Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-24T22:03:20.879Z Has data issue: false hasContentIssue false

From the Workplace to the Delivery Room: Protecting the Fetus in the Post-Roe Era

Published online by Cambridge University Press:  17 May 2016

Karen J. Maschke*
Affiliation:
University of Georgia, USA
Get access

Abstract

Employers and state officials are increasingly intervening into the lives of pregnant women for the purpose of protecting the fetus. This article examines fetal protection policies in three contexts: the workplace, the criminal arena, and the medical setting. It shows that the Supreme Court's recent decision in Johnson Controls was a narrow victory for women workers who were forced to comply with fetal protection policies in the workplace. It also points out that the Court's abortion decisions raise questions about whether the state can restrict women's job opportunities in order to protect the fetus. Finally, the article describes how state officials have intervened in women's lives to ensure fetal health and identifies some policy measures that might reduce the need for state intervention to protect the fetus.

Type
Articles
Copyright
Copyright © Association for Politics and the Life Sciences 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Abel, E. and Sokol, R. (1987). “Incidence of Fetal Alcohol Syndrome and Economic Impact of FAS-Related Anamolies.” Drug and Alcohol Dependence 19:5170.Google Scholar
Anchorage Daily News (1992). “Accused Mother Appeals.” July 14, A3.Google Scholar
Atlanta Journal (1992). “S.C. to Appeal Ruling Dismissing Conviction of Pregnant Drug User.” August 12, D8.Google Scholar
Babcock, B.A., Freedman, A.E., Holmes, E., and Ross, S.C. (1975). Sex Discrimination and the Law. Boston: Little, Brown and Company.Google Scholar
Baer, J. (1978). The Chains of Protection. Westport, CT: Greenwood Press.Google Scholar
Balisy, S.S. (1987). “Maternal Substance Abuse: The Need to Provide Legal Protection for the Fetus.” Southern California Law Review 60:1209–38.Google Scholar
Bayer, R. (1982). “Women, Work, and Reproductive Hazards.” The Hastings Center Report October: 1419.Google Scholar
Befort, S.F. (1991). “BFOQ Revisited: Johnson Controls Halts the Expansion of the Defense to Intentional Sex Discrimination.” Ohio State Law Journal 52:555.Google Scholar
Blank, R. (1992). “Fetal Protection Policies in the Workplace: Continuing Controversy in Light of Johnson Controls.” Politics and the Life Sciences 11:215–29.Google Scholar
Chasnoff, I.J., Burns, K.A., Burns, W.J., and Schnoll, S.H. (1986). “Prenatal Drug Exposure: Effects on Neonatal and Infant Growth and Development.” Neurobehavioral Toxicology and Teratology 8:357–62.Google Scholar
Chasnoff, I.J., Griffith, D.R., MacGregor, S., Dirkes, K., and Burns, K.A. (1989). “Temporal Patterns of Cocaine Use in Pregnancy.” Journal of the American Medical Association 261:1741–44.Google Scholar
Chasnoff, I.J., Landress, H.J., and Barrett, M.E. (1990). “The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida.” The New England Journal of Medicine 322:1202–6.Google Scholar
City of Akron v. Akron Center for Reproductive Health (1983). 462 U.S. 416.Google Scholar
Cole, H.M. (1990). “Legal Interventions During Pregnancy.” Journal of the American Medical Association 264:2663–70.Google Scholar
Collins, J.W. Jr. and David, R.J. (1990). “The Differential Effect of Traditional Risk Factors on Infant Birthweight among Blacks and Whites in Chicago.” American Journal of Public Health 80:679–81.Google Scholar
Congressional Quarterly (1983). “Tough New Cigarette Warning OK'd.” September 17.Google Scholar
Curriden, M. (1990). “Holding Mom Accountable.” American Bar Association Journal 76:5053.Google Scholar
Dothard v. Rawlinson (1977). 433 U.S. 321.Google Scholar
Gallagher, J. (1987). “Prenatal Invasions & Interventions: What's Wrong with Fetal Rights.” Harvard Women's Law Journal 10:958.Google Scholar
Griggs v. Duke Power Co. (1971). 401 U.S. 424.Google Scholar
Hayes v. Shelby Memorial Hospital (1984). 726 F.2d 1543.Google Scholar
In re Ruiz (1986). 27 Ohio Misc. 2d 31.Google Scholar
International Union, UAW v. Johnson Controls, Inc. (1989). 886 F.2d 871 (7th Cir.).Google Scholar
International Union, UAW v. Johnson Controls, Inc. (1991). 111 S.Ct. 1196.Google Scholar
Johnsen, D.E. (1986). “The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection.” Yale Law Journal 95:599625.Google Scholar
Johnsen, D.E. (1989). “From Driving to Drugs: Governmental Regulation of Pregnant Women's Lives After Webster.” University of Pennsylvania Law Review 138:179216.CrossRefGoogle Scholar
Kolder, V.E.B., Gallagher, J., and Parsons, M.T. (1987). “Court-Ordered Obstetrical Interventions.” The New England Journal of Medicine 316:1192–96.Google Scholar
Little, B.B., Snell, L.M., Klein, V.R., and Gilstrap, L.C. III (1989). “Cocaine Abuse During Pregnancy: Maternal and Fetal Implications.” Obstetrics and Gynecology 73:157–60.Google Scholar
McDonnell Douglas Corp. v. Green (1973). 411 U.S. 792.Google Scholar
McNulty, M. (1987-88). “Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses.” Review of Law and Social Change 16:277319.Google Scholar
Mezey, S.G. (1992). In Pursuit of Equality: Women, Public Policy, and the Federal Courts. New York: St. Martin's Press.Google Scholar
Moss, K. (1990). “Substance Abuse During Pregnancy.” Harvard Women's Law Journal 13:278–99.Google Scholar
Muller v. Oregon (1908). 208 U.S. 412.Google Scholar
New York Times (1990). “The Bias in Drug Arrests of Pregnant Women.” August 11, A25.Google Scholar
New York Times (1991a). “Court Backs Right of Women to Jobs With Health Risks.” March 21, A1.Google Scholar
New York Times (1991b). “Justice Thomas Hits the Ground Running.” March 1, E1.Google Scholar
Office of Technology Assessment (1985). “Reproductive Health Hazards in the Workplace.” Washington DC: U.S. Government Printing Office.Google Scholar
OSHA Safety and Health Standards (1978). 29 C.F.R. 1910.1025Google Scholar
Parness, J.A. (1984). “Protection of Potential Human Life in Illinois: Policy and Law at Odds.” Northern Illinois University Law Review 5:130.Google Scholar
Parness, J.A. (1985). “Crimes Against the Unborn: Protecting and Respecting the Potentiality of Human Life.” Harvard Journal on Legislation 22:97172.Google Scholar
Parness, J.A. (1986). “The Abuse and Neglect of the Human Unborn: Protecting Potential Life.” Family Law Quarterly 20:197212.Google Scholar
Parness, J.A. and Pritchard, S.K. (1982). “To Be or Not to Be: Protecting the Unborn's Potentiality of Life.” University of Cincinnati Law Review 51:257–98.Google Scholar
Pettiti, D.B. and Coleman, C. (1990). “Cocaine and the Risk of Low Birth Weight.” American Journal of Public Health 80:2528.Google Scholar
Planned Parenthood v. Casey (1992). 112 S.Ct. 2791.Google Scholar
Presser, A.L. (1990). “Women at Work: Should ‘Fetal Protection’ Policies Be Upheld?–Yes: For Risky Businesses.” American Bar Association Journal (June) 76:38.Google Scholar
Robertson, J.A. (1983). “Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth.” Virginia Law Review 69:405–64.CrossRefGoogle Scholar
Roe v. Wade (1973). 410 U.S. 113.Google Scholar
Rosenfeld v. Southern Pacific Co. (1971). 444 F.2d 1219.Google Scholar
Shaw, M.W. (1984). “Conditional Prospective Rights of the Fetus.” Journal of Legal Medicine 5:63116.Google Scholar
Sirota, M.L. (1977). “Sex Discrimination: Title VII and the Bona Fide Occupational Qualification.” Texas Law Review 55:1025–72.Google Scholar
Stearns, M.L. (1985-86). “Maternal Duties During Pregnancy: Toward a Conceptual Framework.” New England Law Review 21:595634.Google Scholar
Stellman, J.M. (1979). “The Effects of Toxic Agents on Reproduction.” Occupational Health and Safety April:3643.Google Scholar
United Steelworkers of America v. Marshall (1980). 647 F.2d 1189.Google Scholar
Walker, M.C. and Puzder, A.F. (1984). “State Protection of the Unborn After Roe v. Wade: A Legislative Proposal.” Stetson Law Review 15:237–66.Google Scholar
Wards Cove Packing v. Atonio (1989). 490 U.S. 642.Google Scholar
Webster v. Reproductive Health Services (1989). 492 U.S. 490.Google Scholar
Wright v. Olin Corp. (1982). 697 F.2d 1172.Google Scholar
Zuckerman, B., et al. (1989). “Effects of Maternal Marijuana and Cocaine Use on Fetal Growth.” New England Journal of Medicine 320:762–68.Google Scholar