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Tennessee Law Review


women, right to refuse medical treatment, pregnancy, Free Exercise Clause, religion


In Part II, I outline the values protected by the free exercise clause. I also analyze modern free exercise jurisprudence, ending with the status of religious exemptions from laws of general applicability since the Supreme Court's decision in Employment Division v. Smith, which severely limits the situations in which strict scrutiny will be applied to analyze government actions that compels a religious believer to act contrary to her beliefs. In Part III, I first discuss the law regarding the right to refuse medical treatment. I then explore the states' rationales for using the force of law on pregnant women who resist medical treatment that might benefit their fetuses. This Part concludes with a close examination of the reported cases of compelled medical treatment of pregnant women, in particular those cases in which the women have asserted religious motivations for their refusals to comply with physicians' orders. This examination provides the factual context in which the refusals are made and in which treatment is judicially compelled. I conclude that the rationales given by the courts in these cases are profoundly flawed, most particularly because they depend upon a misunderstanding of the state's interest in a viable fetus, as well as a mistaken understanding of a pregnant woman's interest in her own health care and her interest in the health and life of her fetus. Finally, in Part IV, I analyze the free exercise of religion claims made by pregnant women in the non-consensual treatment cases. I conclude that even in a post-Smith world, the state must prove that it has a compelling interest in order to mandate treatment, which indeed it cannot. The state interest in a viable fetus is simply not compelling outside the context of abortion. Pregnant women retain the constitutional right to refuse medical treatment even if such refusals work to the detriment of their fetuses.




69 Tennessee Law Review 563 (2002)