The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health

Section One of this Article discusses the effect of drug policy on the detention and confinement of pregnant women. This section also outlines three types of "fetal protection measures" that result in the detention, confinement, or incarceration of pregnant women in the name of fetal health and examines the legal rationales behind these mechanisms. Section One then questions whether detention is an effective way to reach the state's articulated goal of better fetal outcomes. Section Two offers a discussion of the constitutional rights at issue. This section addresses the ways in which detention violates two essential components of women's rights: the right to be free from unwarranted detention and confinement and the right to reproductive decision making that is based in both the privacy and liberty doctrines. Section Two also focuses on the standards currently used by the United States Supreme Court both to assess the constitutionality of civil commitment, detention, and other types of confinement by the state and to evaluate violations of women's reproductive rights. With respect to the Court's detention and confinement jurisprudence, the Article examines both United States v. Salerno and Addington v. Texas and argues that the physical restraint of non-compliant pregnant women is unconstitutional because the state can neither articulate a satisfactory compelling interest nor demonstrate that confinement is the least restrictive alternative available to protect the state's interest.