Informing Consent: Medical Malpractice and the Criminalization of Pregnancy

Laura Beth Cohen*

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ duties to obtain informed consent from their patients before administering medical tests. Malpractice liability can deter providers from forcing women into the Child Protective Services system and forestall the use of civil child protective laws to criminalize pregnancy.

*J.D., May 2018, University of Michigan Law School. I would like to thank all the Michigan Law Review editors who worked on this piece, particularly Mel Cassel, Sally Gu, Sam Jaffe, Paul Hoversten, and Charlie Stewart. I would also like to thank Lynn M. Paltrow, Nancy Rosenbloom, and everyone at National Advocates for Pregnant Women, both for the civil rights work they do on behalf of pregnant and parenting people and for their help on this Note. Lastly, I’d like to thank all of Volume 116, especially the Editorial Board, for giving me such an amazing year.

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