Constitutional Analysis of Home Birthing

Constitutional Analysis of Home Birthing Bans

Before the modern age of medicine, home birthing was the most common way that women gave birth in the United States. Until the middle of the 20th century, more babies were born at home than in hospitals and midwives provided essential service in ensuring the safety of both mothers and infants. Today, the vast majority of American births occur in hospitals but there are strong arguments favoring a return to home birthing. In general, the medical community opposes home birthing and various states have attempted to interfere with the private rights of women by proposing legislation to criminalize the procedure of giving birth at home. While there may be some legitimate concerns in relation to ensuring the safety of mothers and infants, it is likely unconstitutional to ban home birthing outright and only regulations that are reasonably related to safety will survive a constitutional challenge.

Privacy Rights and the Modern U.S. Constitution

While there is no explicit mention of any rights to privacy in the Constitution, the U.S. Supreme Court established such a right in 1965, in the case of Griswold v. Connecticut, referring to a penumbra or "umbrella" of privacy that should be respected in connection with matters that concern only the individual and that fall within what should fairly be considered highly private matters (Dershowitz, 2002; Friedman, 2005). That particular case concerned the rights of private individuals to use birth control and laid the groundwork for Roe v Wade, decided eight years later (Dershowitz, 2002; Friedman, 2005).

The concept of regulating the choices pertaining to the home birthing decision fall well within the penumbra of privacy as that concept has been applied to matters of liberty under the 14th Amendment in the decades since Griswold and Roe (Dershowitz, 2002; Friedman, 2005).

Reasonable Regulation vs. Unreasonable Prohibition

Because reproductive rights are considered fundamental rights under the Constitution, in order to satisfy constitutional analysis, any laws proposing to restrict those rights must pass the three-pronged strict scrutiny level of review (Dershowitz, 2002; Friedman, 2005). Briefly, statutes that seek to prohibit or regulate conduct that is not constitutionally protected need only satisfy the lowest level of constitutional review: the rational basis test. According to that standard, as long as the state has a rational basis for the regulation and the manner of regulation is logically related to achieving those rational bases, the statute is constitutional (Dershowitz, 2002; Friedman, 2005). For statutes seeking to regulate conduct that is constitutionally protected but not as fundamental rights or the rights of protected "suspect" classes of individuals, courts apply the intermediate level of scrutiny. That test requires that statutes be related to important governmental interests and that the law furthers those interests in ways that are substantially related to those interests (Dershowitz, 2002; Friedman, 2005).