This Litigation Manual was developed by NACDL’s Criminalization of Reproductive Health Task Force to serve as a comprehensive resource to effectively litigate abortion cases. As the nation’s preeminent criminal defense bar, we are deeply committed to ensuring that the defense community is fully equipped to represent all accused persons at the highest level. This resource is restricted to defense attorneys. It is not to be used by those employed by prosecution or law enforcement organizations or otherwise involved in the prosecution of criminal cases or law enforcement. [Released Nov. 2023]

In the post-Dobbs landscape, states are criminalizing reproductive health in a variety of ways. Law enforcement will likely reach for digital surveillance tools in these cases and defenders will need to know how to counter that evidence. NACDL's Criminalization of Reproductive Health Taskforce and 4th Amendment Center researched categories of pregnancy criminalization, connected them to types of surveillance that law enforcement might use, and connected those to resources. Some tools show up several times on this page, which speaks to the omnipresence of these types of surveillance. 

On March 15, 2022, Wyoming enacted W.S. §35-6-102 (2022) to restrict abortion in the absence of federal abortion protection under the Roe decision. The law is designed such that subsection (b) overrides subsection (a), upon the overturn of Roe. Subsection (a) is a standing restriction on abortions after viability except to preserve the life and health of the mother. Upon certification by the governor, subsection (a) will be replaced with a ban on abortions at all stages, with exceptions for heath of the mother, sexual assault, and incest.

A law first enacted in 1849 bans the abortion of “an unborn child,” with an exception only to save the life of the mother. Wis. Stat. § 940.04. 

In 1848, Virginia passed a law criminalizing performing abortion procedures, except in certain cases where the act was done in “good faith, with the intention of saving the life of such woman or child.” This statute remains valid in West Virginia, post the state’s secession in 1863. 

Washington legalized abortions within the first months of pregnancy with Referendum 20 in 1970 — three years before Roe v. Wade — becoming the first state to do so. Referendum 20 legalized abortion for women “not quick with child” and within the “four lunar months after conception.” Abortion, ch. 3, § 2, 1970 Wash. Sess. Laws 23, 24 (repealed 1992). Prior to Referendum 20, abortion was a criminal offense in Washington, except in cases to preserve the mother's life. Referendum 20 was superseded by Roe v. Wade prior to its repeal in 1992 after Initiative 120 was approved.

In 1975, Virginia enacted a general prohibition against abortion.

1971 – Vermont enacted an abortion statute that criminalized abortion unless the abortion was medically necessary to preserve the woman’s life. Under this statute, only the abortion provider was criminalized and not the person who received the abortion.

In 1876, the Utah Territory adopted a law that banned abortion except to save a pregnant person’s life.

In 1854, Texas first enacted a criminal abortion statute, which was shortly modified into substantially the form that the abortion statute took in 1973, when the Supreme Court held the Texas law unconstitutional in Roe v. Wade.

Absent litigation resulting in a stay or disputing the effective date, Tennessee’s trigger law, TCA 39-15-213, will likely go into effect thirty days after Dobbs judgement is issued, or sometime in mid-August of 2022.  That law bans abortion in virtually all circumstances and punishes the violation of the statute as a C Felony, authorizing imprisonment for a term of three to six years. The defenses are extremely narrow. 

In 2005, South Dakota passed SL 2005, Ch 187 § 6. This law prohibits abortion at all stages of pregnancy "effective on the date states are recognized by the United States Supreme Court to have the authority." Not only does this law ban abortion at all stages, but it also makes it a Class 6 felony for any.

In February 2021, South Carolina passed the “Fetal Heartbeat and Protection from Abortion Act” (S.1, R-2, Act. No 1 of 2021) (the “Act”), but before the Act became law, it was enjoined by a federal district court, and the Fourth Circuit affirmed the injunction. On June 24, 2022, when the decision in Dobbs v. Jackson Women’s Health came out, South Carolina filed an emergency motion to stay the injunction. On June 27, the district court granted the motion. Thus, the Act is now in effect in South Carolina.

In 2019, Rhode Island repealed all pre- (and post-)Roe laws that criminalized (or attempted to criminalize) abortion (R.I. Gen. Laws § 11-3-1; § 11-3-4; § 11-23-5; and § 23-4.12-1 to § 23-4.12-6) via the Reproductive Privacy Act (“RPA”) (R.I. Gen. Laws § 23-4.13-2), which went into effect on June 19, 2019.

Pennsylvania does not currently have a pre-Roe abortion ban or “trigger” law on the books.