Document Type

Article

Publication Date

2020

Abstract

When parents learn that their 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 end the pregnancy because they believe it is in the 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 the refusal or withdrawal of life-saving treatment for an infant or child who is dying. This constitutional right, grounded in an entirely different jurisprudence than traditional abortion rights, would prohibit states from banning terminations for severe fetal anomaly at any point in the pregnancy. It would therefore mimic the health-or-life exception, which is required for abortion bans that begin after fetal viability. The 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.

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