Document Type

Article

Publication Date

2020

Abstract

When parents learn that their potential child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to terminate the pregnancy because they believe it is in their potential child’s best interest to avoid a short and painful life. I argue that these decisions should be protected in the same way that parental healthcare decisions are constitutionally protected after birth—including a parent’s refusal or withdrawal of life-saving treatment for an infant or child who is very sick or dying. Parental autonomy ensures that parents can make these end-of-life choices for their living child so long as the state cannot prove that the parents are acting against their child’s best interest. If this parental autonomy right were extended to allow expectant parents to terminate pregnancies affected by a severe fetal diagnosis, it would be grounded in an entirely different jurisprudence than traditional abortion rights, which are grounded in the right to privacy. The new right would prohibit states from banning terminations for severe fetal anomaly at any point in the pregnancy, even after a state’s abortion ban takes effect. It would therefore mimic the health-or-life exception, which is required for abortion bans that begin after fetal viability. This Article distinguishes prenatal diagnoses that carry a significant, or certain, risk of childhood death from those that cause only disability. Only termination decisions based on the former would fall within the right, although decisions based on the latter would still be protected before viability under Planned Parenthood v. Casey. This distinction parallels parental autonomy rights for children after birth. This Article also builds on efforts to see abortion as a parenting decision more generally and to change the dialogue surrounding abortion and disability.

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