Pregnancy and communicable disease: A thought experiment

[Volokh, Eugene]

	I'm not sure I quite see the point here.  I'd think that parents
have, if anything, even *more* of a duty to their own children that to
the children of others.  The law certainly imposes such a duty as to
parents' obligations to their born children; it seems to me that the
duty could be equally imposed as to parents' obligations to their
soon-to-be-born children (not ones who'll be aborted, mind you, but ones
who will in a few months become living, breathing human beings).

	So if the state can obligate Moe to take drugs so that she
avoids causing the early death (or birth defect or what have you) of
*other women's* children, it seems to me that it can equally obligate
Moe to take drugs so that she avoids causing the early death of *her
own* child.

	Roe does say that the unique relationship of the mother to a
fetus growing inside her justifies letting her abort the fetus.  But I
don't see why it should follow that it deprives the state of the ability
to prevent harm to an actual child who will be born, whether from that
fetus or some other woman's.

	Eugene



-----Original Message-----
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Wednesday, January 04, 2006 7:17 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: Pregnancy and communicable disease: A thought experiment


In a message dated 1/4/2006 9:22:08 PM Eastern Standard Time,
VOLOKH at law.ucla.edu writes:
I take it that, by analogy to the vaccination cases, the government may
force Moe to take the medical treatment for the German Measles 2 (am I
right?), to minimize huge health dangers to the soon-to-be-born children
of others.  If so, can it really be the case that it may not force Moe
to take the medical treatment for the HIV to
minimize huge health dangers to her own soon-to-be-born child?


            Yes, Eugene is right about the state compelling Moe to take
the medical treatment for German Measles. But with all due respect that
is irrelevant to the resolution of this question.  Why? Because Moe is
not related uniquely to the fetus/child of others. The question is not
whether prenatal life can be protected generally.  Rather, it is given
the unique relationship between a mother and her prenatal child, the
vaccination paradigm applies. Showing that Moe can be compelled to
protect other prenatal life doesn't answer this question. For the
purposes of this example, other prenatal life occupies the same logical
place as other post natal life; no unique relationship exists between
Moe and either. Eugene's argument might work if he scraps the uniqueness
requirement, but he has indicated is not inclined to do so.

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware