美國에서의 姙産婦의 行爲에 대한 規制의 違憲性에 관한 小考

Abstract

This article aims to review some constitutional issues which can be raised by the regulation of women’s conduct during pregnancy. First, this article reviews state efforts to control women’s conduct during pregnancy. Some states in the U.S. have tried to regulate pregnant women’s conduct indirectly through such postnatal sanctions as criminal prosecution, civil penalties, and tort liability. In this case, the state argued that the imposition of criminal prosecution against drug addicted pregnant women is necessary to protect the potential human life and welfare. When a drug-addicted women becomes pregnant, however, the only justifiable way to escape criminal charge is to abort the fetus. As a result, the state concerned failed to achieve its goal, the protection of potential human life. In addition, criminal sanctions may deter the pregnant woman from seeking the pre-natal care necessary to deliver a healthy child, especially if the woman may use drugs. Second, this article considers the constitutional implications of criminal prosecution of drug-addicted mothers. A specific issue is whether criminal prosecution of drug addicted pregnant women deprives women of their fundamental right to privacy. While the right to privacy is not explicitly mentioned in the Constitution, a line of U. S. Supreme Court cases beginning with the famous case of Griswold v. Connecticut recognized that a right to personal privacy does exist in the penumbras of several Amendments. In 1973, the United States Supreme Court established a woman’s constitutional right to have an abortion in Roe v. Wade. In addition, the right to privacy protects equally the choice to bear children and the choice to refrain from bearing them. When a woman has decided to have a child, despite her drug use, the fear of criminal prosecution unduly burdens the woman’s choice to have the child because it encourages her to get an abortion so that she can avoid criminal prosecution. Accordingly, it seems the effective approach is to enable women to receive prenatal care without a threat of criminal prosecution.