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Abstract

woman’s constitutional right to have an abortion. Although other scholars have criticized prenatal substance abuse prosecutions based on various constitutional and public policy arguments, the tension between prenatal substance abuse prosecutions and the Supreme Court’s abortion doctrine has not been adequately examined. I argue that prosecuting women for the crime of prenatal substance abuse punishes women for not exercising their right to an abortion and could even incentivize some women to obtain abortions in order to avoid criminal prosecution. I also examine the science underlying abortion doctrine, fetal health, and substance abuse which reveals that (1) the right to abort the fetus is the most unfettered when the possibility of harm to the fetus is also the greatest, which is during the first trimester and (2) although the fetus is vulnerable to harm from both illegal and legal substances, especially during the first trimester, a causative link between prenatal substance abuse and fetal or infant harm is often difficult to establish.

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