From 2006 to the 2022 reversal of Roe, we've documented nearly 1,400 cases of pregnancy-related criminalization across the U.S. State actors — including police, prosecutors, healthcare workers, family regulation workers, and judges — have deprived pregnant people of virtually every constitutional right in the name of protecting "unborn life." The cases show that pregnancy outcomes other than abortion, including birth and pregnancy loss, have been far more likely to result in criminalization. Explore the report.

A few days after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, the Biden administration issued guidance seeking to reassure doctors and patients that the federal HIPAA Privacy Rule would allow women to feel confident that they could still seek reproductive healthcare without worrying that the information in their medical records would end up in the hands of police. We write this essay to emphasize how, rather than revealing the strength of healthcare privacy protections in U.S. law, Dobbs and the Biden administration’s highlighting of limited HIPAA protections and seriously inadequate protection of mobile app data draw crucial attention to what has always been a relatively weak set of privacy models.

In 2013, state legislators sitting at the heart of America’s opiate epidemic created the crime of fetal assault. Although they offered a fairly standard series of criminologic rationales to justify the legislation, they also posited that the creation of this crime was a precondition to secure treatment (or care) resources for women addicted to opiates. This extraordinary supposition—that criminalizing conduct creates a road to care—is an outgrowth of three interlinked socio-legal trends: the building of the carceral state, the criminalization of poverty, and the rapid growth, since the late 1980s, of a new generation of problem-solving courts. Framed in this historical context, this legislative rationale seems less extraordinary and more a predictable outgrowth of these disturbing trends. As such, the legislative rationale also provides a unique window into what actually happens to those who are the target of this form of criminalized care and a basis from which to evaluate the wisdom of these trends.

Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women's autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law. This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states' chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that FPLs unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.

This Report outlines current legal statutes that criminalize abortion and the impact overturning Roe v. Wade would have on laws to prosecute and incarcerate those providing, receiving, or assisting with abortions. It details the risk that, without protections provided by Roe v. Wade, many states can and will continue to pass laws that further inflame the national crisis of overcriminalization and mass incarceration. [Released August 2021]

This research brief provides preliminary findings from a multi-year research project to understand who has been targeted by criminalization for self-managing their abortion and how these cases make their way into and through the criminal system. From 2000 to 2020, we identified 61 cases of people who were criminally investigated or arrested for allegedly ending their own pregnancy or helping someone else do so. Cases occurred across 26 states, most of which emerged in Texas, followed by Ohio, Arkansas, South Carolina, and Virginia. Understanding self-managed abortion criminalization over the last twenty years, lends insight into what the criminalization of abortion is likely to look like in a post-Roe America.

This article outlines the complex and rapidly shifting legal landscape of trigger laws and new legislation that impact abortion care, dissects questions raised related to cross-border enforcement of abortion restrictions, raises potential interactions of state law with existing federal laws such as the Emergency Medical Treatment and Labor Act (EMTALA) and the Health Insurance Portability and Accountability Act (HIPAA), addresses possible interactions between abortion restrictions and existing state laws that contain liability provisions for aiding and abetting as well as conspiracy, and highlights protective measures that have been enacted both at the state and federal level in an effort to preserve access to reproductive health care.

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