Abstract

Excerpted From: Adrienne R. Ghorashi and DeAnna Baumle, Legal and Health Risks of Abortion Criminalization: State Policy Responses in the Immediate Aftermath of Dobbs, 37 Journal of Law and Health 1 (October 20, 2023) (212 Footnotes) (Full Document)

The Supreme Court's callous treatment of abortion rights in Dobbs v. Jackson Women's Health cast a national spotlight on law and law enforcement's role in criminalizing reproductive healthcare. The Dobbs ruling uprooted nearly 50 years of federal and state abortion rights jurisprudence by holding that the Constitution did not confer a right to abortion and overturning the precedents set by Roe and Casey, allowing states to ban pre-viability abortions freely. The swift ramifications of Dobbs have unleashed legal chaos across the abortion ecosystem for providers, patients, assisters, and the general public. Previously unconstitutional laws that went unenforced for decades under Roe suddenly became de facto bans on abortion as they either took effect or threatened to.

However, it is important to recognize that the promise of Roe served as little more than a veneer of constitutional protection, as states could still overregulate abortion to the point that the “right” was rendered meaningless for many. Shortly after the landmark ruling, the courts drew sharp distinctions between the right to abortion and abortion access, allowing states to place obstacles in the path of abortion seekers, such as mandatory waiting periods and bans on insurance coverage. From 1973 to 2021, over 1,300 state abortion restrictions were enacted. Restrictions on where abortion could be provided and by whom were passed under the thinly veiled guise of protecting women's health, such as Targeted Regulation of Abortion Providers (TRAP) laws. Singling out abortion from other forms of healthcare, started as a movement to consolidate power and status amongst physicians, which has reinforced political divides and stigmatized care. Navigating the barriers created by abortion care's increasing medicalization and regulation required resources and privileges. State legislatures' unrelenting encroachment on access to abortion over the past decades played a key role in Roe v. Wade's abrupt expiration and laid the groundwork for Dobbs.

Despite Roe's shortcomings, many court-imposed injunctions on state abortion bans and restrictions relied on Roe and its progeny. Post-Dobbs, several states were able to quickly (and in some cases, immediately) enforce abortion bans and restrictions, both new and old. Within six months of the Dobbs ruling, nearly a third of states severely restricted abortion with significant consequences for public health. States attempting to protect abortion access also moved swiftly in anticipation of an uptick in the need for abortion services from out-of-state patients. States were sharply divided in their response to Dobbs, and issues of interjurisdictional conflict over abortion bans arose without clear theoretical or practical answers. Could a state pass a law banning someone from traveling out-of-state to receive an abortion? Could a provider or abortion fund face legal action for serving patients from a state where abortion is banned? Would abortion seekers become the target of criminal investigation and prosecution? While the Dobbs majority asserts that the previous legal standard was “unworkable,” the complexity of the legal landscape has grown exponentially as battles over local, state, and federal authority continue to play out with no end in sight.

The murkiness of these untested legal waters has created a chilling effect that pervades not only the provision of abortion care, but any healthcare that might affect a pregnancy. Currently, the vast majority of abortion laws and penalties do not apply explicitly to the pregnant person, and in fact, many include specific exemptions. Instead, pregnancy criminalization more often occurs when law enforcement uses broadly-applicable criminal laws (such as homicide or conspiracy) to charge a pregnant person. Yet any and all abortion restrictions threaten to “widen the net” that can implicate individuals in the criminal legal system, whether or not an abortion is involved. When faced with the threat of lawsuits, prison sentences, or license revocation, the legal risk imposed on providers and others involved in abortion leaves their hands tied. Hospitals and institutions may prohibit willing providers from exercising their best medical judgment in favor of more risk-averse policies. Additionally, with the increasing availability of abortion pills and information online, laws targeting medication, abortion, or abortion pills might be enforced against pregnant people and anyone who attempts to help them. For pregnant people unable to access essential healthcare, it is predicted that the risk of criminal consequences will rise drastically under Dobbs. In succeeding Roe's legacy, Dobbs threatens to exacerbate existing inequities by enabling mass surveillance, jeopardizing provider-patient confidentiality, and criminalizing care.

This Article reports on the detailed collection and analysis of abortion laws across the 50 U.S. states and D.C. immediately before and after Dobbs. The Article will discuss existing abortion restrictions that are newly relevant under the ruling and summarize emerging trends in state legislation in an effort to further illuminate the intersections of abortion law, criminalization, and public health. Part II of the article provides background on the role of law and law enforcement in criminalizing pregnancy and how Dobbs expands its reach. The section will also introduce the interdisciplinary legal epidemiology methods used to construct a longitudinal post-Dobbs state policy dataset and its utility in better understanding the public health effects of regulations on abortion. Part III characterizes the different types of state abortion restrictions and bans enacted prior to and immediately after Dobbs and raises questions surrounding their legal enforceability. This Part will also describe the ambiguous nature of how criminal and civil penalties for violations of abortion law may apply to providers, patients, and helpers.

Part IV shifts focus to proactive policy measures attempting to mitigate legal risk in a post-Dobbs setting. As some states have moved swiftly to institute abortion bans and restrictions with free reign under Dobbs, others have responded by strengthening existing protections and enacting new measures to expand abortion access. The urgent necessity to protect abortion patients and providers from potential legal consequences has forced states to respond in innovative but untested ways. Interstate “shield laws” are one example of innovative policy responses that have spread hastily in response to the pressing concerns of increased criminalization and liability. These laws attempt to provide legal shelter for anyone involved in seeking or providing abortion care that is lawful in the receiving state but may be banned elsewhere. This part will detail key provisions of interstate shield laws and their proliferation and variation across states.

Given the integral role that reproductive health data plays in investigating and prosecuting abortion-related offenses, certain states and localities have also taken measures to guard data privacy. Protections for clinic and patient confidentiality may help to mitigate some of the anticipated damage from law enforcement infiltration or anti-abortion zealots. Still, the ubiquitous nature of digital surveillance and personal data collection, coupled with gaps in legal oversight, make effective regulation a challenge to address. After a brief overview of gaps in current data privacy protections, Part V will highlight examples of state-level data privacy measures related to abortion care that may bolster protections for providers and patients.

Finally, Part VI will discuss the inequitable public health implications of abortion criminalization and potential research and policy opportunities for safeguarding abortion access in a post-Roe landscape. Using a reproductive justice framework, this part will discuss how abortion policy, both pre- and post-Dobbs, has undermined people's autonomy and continued to perpetuate racialinequity and systemic oppression. The Article hypothesizes that nimble policy responses are a critical interim strategy to reduce legal risk and public health harm from the immediate fallout of Dobbs, while sustained research on the impacts of these laws is needed to ensure the effectiveness of policy solutions. To remediate the current public health crisis, policy solutions should be reproductive justice-informed and prioritize communities historically marginalized from care and targeted by law enforcement. A collaborative, interdisciplinary approach can be used to tailor strategies to the most critical policy gaps and promote health and racial equity. Engaging a diverse and inclusive coalition of stakeholders can help center the needs of communities most likely impacted. A reproductive justice lens is essential to ensuring that past harms and inequities are not replicated as we move forward from the failed promise of Roe.

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Major changes to the landscape of abortion law and service delivery have rapidly proliferated since the Supreme Court's decision in Dobbs, in some cases overnight. However, we have yet to see the full extent of this legal and public health crisis, which will be felt for years to come. Overlapping laws regulating and criminalizing abortion have led to an exceedingly complex web of restrictions that has only intensified under Dobbs, without clear resolutions in sight. The risks of criminalization and threats of legal uncertainty related to abortion care have chilled the availability and accessibility of reproductive health services. The negative consequences will fall inequitably across populations, as was already the reality under the failed promise of Roe. States have taken innovative countermeasures addressing legal risk and data privacy in order to safeguard abortion access but significant gaps remain. Scientific legal mapping methods can be integrated to track and evaluate post-Dobbs legislative responses and inform effective policy solutions. To reckon with and learn from our past, racial and health equity must be prioritized in research and policymaking at all levels. Despite the many harms suffered, Dobbs also presents an opportunity to rebuild a more inclusive and equitable vision of reproductive justice for all.

Adrienne is a Lead Law and Policy Analyst and DeAnna is a Senior Law and Policy Analyst at CPHLR.