 CORNELL L. REV. 1110 (1990); Recent Case, 103 HARV. L. REV. 977, 977 (1990). See generally Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. Cm. L REV. 1219 (1986); Williams, Firing the Woman to Protect the Fetus: The Reconciliation of Fetal Protection With Employment Opportunity Goals Under Title VII, 69 GEO. L. REV. 641 (1981).

58 Johnson Controls, 886 F.2d at 876.

59 Id. at 884 n.25.

60 Recent Case, supra note 57, at 981 n.37; Becker, supra note 57, at 1253; Comment, Barren Women, supra note 55, at 860.

61 Recent Case, supra note 57, at 980 (citing Johnson Controls, 886 F.2d at 907 (Posner, J., dissenting) (“the evidence of the record concerning the potential hazard to the fetus through the father exposed to airborne lead is fragmentary and stale … .“)); Comment, Barren Women, supra note 55, at 859 (evidence on the issue of harm to men was not presented).

62 Recent Case, supra note 57, at 981 n.37; Becker, supra note 57, at 1253; Comment, Barren Women, supra note 55, at 860.

63 Johnson Controls, 886 F.2d at 901.

64 42 U.S.C.A. § 2000e (West 1981 & Supp. 1991).

65 Johnson Controls, 111 S. Ct. at 1210. See Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, § 1, 92 Stat. 2076 (codified as amended at 42 U.S.C.A. § 2000e(k)).

66 Johnson Controls, 111 S. Ct. at 1206.

67 Id. at 1207.

68 Id. The Court also found that, if the company provides sufficient information and warning of the risks of the job, the possibility of tort liability for injury to the fetus “seems remote at best.” Id. at 1208.

69 Id. at 1207.

70 Freudenheim, In Pursuit of the Punctual Baby, N.Y. Times, Dec. 28, 1988, at Dl, col. 3. “Self-insured” refers to the practice of using invested company funds to pay claims, rather than to pay premiums to an insurance agency. Companies that can afford to self-insure usually will, both to save costs and to avoid state and federal insurance law restrictions and requirements, which apply only to full-time insurance firms. See G. ANNAS, supra note 25, at 782.

71 Freudenheim, supra note 70.

72 GLAMOUR, May 1988, at 109.

73 A National Law Journal telephone poll of 800 Americans over age 18 reported the following data: 52% believe that the mother of a child who is impaired by the mother's drug use during pregnancy should be criminally prosecuted. Sherman, Bioethics Debate, Nat'l L.J., May 13, 1991, at 1, col. 3. Forty-one percent believe that a pregnant drug user should be jailed in order to prevent continued drug use during pregnancy. Id. at 30, col. 3. This figure was 50% for those aged 18-34, and 42% for those aged 65 and over. Nevertheless, 64% of those polled believe that government should fund treatment programs for pregnant drug users. Id.

74 Taft v. Taft, 388 Mass. 331, 446 N.E.2d 395 (1983).

75 The “ ‘purse string’ operation involved suturing so that the cervix would hold the pregnancy.” Id. at 332, 446 N.E.2d at 332 (internal quotations omitted) (citation omitted).

76 Id. at 333, 446 N.E.2d at 396.

77 Id.

78 “We do not decide whether, in some situations, there would be justification for ordering the wife to submit to medical treatment … . [T]he State's interest, in some circumstances, might be sufficiently compelling … .” Id. at 334, 446 N.E.2d at 397.

79 “We need not resolve the issue whether a husband has a right to insist that his wife undergo surgery in order to assist in carrying a pregnancy to term.” Id. at 333, 446 N.E.2d at 396.

80 See, e.g., Gallager, Prenatal Invasions & Intrusions, 10 HARV. WOMEN's L.J. 9, 32 (1987); Johnsen, The Creation of Fetal Rights, 95 YALE L.J. 599, 614 (1986); Note, Of Woman's First Disobedience, supra note 6, at 842; Note, Rethinking (M)otherhood, 103 HARV. L. REV. 1325, 1327 (1990).

81 See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

82 U.S. CONST, amend. XIV, § 1.

83 U.S. CONST, amend. I.

84 U.S. CONST, amend. XIV, § 1.

85 Taft v. Taft, 388 Mass. 331, 334, 446 N.E.2d 395, 396 (1983).

86 Id.at 334, 446 N.E.2d at 397.

87 Id. at 335, 446 N.E.2d at 397.

88 Note, Rethinking (M)otherhood, supra note 80, at 1327.

89 In re A.C., 573 A.2d 1235 (D.C. 1990). See supra text accompanying notes 15-21.

90 In re A.C., 573 A.2d at 1252 n.23 (citing In re Madyun, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. 1986), aff'd. No. 86-1149, slip op. (D.C.July 2, 1986)).

91 Id.

92 Roe v. Wade, 410 U.S. 113 (1973).

93 See sources cited supra note 80.

94 See Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).

95 N.Y. Times, Jan. 26, 1991, § 1, at 10, col. 4. Groups such as the American Civil Liberties Union and Planned Parenthood are planning a constitutional challenge to the bill. “[T]he new law's effective date … is stayed pending a decision in Liberty v. Bangerter, 91-C-345G.” Suit Filed Challenging Utah Abortion Law, Nat'l L.J., Apr. 22, 1991, at 6.

On the other hand, William D. Schaeffer, Governor of Maryland, recently signed the first bill in the nation to guarantee the rights enunciated in Roe v. Wade beyond such time as Roe may be overturned. Nat'l L.J., Mar. 4, 1991, at 6. Also, in Doe v. Michigan Dep't of Social Servs., 187 Mich. App. 493, 468 N.W.2d 862 (1991), appeal granted, 91092, 91093 (July 23, 1991), the Michigan Court of Appeals held unconstitutional a voter-approved ban on Medicaid abortion funding. Nat'l L.J., Mar. 4, 1991, at 6.

96 For example, Justice Scalia wrote of overruling Roe v. Wade, “ I think that should be done, but would do it more explicitly.” Webster, 492 U.S. at 532 (Scalia, J., dissenting).

97 Note, Rethinking (M)otherhood, supra note 80, at 1326.

98 In re A.C., 573 A.2d 1235, 1252 n.23 (D.C. 1990).

99 For an interesting case in which a religious group attempted (and failed) to gain custody of 16,000 aborted fetuses from the Los Angeles County District Attorney, for the purposes of a religious burial service, see Catholic League v. Feminist Women's Health Center, 469 U.S. 1303 (1984).

100 Cole, Legal Interventions During Pregnancy, 264 J.A.M.A. 2663, 2663 (1990) (citing prenatal diagnosis, prenatal therapy and fetal surgery as possibilities).

101 See, e.g., Boston Globe, Nov. 27, 1988, at A21.

102 Cruzan v. Director, Mo. Dep't of Health, 110 S. Ct. 2841 (1990).

103 See 61 AM. JUR. 2D Physicians, Surgeons and Other Healers §§ 152-161 (1981) (surveying laws by state).

104 See, e.g., Lane v. Candura, 376 N.E.2d 1232 (Mass. App. Ct. 1978).

105 See G. ANNAS, supra note 25, at 984, and sources cited therein.

106 Cole, supra note 100, at 2664.

107 Id.

108 id. at 2665.

109 Id. at 2670. See also Nat'l L.J., Dec. 31, 1990, at 16; A.C.O.G. Committee Opinion No. 55 (Oct. 1987); Letter from A.C.O.G. to A.C.L.U. (Dec. 4, 1989) (discussing the opinion).

One group of physicians has said that

110 2 PROOF OF FACTS 2D 365, §§ 14-26, at 415-27 (Supp. 1990).

111 Although it is conceivable that a pregnant adult who is living at home may be subject to intrusive parents, this author believes that the parents would have no legal right to interfere, other than to ask the woman to leave the family home. Thus, the discussion will be confined to pregnant minors.

112 See Doe by Nelson v. Milwaukee County, 903 F.2d 499, 503 (7th Cir. 1990) (commonlaw duty to protect children from abuse); Campbell v. United States, No. 89-C-6415, 1991 U.S. Dist. LEXIS 9725, at * 11 (“The duty of a parent to support his minor child arises out of a natural relationship.“) (citation omitted).

113 See In re Long Island Jewish Medical Center, 147 Misc. 2d 724, 557 N.Y.S.2d 239 (N.Y. Sup. Ct. 1990) (pregnant minors and minors who are parents treated as adults when making health care decisions for themselves or for their children).

114 59 AM. JUR. 2D Parent and Child § 10 n.90 (1987) (citing Dunlap v. Dunlap, 84 N.H. 352, 356, 150 A. 905, 911 (1930).

115 Recall that the issue here would not be whether the minor may or must seek an abortion. It must be assumed that the woman has chosen to complete the pregnancy, because the issue is whether she has a right to behave in any way she chooses while pregnant.

116 A man, woman or couple who plans to adopt the newborn through a surrogacy arrangement or open adoption will certainly have a financial and emotional stake in the health of the fetus, and may be legally committed to accepting the child, whether healthy or not. For a discussion of the legal restrictions on refusing to accept a damaged infant, see M. FIELDS, SURROGATE MOTHERHOOD (1988). While this situation may be problematic and raise ethical and emotional concerns, these will be little different from the interests of a pregnant woman's husband. Thus, this class of potential intervenors will not be considered separately.

A boyfriend who has impregnated a woman may also believe that he has moral or legal duties to the fetus. The law distinguishes sharply between the rights of husbands and those of boyfriends with respect to women and children. For example, the legal presumption is that a married woman has been impregnated by her husband. See Michael H. v. Gerald D., 491 U.S. 110, reh'g denied, 492 U.S. 937 (1989), which upheld as constitutional a California law which presumes that the child of a married woman is a child of the marriage. The presumption is rebuttable only in limited circumstances and is not rebutted by a 98.07% probability that another man, who sought to claim paternity rights, is the father. See id. at 119. Additionally, scientists and physicians cannot determine with certainty during pregnancy whether a certain man impregnated a woman, and thus whether this man has any legal or moral claim to the fetus. For these reasons, this Note will not discuss further the special rights and duties of boyfriends.

117 Quilloin v. Walcott, 434 U.S. 246, 255, reh'g denied, 435 U.S. 918 (1978).

118 State v. Zobel, 81 S.D. 260, 264, 134 N.W.2d 101, 109, cert, denied, 382 U.S. 833 (1965), overruled on other grounds, State v. Waff, 373 N.W.2d 18, 22 (1985).

119 See Illingworth v. Madden, 135 Me. 159, 192 A. 273 (1937) and cases cited therein.

120 See, e.g., Stallman v. Youhngquist, 125 111. 2d 267, 531 N.E.2d 355 (1988); Chesney v. State, 259 Ind. 138, 285 N.E.2d 265 (1972), cert, denied, 410 U.S. 991 (1973).

121 E.g., CAL PENAL CODE § 270 (Deering 1991). This is the California statute under which Ms. Monson was charged. See supra text accompanying notes 23-27..

122 Taft v. Taft, 388 Mass. 331, 333, 446 N.E.2d 395, 396 (1983) (“We need not resolve the issue whether a husband has a right to insist that his wife undergo surgery in order to assist in carrying a pregnancy to term.“).

123 See 59 AM. JUR. 2D Parties § 14 (1987) and cases cited therein.

124 See Matarese v. Materese, 47 R.I. 131, 131 A. 198 (1925).

125 See 59 AM. JUR. 2D Parties §§ 10, 11 & 14 and cases cited therein.

126 “As the numbers and bruises mount, … government's response to domestic violence has been inadequate… . [T]he law doesn't begin to cover the complicated needs faced by victims — mostly women … . “ Scattarella, The Domestic Abuse Trap, Seattle Times, May 1, 1990, at CI. Further, “because domestic violence was generally viewed as a private matter, police often hesitated to get involved … .” Id. at C2. The National Council of Juvenile and Family Court Judges said that lawyers, police and judges have failed to see family violence as “serious criminal conduct.” Judges Urge Classifying Family Abuse As “Serious Crime”, Chicago Tribune, Oct. 2, 1990, at C12. See also Court Order Can't Stop Domestic Violence, Seattle Times, Nov. 23, 1990, at Al.

127 Smith v. Organization of Foster Families, 431 U.S. 816 (1977) (“[F]reedom of personal choice in matters of family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment… . There does exist a private realm of family life which the state cannot enter[.]“) (internal quotations omitted) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).

128 Pollitt, supra note 51, at 416.

129 Id. See also Chavkin, Mandatory Treatment for Drug Use During Pregnancy, 266 J.A.M.A. 1556, 1559 (1991) (describing effects of paternal exposure to drugs on the fetus’ genetic makeup, as well as potential male contribution to female drug use).

130 Pollitt, supra note 51, at 416.

131 For example, a woman may not realize that she is pregnant if she suffers from amenorrhea, the condition in which the menstrual period ceases. Common causes of amenorrhea include taking oral contraceptives, exercising, eating disorders, breast feeding and genetic factors. See, e.g., Drife, Breast Sensitivity and Lactational Amenorrhea, 95 BRIT J. OBSTETRICS & GYNAECOLOGY 824 (1988); Emans & Mansfield, Anorexia Nervosa, Athletics and Amenorrhea, 36 PEDIATRIC CLINICS N. AM. 533 (1989); Ji, Chen, Tan & Liang, Brief Clinical Report: Balanced X;15 Translocation 46,X,t(X;15)(q21;q23) Associated With Primary Amenorrhea, 31 AM. J. MED. GENETICS 783 (1988); Olson, Exercise-Induced Amenorrhea, 39 FAM. PHYSICIAN 213 (1989).

132 G. ANNAS supra note 25, at 925 (citing Geronimus, The Effects of Race, Residence and Prenatal Care on the Relationship of Maternal Age to Neonatal Mortality, 76 J. AM. PUB. HEALTH A. 1416 (1986)).

133 Id. at 926 (citing U.S. GAO, PRENATAL CARE: MEDICAID RECIPIENTS AND UNINSURED WOMEN OBTAIN INSUFFICIENT CARE 3 (1987)). There is a close correlation between inadequate prenatal care and low birth weight, which is the leading factor associated with mortality. Id. at 925, 926 (citing INSTITUTE OF MEDICINE, DIVISION OF HEALTH PROMOTION AND DISEASE PREVENTION, PREVENTING LOW BIRTHWEIGHT 8 (1985)).

134 Id. at 927-28.

135 Id. at 941 (citing CHILDREN's DEFENSE FUND, THE HEALTH OF AMERICA's CHILDREN: MATERNAL AND CHILD HEALTH DATA BOOK 52 (1988)).

136 At least 500,000 children are homeless, according to U.S. Representative Louise Slaughter (D.N.Y.). Letter to the Editor, Washington Post, Jan. 22, 1991, at A12.