Constitutional Analysis of Home Birthing Research Paper

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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).

However, when it comes to fundamental rights (such as voting, liberty, and privacy), any statute seeking to curtail those rights must serve a compelling governmental interest; it must be narrowly tailored to those interests; and it must achieve those objectives in the least restrictive means possible (Dershowitz, 2002; Friedman, 2005).

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In the case of home birthing legislation, the government authorities would likely be entitled to require that midwives be licensed and properly trained and that certain safety guidelines and precautions were in place; they might also ban certain types of procedures if they could be empirically demonstrated to be dangerous. However, any law restricting the right to bear children at home under appropriately safe conditions or that sought to ban the practice outright could not likely survive a constitutional challenge because the penumbra of privacy would trigger the strict level of constitutional review (Dershowitz, 2002; Friedman, 2005)......

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