Human Rights Crisis: Abortion in the United States After Dobbs

[1] This paper refers interchangeably to “people who can become pregnant” and “women and girls” as the targets of laws restricting abortion. Although most people who can become pregnant and require abortion services are cisgender women, we recognize that people with diverse gender identities may also need abortions and are profoundly affected by abortion restrictions. For more information on the need for abortion services amongst trans, non-binary and gender diverse people in the United States, see H. Moseson et al., Abortion experiences and preferences of transgender, nonbinary, and gender-expansive people in the United States, 224 Am. J. Obstetrics & Gynecology 4 (2021); American College of Obstetricians and Gynecologists, ACOG Committee Opinion: Health Care for Transgender and Gender Diverse Individuals, 137 Obstetrics & Gynecology 3, p. e80-e81 (Mar. 2021),              https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2021/03/health-care-for-transgender-and-gender-diverse-individuals.pdf.

[2] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (Dobbs v. JWHO).

[4] Some states, such as Indiana and Ohio, have enacted bans that are currently under injunction as litigation moves forward. See “After Roe Fell: Abortion Laws By State,” Center for Reproductive Rights (updated in real time),  https://reproductiverights.org/maps/abortion-laws-by-state/. In the November 2022 election, Kentucky voters rejected a ballot initiative to specify that the state constitution does not protect the right to abortion; however, the impact of the initiative is not yet clear, and Kentucky’s trigger ban is still in place. See A. Rickert, “Kentucky voters reject amendment that would have affirmed no right to abortion,” NPR (9 Nov. 2022),   https://www.npr.org/2022/11/09/1134835022/kentucky-abortion-amendment-midterms-results. Other state bans have been blocked by courts: Arizona, North Dakota, Utah, and Wyoming. “Tracking the States Where Abortion is Now Banned,” The New York Times (updated 6 Jan. 2023), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html. 

[5] See id. See also Center for Reproductive Rights, “After Roe Fell: Abortion Laws By State,” https://reproductiverights.org/maps/abortion-laws-by-state/. Ohio passed a similar six-week ban, but the provision has been blocked by a court and is currently on hold indefinitely. See “Tracking the States Where Abortion is Now Banned,” The New York Times (updated 6 Jan. 2023), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.

[6] Guttmacher Institute, “100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering Abortion Care” (6 Oct. 2022), https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-stopped-offering-abortion-care.                 

[7] Guttmacher Institute, State Legislation Tracker: Medication Abortion (updated 31 Dec. 2022) https://www.guttmacher.org/state-policy.

[8] Okla. Stat. tit. 63, §1-745.33-.34, .38 (2022); Idaho Code §§ 18-8804, 18-8807; Texas Heartbeat Act, Senate Bill 8 (SB 8) (20 Mar. 2021). See also S. Murphy, “Oklahoma Governor Signs the Nation’s Strictest Abortion Ban,” AP News (25 May 2022), https://apnews.com/article/abortion-us-supreme-court-health-texas-oklahoma-ad37e8db8a0f3fd9f4fcd215f8a3ed0a. These laws are still in effect post-Dobbs.

[9] See CERD Committee, Concluding observations on the combined tenth to twelfth reports of the United States of America (U.N. Doc. CERD/C/USA/CO/10-12) (21 Sept. 2022), ¶ 35. See also Global Justice Center, “United States of America: Submission to the United Nations Committee on the Elimination of Racial Discrimination,” pp. 11-12  https://www.hrw.org/sites/default/files/media_2022/07/SBRWI_HRW_GJC_AI_CERDShadowReport.pdf; Guttmacher Institute, “Inequity in US Abortion Rights and Access” (17 Jan. 2023),  https://www.guttmacher.org/2023/01/inequity-us-abortion-rights-and-access-end-roe-deepening-existing-divides.

[10] Abortion Care Network, “Communities Need Clinics, The New Landscape of Independent Abortion Clinics in the United States” (2022 Report), https://abortioncarenetwork.org/wp-content/uploads/2022/12/communities-need-clinics-2022.pdf.

[11] Guttmacher Institute, “100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering Abortion Care” (6 Oct. 2022), https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-stopped-offering-abortion-care.

[12] For more on the autonomy, dignity and equality impacts of abortion restrictions, see CEDAW Committee, Inquiry concerning the U.K. and Northern Ireland under article 8 of the Optional Protocol to CEDAW (U.N. Doc. CEDAW/C/OP.8/GBR/1, 17) (6 Mar. 2018) (“criminalization has a stigmatizing impact on women and deprives them of their privacy, self-determination and autonomy of decision, offending women’s equal status, constituting discrimination.”). See also Working Group on the issue of discrimination against women in law and in practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017) (“both the CEDAW Committee and the WGDAW determined that the right to safe termination of pregnancy is an equality right for women.”).

[13] Foley Hoag LLP, legal counsel to the Global Justice Center, interviewed medical professionals, including three OBGYNs (Drs. Harris, Serapio, and Drey), as well as a researcher who studies the impact of abortion on women (Dr. Foster). The methodology for these interviews included providing each interviewee with background on the purpose of the submission to the Mandate Holders and then asking about their general views about the change in laws as experienced by them, and their experience (before and after the change) performing abortions, treating patients who sought abortions, or otherwise treating patients. PHR engaged in a series of discussions with various medical sector stakeholders and clinicians post-Dobbs to understand the scope and nature of impacts of the decision on clinicians in the U.S., including specifically medical students through PHR’s Student Advisory Board.

[14] Interview by Foley Hoag LLP with Dr. Lisa Harris (4 Nov. 2022).

[15] Roe v. Wade, 410 U.S. 113, 153 (1973) (recognizing “the right of the woman to choose to have an abortion before viability”).

[16] Id. Dr. Harris also reported that many colleagues only feel comfortable providing abortion care in hospital settings, rather than clinics where abortion care is normally provided because they perceive the risk of prosecution to be lower in hospitals than in an outpatient setting. See Mich. Const. art. 1, § 28 (recognizing a fundamental individual right to reproductive freedom, including abortion care, adopted by ballot initiative Nov. 2022).

[17] Interview by Foley Hoag LLP with Dr. Elissa Serapio (29 July 2022).

[19] Interview by Foley Hoag LLP with Dr. Eleanor Drey (15 July 2022).

[20] See e.g., E. Woodruff, “Louisiana hospital denies abortion for fetus without a skull” (17 Aug. 2022), https://www.nola.com/news/healthcare_hospitals/article_d08b59fe-1e39-11ed-a669-a3570eeed885.html.                          A Louisiana woman was denied an abortion in by a hospital after her fetus was diagnosed with acrania – developing without a skull – a condition considered “uniformly fatal in the perinatal period.” Because acrania did not appear on a state list of conditions considered to render a fetus “medically futile,” Louisiana doctors declined to perform the abortion, despite the physical and psychological health risks of continuing a pregnancy that will end in stillbirth or death within hours of birth.

[21] See generally Sens. Elizabeth Warren et al., Post-Roe Abortion Bans Threaten Women’s Lives: Health Care Providers Speak Out on the Devastating Harm Posed by Abortion Bans and Restrictions (Oct. 2022),  https://www.warren.senate.gov/imo/media/doc/Abortion%20Care%20Oversight%20Report1.pdf. See also T. Weinberg, “Missouri doctors fear vague emergency exception to abortion ban puts patients at risk,” Missouri Independent (2 July 2022),               https://missouriindependent.com/2022/07/02/missouri-doctors-fear-vague-emergency-exception-to-abortion-ban-puts-patients-at-risk/.

[22] For example, in the Dominican Republic, where abortion is criminalized, “[m]edical providers said that criminal penalties for abortion made it difficult for them to exercise their best judgment and provide the best standard of care when their pregnant patients faced serious health risks.” Human Rights Watch, “‘It’s Your Decision, It’s Your Life’ The Total Criminalization of Abortion in the Dominican Republic” (19 Nov. 2018), https://www.hrw.org/report/2018/11/19/its-your-decision-its-your-life/total-criminalization-abortion-dominican-republic. In Poland, where abortion is almost completely outlawed, pregnant women with cancer have been prevented from obtaining an abortion or otherwise accessing chemotherapy due to the potential harm to the fetus, placing more importance on the fetus than the pregnant person. See Human Rights Watch, “Regression on Abortion Harms Women in Poland” (26 Jan. 2022), https://www.hrw.org/news/2022/01/26/regression-abortion-harms-women-poland; Amnesty International, “Poland: A Year On, Abortion Ruling Harms Women” (19 Oct. 2021),  https://www.amnesty.org/en/latest/news/2021/10/poland-a-year-on-abortion-ruling-harms-women/.

[23] See UC Davis Health, “7 things to know about ectopic pregnancy” (22 Mar. 2022),  https://health.ucdavis.edu/news/headlines/7-things-to-know-about-ectopic-pregnancy/2022/05; J. Tenore, Ectopic Pregnancy, 61(4) Am Fam Physician 1080 (2000), https://www.aafp.org/pubs/afp/issues/2000/0215/p1080.html. 

[24] F. Sellers & F. Nirappil, “Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care,” The Washington Post (16 July 2022), https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care.

[27] See P. Belluck, “They Had Miscarriages, and New Abortion Laws Obstructed Treatment,” The New York Times (17 July 2022), available at https://www.nytimes.com/2022/07/17/health/abortion-miscarriage-treatment.html. See also A. Redinger & H. Nguyen, Incomplete Abortions, StatPearls [Internet] (27 June 2022), https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”).

[28] See generally A. Redinger & H. Nguyen, Incomplete Abortions, StatPearls [Internet] (27 June 2022), https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”).

[29] See generally A. Redinger & H. Nguyen, Incomplete Abortions, StatPearls [Internet] (27 June 2022),  https://www.ncbi.nlm.nih.gov/books/NBK559071/ (describing “complications that can arise after the management of incomplete abortion including death, uterine rupture, uterine perforation, subsequent hysterectomy, multisystem organ failure, pelvic infection, cervical damage, vomiting, diarrhea, infertility, and/or psychological effects.”). See also R. Westwood, “Bleeding and in pain, she couldn’t get 2 Louisiana ERs to answer: Is it a miscarriage?” NPR (29 Dec. 2022), https://www.npr.org/sections/health-shots/2022/12/29/1143823727/bleeding-and-in-pain-she-couldnt-get-2-louisiana-ers-to-answer-is-it-a-miscarria.

[30] See e.g., Fla. Stat. § 390.0111 (1)(a) (requiring for any abortion after 15 weeks gestational age that “Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.”)

[31] Interview by Foley Hoag LLP with Dr. Elissa Serapio (29 July 2022).

[33] J. Glenza, “A Severe Chilling Effect’: Abortion Bans Will Inhibit Doctors’ Advice to Patients, Experts Fear,” The Guardian (6 May 2022),  https://www.theguardian.com/world/2022/may/06/abortion-bans-patient-doctor-medical-advice; (Noting the chilling effect of abortion bans among doctors counseling patients on options during pregnancy, including whether abortion care could be available in another jurisdiction).

[34]  S. Simmons-Duffin, “Doctors Weren’t Considered in Dobbs, But Now They’re on Abortion’s Legal Front Lines,” NPR (3 July 2022), https://www.npr.org/sections/health-shots/2022/07/03/1109483662/doctors-werent-considered-in-Dobbs-but-now-theyre-on-abortions-legal-front-lines. For more on criminalization, see infra Section I(B).

[35] Interview by Physicians for Human Rights with Dr. Jennifer Griggs (22 Nov. 2022).

[38] Interview by Foley Hoag LLP with Dr. Lisa Harris (4 Nov. 2022). Dr. Harris described a patient pregnant with twins who experienced a complication requiring the termination of one fetus for the other to survive. This procedure should normally be completed after a certain stage of pregnancy to minimize the chance of complications or death. However, due to concerns over the shifting legal landscape, the patient elected to have the procedure earlier than medically advised. This decision – prompted by abortion bans and legal uncertainty – placed the health of the mother and the remaining fetus at risk.

[39] See World Health Organization, “Adolescent Pregnancy” (15 Sept. 2022), https://www.who.int/news-room/fact-sheets/detail/adolescent-pregnancy; D. Jeha et. al., A review of the risks and consequences of adolescent pregnancy, 8 J. Neonatal-Perinatal Medicine (2015), pp. 1, 3.

[40] D. Jeha et. al., A review of the risks and consequences of adolescent pregnancy, 8 J. Neonatal-Perinatal Medicine (2015), p. 3.

[42] Guttmacher Institute, “Parental Involvement in Minors’ Abortions,” (updated 1 Jan. 2023),  https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions.

[43] In some states with parental notification requirements, there are provisions for judicial bypass of the requirement; however, the process for securing a bypass is daunting and unworkable for many girls and adolescents, requiring them to demonstrate that they are “1) sufficiently mature and well enough informed to make an abortion decision without parental involvement, and/or that 2) parental involvement is not in their best interests.” Perversely, these requirements can result in a judicial finding that a minor is “not sufficiently mature” to make an informed abortion decision, therefore forcing the child to remain pregnant and give birth. See, e.g., Human Rights Watch, “The Only People It Really Affects Are the People It Hurts” (11 Mar. 2021), https://www.hrw.org/report/2021/03/11/only-people-it-really-affects-are-people-it-hurts/human-rights-consequences.

[44] Id. In most states, to obtain a judicial waiver, young people must demonstrate that they have sufficient maturity to have an abortion without parental involvement, or that parental involvement is not in their best interest. Perversely, these requirements can result in a judicial finding that a minor is “not sufficiently mature” to make an informed abortion decision, therefore forcing the child to remain pregnant and potentially give birth.

[45] Human Rights Watch, “Access Denied: How Florida Judges Obstruct Young People’s Ability to Obtain Abortion Care” (19 Feb. 2023), https://www.hrw.org/news/2023/02/09/us-florida-judges-block-youth-abortion-access

[46] S. Roberts et al., Risk of violence from the man involved in the pregnancy after receiving or being denied an abortion, 12 Cent BMC Medicine 144 (2014) (explaining that women denied an abortion remain tethered to abusive partners and at risk for continued violence, even if they leave the relationship).

[48] See Center for Disease Control and Prevention, Violence Against Native Peoples Fact Sheet (2020), https://www.cdc.gov/injury/pdfs/tribal/Violence-Against-Native-Peoples-Fact-Sheet.pdf (estimating that 48% of American Indian and Alaskan Native women will experience sexual violence, physical violence, and/or stalking from an intimate partner) (citing The National Intimate Partner and Sexual Violence Survey, Center for Disease Control and Prevention, Violence Prevention (updated 19 July 2021),  https://www.cdc.gov/violenceprevention/datasources/nisvs/index.html); Women of Color Network, “Life in the Margins: Expanding Intimate Partner Violence Services for Women of Color by Using Data as Evidence” (June 2017),                https://vawnet.org/material/life-marginsexpanding-intimate-partner-violence-services-women-color-using-data-evidence (showing that “[a]pproximately four out of every ten non-Hispanic Black women . . . have been the victim of rape, physical violence, and/or stalking by an intimate partner in their lifetime”).

[49] Of the statutes banning abortion in the US, none include exceptions to protect a pregnant person’s mental health. Some specifically exclude physical harms related to psychological distress. For example, Idaho’s law explicitly states that “No abortion shall be deemed necessary to prevent the death of the pregnant woman because the physician believes that the woman may or will take action to harm herself” (Idaho Code § 18-622(1)(a)).

[50] Interview by Foley Hoag LLP with Dr. Eleanor Drey (15 July 2022).

[51] See U.S. Dept. of Health and Human Services, Reinforcement of EMTALA Obligations specific to Patients who are Pregnant or are Experiencing Pregnancy Loss (11 July 2022), https://www.cms.gov/files/document/qso-22-22-hospitals.pdf. See also U.S. Dept. of Health and Human Services, Letter to U.S. Governors on Reproductive Health Care (26 Aug. 2022), https://www.hhs.gov/sites/default/files/hhs-letter-to-governors-reproductive-health-care.pdf.

[52] Interview by Foley Hoag LLP with Dr. Eleanor Drey (15 July 2022). Dr. Drey reported treating a pediatric patient whose pregnancy was caused by rape, who experienced post-traumatic stress disorder symptoms every time the fetus moved and was at risk of suicide as a result.

[53] Evidence from other restrictive contexts confirms this connection. In El Salvador, the state’s draconian abortion ban has driven many pregnant women and girls to end their own lives. According to a 2014 report, suicide accounts for 57% of deaths of pregnant females aged 10-19 in El Salvador, though due to stigma surrounding adolescent pregnancy and sexuality, this number may be much higher than reported. Amnesty International, “On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador” (25 Sept. 2014),  https://www.amnesty.org/en/documents/AMR29/003/2014/en/.

[54] See e.g., J. Rovner, “Women Who Tried to Commit Suicide While Pregnant Gets Bail,” NPR (18 May 2022),  https://www.npr.org/sections/health-shots/2012/05/18/153026015/bail-granted-for-indiana-woman-charged-in-attempted-feticide (discussing a woman who, under pre-Dobbs laws, was arrested for murder after she attempted suicide while pregnant and her baby died after being born). See also Pregnancy Justice, “When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond” (17 Aug. 2022),            https://pregjustdev.wpengine.com/wp-content/uploads/2022/08/Fetal-Personhood-Issue-8.17.22.pdf. See also “Who Do Fetal Homicide Laws Protect? An Analysis for a Post-Roe America,” Pregnancy Justice (9 Jan. 2023), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/08/Feticide-Brief-w-Appendix.pdf.

[55] Bei Bei Shuai v. State of Indiana, No. 49A02–1106–CR–486, Court of Appeals of Indiana (2012).

[56] See R. Baldwin III, “Losing a pregnancy could land you in jail in post-Roe America,” NPR (3 July 2022), https://www.npr.org/2022/07/03/1109015302/abortion-prosecuting-pregnancy-loss (stating that the number of cases where pregnancy or pregnancy loss was used in a criminal investigation or prosecution nearly quadrupled from 2006-2020).

[57] See K. L. Gilbert et al., “Dobbs, another frontline for health equity,” Brookings Institution (30 June 2022),  https://www.brookings.edu/blog/how-we-rise/2022/06/30/Dobbs-another-frontline-for-health-equity/ (“Reducing access to abortions does not reduce the number of abortions, rather, it has the effect of reducing access to reproductive health care.”). See also J. Christensen & T. Sneed, “At least 43 abortion clinics shut in month after Supreme Court overturned Roe, research says, with more likely to close,” CNN (28 July 2022),  https://www.cnn.com/2022/07/28/health/abortion-clinics-shut-guttmacher/index.html; C. Vestal, “New Research Shows State Restrictions Reduce Contraception Use,” Pew (22 Sept. 2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/09/22/new-research-shows-state-restrictions-reduce-contraception-use; M. Ollove, “Critics Fear Abortion Bans Could Jeopardize Health of Pregnant Women,” Pew (22 June 2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/22/critics-fear-abortion-bans-could-jeopardize-health-of-pregnant-women.

[58]See M. Zahn, “Abortion clinics in embattled states face another challenge: Money,” ABC News (15 Aug. 2022),                https://abcnews.go.com/Business/abortion-clinics-embattled-states-face-challenge-money/story?id=87945089 (“Many abortion clinics now must choose between two costly options: stay open but stop providing abortions, or move to an abortion-friendly state, clinic officials and reproductive health organizations told ABC News.”).

[60] See O. Goldhill, “After Dobbs, U.S. medical students head abroad for abortion training no longer provided by their schools,” STAT (22 Oct. 2022),         https://www.statnews.com/2022/10/18/medical-students-heading-abroad-for-abortion-training/ (detailing how medical schools in states with abortion bans are pairing up with programs in other states that allow abortions in an attempt to ensure that future doctors are adequately prepared. Many students interested in reproductive healthcare are considering moving to states where abortions are legal.).

[61] K. Vinekar et al., Projected Implications of Overturning Roe v Wade on Abortion Training in U.S. Obstetrics and Gynecology Residency Programs, 140(2) Obstetrics & Gynecology 146 (2022), p. 147.

[62] J. Hoffman, “OB-GYN Residency Programs Face Tough Choice on Abortion Training,” New York Times (27 Oct 2022) https://www.nytimes.com/2022/10/27/health/abortion-training-residency-programs.html. See also  Interview by Physicians for Human Rights with Allison Lenselink (24 Nov. 2022).

[63] “Health coverage if you’re pregnant, plan to get pregnant, or recently gave birth,” HealthCare.Gov,   https://www.healthcare.gov/what-if-im-pregnant-or-plan-to-get-pregnant/ (last accessed: 10 Jan. 2023).

[64] M. Clark & A. Osorio, Medicaid Pregnancy Coverage Fills a Critical Health Insurance Gap During Pandemic, Data Shows, Georgetown University Health Policy Institute (31 Mar. 2022),  https://ccf.georgetown.edu/2022/03/31/medicaid-pregnancy-coverage-fills-a-critical-health-insurance-gap-during-pandemic-data-shows/.

[65] March of Dimes, “Health insurance during pregnancy,” https://www.marchofdimes.org/find-support/topics/planning-baby/health-insurance-during-pregnancy (last accessed: 10 Jan. 2023).

[66] M. Boone & B. J. McMichael, State-Created Fetal Harm, 109 The Georgetown L. Journal 475 (2021), pp. 496-98.

[69] F. Sellers & F. Nirappil, “Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care,” The Washington Post (16 July 2022), https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care/.

[70] L. Paltrow & J. Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, Journal of Health Politics, Policy and Law, https://read.dukeupress.edu/jhppl/article/38/2/299/13533/Arrests-of-and-Forced-Interventions-on-Pregnant.

[71] “West Virginia’s only abortion clinic stops performing abortions,” The Associated Press (24 June 2022), https://www.wsaz.com/2022/06/24/west-virginias-only-abortion-clinic-stops-performing-abortions/.

[72] N. Lakhani, “Abortion is still legal in Arizona. But confusion and fear abound,” The Guardian (15 Aug. 2022), https://www.theguardian.com/us-news/2022/aug/15/arizona-abortion-laws-ban-access.

[74] “Hospitals Fear Abortion Bans Will Worsen Staff Shortages,” Bloomberg Law (updated 9 Aug. 2022), https://news.bloomberglaw.com/health-law-and-business/hospitals-fear-abortion-bans-will-worsen-staff-shortages (“fears of being arrested for prescribing medications that could be unsafe for pregnancy, or for advising chemotherapy that requires ending a pregnancy… ‘The irony is that in states that pass these anti-abortion laws, there will be fewer OB GYN doctors willing to practice there. But there will be more need for them because there will be more pregnancies going to term,’ said Suzanna Sherry, a constitutional law expert at Vanderbilt University Law School.”).

[75] K. Schorsch, “Staffing shortages in Illinois for abortion care,” NPR-WBEZ (12 May 2022), npr.org/local/309/2022/05/12/1098469190/staffing-shortages-in-illinois-for-abortion-care (“Illinois providers are expecting an additional 20,000 to 30,000 patients a year as people travel from other states that could ban or heavily restrict the procedure. That would be a nearly two-thirds increase in abortions across Illinois.” An Illinois doctor cites the healthcare worker shortage as “perhaps the biggest barrier to a full-scale increase that would meet the needs of folks coming from other states.”).

[76] Interview by Foley Hoag LLP with Dr. Elissa Serapio (29 July 2022). See also E. Reyes, “These California Nurse-Midwives Want to Provide Abortions. They’re Struggling to Get Trained,” Los Angeles Times (18 July 2022),  latimes.com/california/story/2022-07-18/california-nurse-midwives-want-to-provide-abortions-struggling-to-get-trained.

[77] See S. Aksel et al., Unintended Consequences: Abortion Training in the Years after Roe v Wade, 103Am. J. Public Health 3 (2013) (explaining how provider shortages have created barriers to abortion access); American College of Obstetricians & Gynecologists, Committee Opinion: Abortion Training and Education (Nov. 2014),  https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2014/11/abortion-training-and-education.pdf (Healthcare providers face institutional barriers in getting trained to perform abortions); E. Declercq et al., “The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomes of States Proposing New Abortion Restrictions,” The Commonwealth Fund (14 Dec. 2022),  https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/us-maternal-health-divide-limited-services-worse-outcomes (maternity care providers may hesitate to work in scenarios where they may face legal challenges).   

[78] See generally D. Cohen & K. Connon, Living in the Crosshairs : the Untold Stories of Anti-Abortion Terrorism (2015) (in-depth accounts and data regarding the violence and harassment endured by women’s health professionals).

[80] National Abortion Federation, 2021 Violence & Disruption Statistics (19 May 2022), https://prochoice.org/wp-content/uploads/2021_NAF_VD_Stats_Final.pdf. See also U.S. Dept. of Justice, Recent Cases on Violence Against Reproductive Health Care Providers (updated 18 Oct. 2022), https://www.justice.gov/crt/recent-cases-violence-against-reproductive-health-care-providers.

[81] A January 2020 unclassified report from the FBI outlined an ongoing increase in anti-abortion threats, disruption and violence, stating, “The FBI assess the increase in abortion-related extremist violent threats and criminal activity, including violations of the Freedom of Access to Clinic Entrances (FACE) Act, against targets including reproductive healthcare facilities (RHCFs) likely is driven in part by the recent rise in state legislative activities related to abortion services and access.” (emphasis added); National Abortion Federation, 2020 Violence & Disruption Statistics (2021), p. 2, https://prochoice.org/our-work/provider-security/#dflip-df_13683/3/.

[82] See supra note 87. See also J. Winter, “The Link Between the Capitol Riot and Anti-Abortion Extremism,” The New Yorker (11 Mar. 2021), https://www.newyorker.com/news/daily-comment/the-link-between-the-capitol-riot-and-anti-abortion-extremism; C. Sherman, “Anti-Abortion Activists Were All Over the Capitol Riots,” Vice News (12 Jan. 2021), https://www.vice.com/en/article/4ad73w/anti-abortion-activists-were-all-over-the-capitol-riots.

[83] No patients or staff were present during the attack; a firefighter sustained life threatening injuries. T. Bella, “Arson Suspected at Illinois Planned Parenthood After State Expands Abortion Rights,” Washington Post (19 Jan. 2023), https://www.washingtonpost.com/nation/2023/01/19/abortion-planned-parenthood-arson-illinois/.

[84] See Tex. Health & Safety Code §170A.004, La. Stat. Ann. §14:87.7 (2022), Idaho Code §18-622 (2022), Ala. Code § 26-23H, ​​Ark. Code Ann. § 5-61-304, Ky. Rev. Stat. § 311.772, § 188.017 R.S.Mo., Okla. Stat. tit. 63, § 1-731.4, Miss. Code Ann. § 41-41-45, S.D. Codified Laws § 22-17-5.1, Tenn. Code Ann. § 39-15-201, Wis. Stat. Ann. § 940.04, W. Va. Code § 61-2-8 (currently under an injunction).

[85] The Texas abortion ban classifies any attempt to induce an abortion as a second-degree felony if unsuccessful (punishable by up to 20 years in prison) and as a first degree felony (up to life in prison) “if an unborn child dies as a result of the offense.” Tx. Code § 170A.004(b).

[86] Okla. Stat. tit. 63, § 1-731.4.

[87] For example, Texas’s pre-Roe abortion ban explicitly included accomplice liability (“Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice”) Tex. Pen. Code art. 1192 (1925), https://www.sll.texas.gov/assets/pdf/historical-statutes/1925/1925-3-penal-code-of-the-state-of-texas.pdf#page=279. Other states, in defining abortion as a felony, have imported generally applicable aiding and abetting provisions. See, e.g., Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org (31 Aug. 2022) (citing Oklahoma definitions of principal and accessory criminal liability, and opining, “Oklahoma law prohibits aiding and abetting the commission of an unlawful abortion, which may include advising a pregnant woman to obtain an unlawful abortion. See 21 O.S. §§ 171-172, 861…”). Meanwhile, Alabama, Arizona, Arkansas, Florida, and Ohio have considered such a provision. See H.B. 4327, 2022 Leg., Reg. Sess. (Okla. 2022); H.B. 23, 2022 Leg., Reg. Sess. (Ala. 2022); H.B. 2483, 55th Leg., 2nd Reg. Sess. (Ariz. 2022); S.B. 13, 93rd Gen. Assemb., 2nd Extraordinary Sess. (Ark. 2021); H.B. 167, 124th Leg., Reg. Sess. (Fla. 2022); H.B. 480, 134th Gen. Assemb., Reg. Sess. (Ohio 2021). See also J. Tolentino, “We’re Not Going Back to the Time Before Roe. We’re Going Somewhere Worse,” The New Yorker (24 June 2022), https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse/amp.

[88] R. Klitzman, “Opinion: Roe’s reversal doesn’t just hurt women – it harms us all,” CNN (25 June 2022), https://www.cnn.com/2022/06/25/opinions/medical-ethics-post-roe-world-klitzman/index.html. See also J. Tolentino, “We’re Not Going Back to the Time Before Roe. We’re Going Somewhere Worse,” The New Yorker (24 June 2022), https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse/amp. Virtually all of the “trigger laws” punish those conducting and/or aiding an abortion. See also A. Zablocki & M. Sutrina, “The Impact of State Laws Criminalizing Abortion,” Lexis Nexis (27 Sept. 2022), https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/the-impact-of-state-laws-criminalizing-abortion (Noting potential aiding and abetting liability for employers who provide support or time off for employees to obtain abortions; for medical personnel who advise or assist; for individuals who facilitate; or for health plans that cover the procedure); K.E. Queram, “Lyft and Uber Establish Legal Funds to Protect Drivers from Texas Abortion Law,” Route Fifty (7 Sept. 2021), https://www.route-fifty.com/management/2021/09/ride-share-abortion-legal-fund-texas/185154/. T. O’Donnell, “Under Texas ban, private citizens could sue a cab driver who takes a woman to an abortion,” (1 Sept. 2021), https://theweek.com/science/health/1004413/under-texas-ban-private-citizens-could-sue-a-cab-driver-who-takes-a-woman-to; R. Alta Charo, Vigilante Injustice — Deputizing and Weaponizing the Public to Stop Abortions, The New England Journal of Medicine (14 Oct. 2021),  https://www.nejm.org/doi/full/10.1056/NEJMp2114886.

[89] A. Zablocki & M. Sutrina, “The Impact of State Laws Criminalizing Abortion,” Lexis Nexis (27 Sept. 2022),  https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/the-impact-of-state-laws-criminalizing-abortion; Madiba Denney & Jackie Fielding, “Miscarriage of Justice: The Danger of Laws Criminalizing Pregnancy Outcomes” The Brennan Center (9 Nov. 2021), https://www.brennancenter.org/our-work/analysis-opinion/miscarriage-justice-danger-laws-criminalizing-pregnancy-outcomes.

[90] Texas Heartbeat Act, Senate Bill 8 (SB 8) (20 Mar. 2021) (An Act relating to abortion, including abortions after detection of an “unborn child’s heartbeat”; authorizing a private civil right of action),  https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf. See also Okla. Stat. tit. 63, §1-745.33-.34, .38 (2022); Idaho Code §§ 18-8804, 18-8807

[91] Tex. Health & Safety Code §§ 170A.001-7 (2022). See id., § I (B)(1).

[92]J. Gerson, “‘No one wants to get sued’: Some abortion providers have stopped working in Texas” The 19th (15 Sept. 2021), https://19thnews.org/2021/09/abortion-providers-texas-stopped-working-under-threat-sued/ (“‘Even if abortion providers win in every single case brought against them [under SB 8], that burden of having to have a lawyer to defend yourself, traveling all over the state to do so — that alone threatens to shut down abortion providers,’ said Marc Hearron, senior counsel at the Center for Reproductive Rights”). In December 2022, a Texas court dismissed a suit from an unaffected, out of state plaintiff against a doctor who had performed an abortion in defiance of the law. The court held that the plaintiff  lacked standing to bring the case, but left the door open for plaintiffs with ties to a case to sue providers. See D. Solomon, “Texas’s Abortion ‘Bounty’ Law Just Lost Its First Test. Here’s What That Means,” Texas Monthly (9 Dec. 2022), https://www.texasmonthly.com/news-politics/texas-abortion-bounty-law-just-lost-first-test/.

[93] Interview by Foley Hoag LLP with Dr. Elissa Serapio (25 July 2022). Others involved in abortion care, including lawyers, have the same concerns. I. Mitchell, “Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs,” The Texan (11 July 2022), available at https://thetexan.news/texas-freedom-caucus-warns-law-firm-of-criminal-liability-for-covering-employees-abortion-costs/ (members of the Texas Freedom Caucus promise to file legislation in the upcoming session to “require the State Bar of Texas to disbar any lawyer that has violated Texas abortion laws.”). See also E. Bowman, “As states ban abortion, the Texas bounty law offers a way to survive legal challenges,” NPR (11 July 2022), https://www.npr.org/2022/07/11/1107741175/texas-abortion-bounty-law. See also M. Kornfield, “A website for ‘whistleblowers’ to expose Texas abortion providers was taken down-again” (6 Sept. 2021), https://www.washingtonpost.com/nation/2021/09/06/texas-abortion-ban-website/.

[94] R. Cohen, “The coming legal battles of post-Roe America,” Vox (27 June 2022),  https://www.vox.com/2022/6/27/23183835/roe-wade-abortion-pregnant-criminalize.

[95] C. Kitchener & D. Barrett, “Antiabortion Lawmakers Want to Block Patients from Crossing State Lines,” Washington Post (30 June 2022), https://www.washingtonpost.com/politics/2022/06/29/abortion-state-lines/. See also A. Ollstein & M. Messerly, “Missouri wants to stop out-of-state abortions. Other states could follow,”  https://www.politico.com/news/2022/03/19/travel-abortion-law-missouri-00018539 for specific of the Missouri proposal.

[96] M.O. SB603, 101st Gen. Assemb., Reg. Sess. (2021).

[97] See R. Cohen, “The coming legal battles of post-Roe America,” Vox (27 June 2022),  https://www.vox.com/2022/6/27/23183835/roe-wade-abortion-pregnant-criminalize. See also S. Ballentine & J. Hanna, “Missouri considers law to make illegal to ‘aid or abet’ out-of-state abortion,” PBS (16 Mar. 2022),  https://www.pbs.org/newshour/politics/missouri-considers-law-to-make-illegal-to-aid-or-abet-out-of-state.

[98] T. Gross, “The U.S. faces ‘unprecedented uncertainty’ regarding abortion law, legal scholar says,” NPR (updated 18 Jan. 2023), https://www.npr.org/sections/health-shots/2023/01/17/1149509246/the-u-s-faces-unprecedented-uncertainty-regarding-abortion-law-legal-scholar-sa; T. Benson, “Interstate Travel Post-Roe Isn’t as Secure as You May Think,” Wired (25 July 2022), https://www.wired.com/story/insterstate-travel-abortion-post-roe/.

[99] Pregnancy-related prosecutions not only existed but were increasing before Dobbs. See Pregnancy Justice, “Arrests and Prosecutions of Pregnant Women, 1973-2020” (18 Sept. 2021),  https://www.nationaladvocatesforpregnantwomen.org/wp-content/uploads/2021/09/FINAL_1600cases-Factsheet.docx.pdf. See also M. Goldberg, “When a Miscarriage Is Manslaughter,” The New York Times (18 Oct. 2021), https://www.nytimes.com/2021/10/18/opinion/poolaw-miscarriage.html.

[100] See A. Yurkanin, “Women can be prosecuted for taking abortion pills, says Alabama attorney general,” AL.com (10 Jan. 2023).

[101] Idaho Code §18-606.

[102] Pregnancy Justice, “When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond” (17 Aug. 2022),     https://pregjustdev.wpengine.com/wp-content/uploads/2022/08/Fetal-Personhood-Issue-8.17.22.pdf. See also Pregnancy Justice, “Who Do Fetal Homicide Laws Protect? An Analysis for a Post-Roe America,” https://www.nationaladvocatesforpregnantwomen.org/wp-content/uploads/2022/08/Feticide-Brief-w-Appendix.pdf.

[103] International human rights law (IHRL) makes clear that its protections start at birth and that fetal personhood has no basis in IHRL. See Working Group on discrimination against women and girls in law and practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017),  https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf (“It was well settled in the 1948 [Universal Declaration of Human Rights] and upheld in the ICCPR that the human rights accorded under IHRL are accorded to those who have been born. ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’”). The Working Group cites inter alia the travaux préparatoires of Article 6 of the  ICCPR, in which proposed amendments suggesting that the right to life applied before birth were specifically rejected by states. UN GAOR, 12th Session, Agenda Item 33, at 119 (e), (q), UN Doc. A/3764, 1957.

[104] M. Carlisle, “Fetal Personhood Laws Are a New Frontier in the Battle Over Reproductive Rights,” Time (28 June 2022), https://time.com/6191886/fetal-personhood-laws-roe-abortion/. Fetal personhood provisions could also lead to non-abortion-related conduct being criminalized. https://www.usnews.com/news/national-news/articles/2022-05-06/the-push-to-make-fetuses-people-and-abortion-murder/.

[105] O. Gonzalez, “Louisiana abortion bill allowing homicide charges against patients stopped for now,” Axios (13 May 2022), https://www.axios.com/2022/05/13/louisiana-abortion-bill-homicide-patient-roe.

[106] A Tennessee trigger law that will go into effect in August will make performing an abortion a felony that comes with a sentence of up to 15 years imprisonment. A.Sainz & K. Kruesi, “Memphis council resolution addresses abortion prosecutions,” The Associated Press (12 July 2022), https://apnews.com/article/abortion-2022-midterm-elections-us-supreme-court-health-nashville-92c4834b3b0fd10e487c2bc75020c03d. A 2021 study from the National Association of Criminal Defense Lawyers and Pregnancy Justice determined that there are thousands of federal and state crimes already on the books that prosecutors can and have used to charge pregnant persons in a post-Roe world. See National Association of Criminal Defense Lawyers and National Foundation for Criminal Justice, “Abortion in America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs” (Aug. 2021),  https://www.nacdl.org/getattachment/ce0899a0-3588-42d0-b351-23b9790f3bb8/abortion-in-america-how-legislative-overreach-is-turning-reproductive-rights-into-criminal-wrongs.pdf.

[107] “Alabama Mother Prosecuted for Taking Prescription During Pregnancy,” Equal Justice Initiative (12 July 2021),  https://eji.org/news/alabama-mother-prosecuted-for-taking-prescription-during-pregnancy/.

[108] L. Paltrow & L. Sangoi, “The dangerous state laws that are punishing pregnant people,” Think Progress (28 Sept. 2016), https://archive.thinkprogress.org/criminalization-pregnancy-us-43e4741bb514/; Amnesty International, “USA: Criminalizing pregnancy: policing pregnant women who use drugs in the USA” (23 May 2017) https://www.amnesty.org/en/documents/amr51/6203/2017/en/.

[109] “Alabama Mother Prosecuted for Taking Prescription During Pregnancy,” Equal Justice Initiative (12 July 2021), https://eji.org/news/alabama-mother-prosecuted-for-taking-prescription-during-pregnancy/; P. Salhotra, “Does a fetus count in the carpool lane? Texas’ abortion law creates new questions about legal personhood,” The Texas Tribune (13 Sept. 2022), https://www.texastribune.org/2022/09/13/texas-personhood-laws-abortion-law/; M. Carrizosa, “Beyond Abortion: The Fight Over Fetal Personhood Is Here (Video),” Bloomberg Law (12 Jan. 2023), https://news.bloomberglaw.com/us-law-week/beyond-abortion-the-fight-over-fetal-personhood-is-here-video.

[110] See N. Martin, “Take a Valium, Lose Your Kid, Go to Jail,” ProPublica (23 Sept. 2015), https://www.propublica.org/article/when-the-womb-is-a-crime-scene.

[111] See Pregnancy Justice, “Confronting Pregnancy Criminalization: A Practical Guide for Healthcare Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers,” p. 6 (July 2022),  https://www.pregnancyjusticeus.org/wp-content/uploads/2022/06/1.Confronting-PregnancyCriminalization_6.22.23-1.pdf; Pregnancy Justice, “Arrests and Other Deprivations of Liberty of Pregnant Women, 1973-2020,”  https://www.pregnancyjusticeus.org/wp-content/uploads/2021/09/FINAL_1600cases-Factsheet.docx.pdf.

[112] See Pregnancy Justice, “Wisconsin’s ‘Unborn Children Protection Act’ (Act 292)” (16 May 2022),  https://www.nationaladvocatesforpregnantwomen.org/fact-sheet-wisconsins-unborn-child-protection-act-act.

[113] See Idaho 18-622(5) “Nothing in this section shall be construed to subject a pregnant woman on whom any abortion is performed or attempted to any criminal conviction and penalty.”; S. Harris, “Local woman facing 10 years in prison for allegedly using meth the day she gave birth” (6 June 2021), https://www.idahostatejournal.com/news/local/local-woman-facing-10-years-in-prison-for-allegedly-using-meth-the-day-she-gave/article_e03d4800-cf40-5263-a7d3-085d2d7df2b4.html/; L. Miranda et al., “How States Handle Drug Use During Pregnancy” (30 Sept. 2015),  https://projects.propublica.org/graphics/maternity-drug-policies-by-state.

[114] Report of the Working Group on Arbitrary Detention on its visit to the United States of America, ¶ 74 (U.N. Doc. A/HRC/36/37/Add.2) (17 July 2017).

[115] See NWHN Staff, “Consumer Health Info: Medication Abortion and Miscarriage” (updated 15 Aug. 2019), https://nwhn.org/abortion-pills-vs-miscarriage-demystifying-experience/ (“From a medical perspective, there is no physically significant difference between a medication abortion and a spontaneously occurring miscarriage. For example, the medicines used in medication abortion are used to help safely manage an incomplete miscarriage.”).

[116] See M. Dennie & J. Fielding, “Miscarriage of Justice: The Danger of Laws Criminalizing Pregnancy Outcomes,” Brennan Center for Justice (9 Nov. 2021), https://www.brennancenter.org/our-work/analysis-opinion/miscarriage-justice-danger-laws-criminalizing-pregnancy-outcomes. P. Thompson & A. Turcios Cruz, “How an Oklahoma women’s miscarriage put a spotlight on racial disparities in prosecutions,” NBC News (5 Nov. 2021).

[117] “Criminal Justice Fact Sheet,” NAACP, https://naacp.org/resources/criminal-justice-fact-sheet; https://www.prisonpolicy.org/blog/2021/10/08/indigenouspeoplesday/ (“In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.”).

[118] L. Paltrow & J. Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, Journal of Health Politics, Policy and Law https://read.dukeupress.edu/jhppl/article/38/2/299/13533/Arrests-of-and-Forced-Interventions-on-Pregnant (noting that the socioeconomic status of economically disadvantaged was indicated by the fact that 71 percent qualified for indigent defense).

[119] See National Association of Criminal Defense Lawyers, Race and the War on Drugs (29 Nov. 2022),  https://www.nacdl.org/Content/Race-and-the-War-on-Drugs.

[120] Report by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Racism and the right to health (U.N. Doc. A/77/197) (20 July 2022).

[121] See American College of Obstetricians and Gynecologists, Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period-Statement of Policy (Dec. 2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.

[122] A recent study by If/When/How found “at least 61 instances where people were investigated or prosecuted for allegedly self-managing an abortion or helping others self-manage. Among the cases involving adults, 26% were reported by acquaintances (including family, friends, and neighbors) and 45% were reported by care professionals (including doctors, nurses, and social workers) after seeking care…Whether criminalization has occurred out of malice or simply due to ignorance of reporting requirements, clinicians, social workers, and other clinical support providers have caused substantial harm to patients by calling law enforcement after the loss of pregnancy because they suspect the miscarriage was intentionally induced.” J. Perritt, “Don’t Report Your Abortion Patients to Law Enforcement—Self-managed abortion does not legally need to be reported,” Medpage Today (5 Nov. 2022), https://www.medpagetoday.com/opinion/second-opinions/101581; (citing  L. Huss et al., Self-Care, Criminalized: August 2022 Preliminary Findings, If How When: Lawyering for Reproductive Justice 2-3 (2022)). See also E. Bazelon, “Purvi Patel Could Be Just the Beginning,” The New York Times (1 Apr. 2015), https://www.nytimes.com/2015/04/01/magazine/purvi-patel-could-be-just-the-beginning.html.

[123] S. Artiga et al., “Racial Disparities in Maternal and Infant Health: An Overview,” Kaiser Family Foundation (10 Nov. 2020), https://www.kff.org/report-section/racial-disparities-in-maternal-and-infant-health-an-overview-issue-brief/.

[124] E. Yuko, “Women of Color Will Face More Criminalized Pregnancies in Post-‘Roe’ America,” Rolling Stone (7 July 2022), https://www.rollingstone.com/culture/culture-features/roe-wade-abortion-criminalized-pregnancy-bipoc-1377430/.

[125] Working Group on discrimination against women and girls in law and practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017),  https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf.

[126] See, e.g., C. Zakrzewski et al., “Texts, web searches about abortion have been used to prosecute women,” The Washington Post (3 July 2022), https://www.washingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/. See also R. Williams, “How might law enforcement use digital tracking to enforce Georgia’s strict anti-abortion law?” GPB (30 Aug. 2022), https://www.gpb.org/news/2022/08/30/how-might-law-enforcement-use-digital-tracking-enforce-georgias-strict-anti.

[127] See K. Cheung, “Abortion in the Surveillance State,” Jezebel (22 Nov. 2021), https://jezebel.com/abortion-in-the-surveillance-state-1848076906. See also J. Schuppe, “Police sweep Google searches to find suspects. The tactic is facing its first legal challenge,” NBC News (30 June 2022), https://www.nbcnews.com/news/us-news/police-google-reverse-keyword-searches-rcna35749.

[128] P. Hurtado et al., “In a Post-Roe World, More Miscarriage and Stillbirth Prosecutions Await Women,” Bloomberg (5 July 2022), https://www.bloomberg.com/news/articles/2022-07-05/miscarriage-stillbirth-prosecutions-await-women-post-roe. See also L. Rankin, “How an online search for abortion pills landed this woman in jail,” Fast Company (26 Feb. 2020), https://www.fastcompany.com/90468030/how-an-online-search-for-abortion-pills-landed-this-woman-in-jail.

[129] Federal Trade Commission, “Data Brokers: A Call for Transparency and Accountability,” p. i (May 2014),  https://www.ftc.gov/system/files/documents/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014/140527databrokerreport.pdf. 

[130] Federal courts have not ruled directly on whether the particularized probable cause standard applicable to warrant requests is required for police to conduct keyword search queries or “geofenced” (i.e. location-bound) searches of data held by third parties, including Google. At the moment, law enforcement is relying on vague and less-protective statutory standards, such as the Stored Communication Act’s “reasonable grounds [to believe that records are] relevant and material to an ongoing investigation” standard. Congressional Research Service, “Abortion, Data Privacy, and Law Enforcement Access: A Legal Overview” (updated 8 July 2022),  https://crsreports.congress.gov/product/pdf/LSB/LSB10786.  

[131] J. Cox, “Data Broker Is Selling Location Data of People Who Visit Abortion Clinics,” Vice (3 May 2022), https://www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-safegraph-planned-parenthood (reporting on the sale of data “showing where groups of people visiting [clinics the provide abortions] came from, how long they stayed there, and where they then went afterwards.”). See also B. Cyphers, “Inside Fog Data Science, the Secretive Company Selling Mass Surveillance to Local Police,” EFF (31 Aug. 2022),  https://www.eff.org/deeplinks/2022/08/inside-fog-data-science-secretive-company-selling-mass-surveillance-local-police (describing how private data brokers sell searchable access to “‘billions’ of data points about ‘over 250 million’ devices” to local law enforcement agencies, generally without any court oversight).

[132] B. Cyphers, “How Law Enforcement Around the Country Buys Cell Phone Location Data Wholesale,” EFF (31 Aug. 2022), https://www.eff.org/deeplinks/2022/08/how-law-enforcement-around-country-buys-cell-phone-location-data-wholesale Some data broker services are designed and marketed specifically for law enforcement agencies, who purchase subscriptions to the services – rather than seeking a warrant – in order to access advanced search features. The Electronic Frontier Foundation documented a lack of agency-level policies governing the use of these services, and found that most agencies did not seek either warrants or subpoenas to access the data. See also F. Patel & A. Shahzad, “With Roe v. Wade at Risk, Digital Surveillance Threatens Reproductive Freedom,” Just Security (17 May 2022), https://www.justsecurity.org/81547/with-roe-v-wade-at-risk-digital-surveillance-threatens-reproductive-freedom/. 

[133] S. Quenby et al., “Miscarriage matters: the epidemiological, physical, psychological, and economic costs of early pregnancy loss,” The Lancet (Vol. 397, 2021), p. 1658; D. Walker, “With Roe overturned, Indigenous communities say it was always impossible for them to access abortion services,” Insider (24 June 2002), https://www.insider.com/roe-overturned-harder-for-indigenous-communities-to-access-abortion-2022-5.

[134] National Women’s Health Center, “Consumer Health Info: Medication Abortion and Miscarriage” (updated 15 Aug. 2019), https://nwhn.org/abortion-pills-vs-miscarriage-demystifying-experience/ (“From a medical perspective, there is no physically significant difference between a medication abortion and a spontaneously occurring miscarriage. For example, the medicines used in medication abortion are used to help safely manage an incomplete miscarriage.”).

[135] C. Conti-Cook, Surveilling the Digital Abortion Diary, 50 (1) University of Baltimore Law Review 1 (2020), pp. 29-38.

[136] See M. Gilman, The Class Differential in Privacy Law, 77 Brook. L. Rev. 1389, 1392 (2012),   https://brooklynworks.brooklaw.edu/blr/vol77/iss4/2.

[137] See E. Joh, Dobbs Online: Digital Rights as Abortion Rights (5 Sept. 2022) (feminist cyberlaw, A. Levendowski & M. Jones (eds.), forthcoming 2023), https://ssrn.com/abstract=4210754) (noting that low-income women are less able to afford more privacy-protective phones, apps, or other services).

[138] See K. Cheung, “Abortion in the Surveillance State,” Jezebel (22 Nov. 2021), https://jezebel.com/abortion-in-the-surveillance-state-1848076906; S. Coutts, “Anti-Choice Groups Use Smartphone Surveillance to Target ‘Abortion-Minded Women’ During Clinic Visits,” Rewire News Group (25 May 2016),  https://rewirenewsgroup.com/2016/05/25/anti-choice-groups-deploy-smartphone-surveillance-target-abortion-minded-women-clinic-visits/.

[139] A. Abrams & V. Bergengruen, “Anti-Abortion Pregnancy Centers Are Collecting Troves of Data That Could Be Weaponized Against Women,” Time (22 June 2022), https://time.com/6189528/anti-abortion-pregnancy-centers-collect-data-investigation/.

[140] J. Cox, “Data Broker Is Selling Location Data of People Who Visit Abortion Clinics,” Vice (3 May 2022),  https://www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-safegraph-planned-parenthood; E. Joh, Dobbs Online: Digital Rights as Abortion Rights (5 Sept. 2022) (A. Levendowski & M. Jones (eds.), feminist cyberlaw, forthcoming 2023), https://ssrn.com/abstract=4210754). See also A. Vesoulis, “How a Digital Abortion Footprint Could Lead to Criminal Charges—And What Congress Can Do About It,” Time (10 May 2022), available at https://time.com/6175194/digital-data-abortion-congress/; E. Bowman, “As states ban abortion, the Texas bounty law offers a way to survive legal challenges,” NPR (11 July 2022), https://www.npr.org/2022/07/11/1107741175/texas-abortion-bounty law#:~:text=The%20law%20makes%20no%20exceptions,%2410%2C000%20in%20damages%20from%20defendants.

[141] See J. Cox, “Data Broker Is Selling Location Data of People Who Visit Abortion Clinics,” Vice (3 May 2022),  https://www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-safegraph-planned-parenthood. Following the initial story, this particular data broker announced it would cease selling data specifically tracking those who visited abortion providers, and subsequently eliminated retail access to its data altogether; however, nothing prevents other brokers from offering identical products. J. Cox, “SafeGraph to Close Digital Shop That Sold Abortion Clinic Location Data,” Vice (30 Sept. 2022), https://www.vice.com/en/article/g5vw3b/safegraph-to-close-shop-abortion-clinic-location-data.

[142] N. Poli & V. Bergengruen, “Lawmakers Scramble to Reform Digital Privacy After Roe Reversal,” Time (1 July 2022), https://time.com/6193224/abortion-privacy-data-reform/.

[143] Complaint, Generation to Generation Inc. v. State of Florida, No. 2022-CA-000980 (Leon Cty. Fla., Circ. Ct., 10 June 2022). See also E. Fawcett, “Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms,” The New York Times (16 June 2022), https://www.nytimes.com/2022/06/16/us/florida-abortion-law-judaism.html.

[144] The providers in Florida who have resorted to the courts to assert their right to freedom of religion or belief are part of a long tradition of healthcare workers providing reproductive healthcare, at least in part, due to their faith. See A Religious Right to Abortion: Legal History and Analysis, Columbia Law School (Aug. 2022), https://lawrightsreligion.law.columbia.edu/sites/default/files/content/LRRP%20Religious%20Liberty%20%26%20Abortion%20Rights%20memo.pdf.

[145] M. Boorstein, “Clergy sue to halt Florida abortion law, citing religious freedom,” The Washington Post (1 Sept. 2022), https://www.washingtonpost.com/religion/2022/09/01/florida-pastor-rabbi-abortion-lawsuit/.

[147] UN General Assembly, International Covenant on Civil and Political Rights (16 Dec. 1966), United Nations, Treaty Series (Vol. 999) (“ICCPR”), https://www.refworld.org/docid/3ae6b3aa0.html [accessed 28 January 2023], Art.18 (3).

[148] See A. Branigin & S. Chery, “Women of color will be most impacted by the end of Roe, experts say,” The Washington Post (24 June 2022), https://www.washingtonpost.com/nation/2022/06/24/women-of-color-end-of-roe/. See also L. Powell, “Human Rights Campaign Fact Sheet: Lesbian, Bisexual, Queer Women Who Have Been Pregnant Are More Likely to Need Abortion Services; Demonstrates Impact Roe Reversal Would Have on LGBTQ+ People,” Human Rights Campaign (2 June 2022), available at https://www.hrc.org/press-releases/human-rights-campaign-fact-sheet-lesbian-bisexual-queer-women-who-have-been-pregnant-are-more-likely-to-need-abortion-services-demonstrates-impact-roe-reversal-would-have-on-lgbtq-people. See also American Association of People with Disabilities, “AAPD Statement on Leaked Supreme Court Draft Decision and Threat to Roe v. Wade” (10 May 2022),  https://www.aapd.com/press-releases/aapd-statement-scotus-threat-to-roe/.

[149] See, e.g., E.E. Petersen et al., “Vital Signs: Pregnancy-Related Deaths, United States, 2011–2015, and Strategies for Prevention, 13 States, 2013–2017,” MMWR Morb Mortal Wkly Rep (2019), 68:423–429 (between 2011 and 2015 Indigenous women had the second highest rate of pregnancy-related deaths); M. Long et al., “Women’s Health Care Utilization and Costs: Findings from the 2020 KFF Women’s Health Survey” (21 Apr. 2021),  https://www.kff.org/womens-health-policy/issue-brief/womens-health-care-utilization-and-costs-findings-from-the-2020-kff-womens-health-survey (low-income women, Black women, and Hispanic women); G. Borchelt, “The Impact Poverty Has on Women’s Health,”   https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/poverty-on-womens-health (low-income women); M. Buckles “Improving Health Outcomes for Black Women and Girls With Disabilities” (15 Feb. 2022), https://www.americanprogress.org/article/improving-health-outcomes-for-black-women-and-girls-with-disabilities (Black women and women with disabilities); L. Johnson, “The Disparate Impact of Texas’ Abortion Ban on Low-Income and Rural Women,” Georgetown Law Journal on Poverty Law and Policy (24 Feb. 2022), https://www.law.georgetown.edu/poverty-journal/blog/the-disparate-impact-of-texas-abortion-ban-on-low-income-and-rural-women (rural and low-income women).

[150] See K.L. Gilbert et al., “Dobbs, another frontline for health equity,” Brookings Institution (30 June 2022),  https://www.brookings.edu/blog/how-we-rise/2022/06/30/Dobbs-another-frontline-for-health-equity/. See also D. Walker, “With Roe overturned, Indigenous communities say it was always impossible for them to access abortion services” (24 June 2022), https://www.insider.com/roe-overturned-harder-for-indigenous-communities-to-access-abortion-2022-5; L. Kcomt et al., “Healthcare avoidance due to anticipated discrimination among transgender people: A call to create trans-affirmative environments” (28 May 2020),  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7276492/pdf/main.pdf; B. Karami Matin et al., “Barriers in access to healthcare for women with disabilities: a systematic review in qualitative studies” (30 Jan. 2021),  https://bmcwomenshealth.biomedcentral.com/track/pdf/10.1186/s12905-021-01189-5.pdf; U. Ranji et al., “Beyond the Numbers: Access to Reproductive Health Care for Low-Income Women in Five Communities” (14 Nov. 2019),  https://www.kff.org/report-section/beyond-the-numbers-access-to-reproductive-health-care-for-low-income-women-in-five-communities-executive-summary.; L. Fuentes, “Inequity in US Abortion Rights and Access: The End of Roe is Deepening Existing Divides,” Guttmacher Institute (Jan. 2023), https://www.guttmacher.org/2023/01/inequity-us-abortion-rights-and-access-end-roe-deepening-existing-divides (“Drivers of inequity such as income and health insurance disparities and health provider bias…are not simply the result of individual acts of discrimination but rather the result of how institutions and public infrastructures function.”).

[151] Brief for Autistic Self Advocacy Network and the Disability Rights Education and Defense Fund as Amicus Curiae (Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228) (20 Sept. 2021), p. 7, https://www.supremecourt.gov/DocketPDF/19/19-1392/192964/20210920135335415_19-1392%20Amicus%20Brief%20of%20The%20Autistic%20Self%20Advocacy%20Network%20et%20al..pdf (“around 60,000 Americans were forcibly sterilized in state-sanctioned programs to prevent those adjudged to have psychiatric disabilities from reproducing”). See also P. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. Rev. 30, 31 (1985); A. Stern, “Forced sterilization policies in the US targeted minorities and those with disabilities – and lasted into the 21st century,” IHPI News (23 Sept. 2020),  https://ihpi.umich.edu/news/forced-sterilization-policies-us-targeted-minorities-and-those-disabilities-and-lasted-21st (“Anyone who did not fit [the] mold of racial perfection, which included most immigrants, Blacks, Indigenous people, poor whites and people with disabilities, became targets of eugenics programs.”); National Women’s Law Center, Forced Sterilization of Disabled People in the United States (24 Jan. 2022), https://nwlc.org/wp-content/uploads/2022/01/%C6%92.NWLC_SterilizationReport_2021.pdf; (Appendix) https://nwlc.org/wp-content/uploads/2022/01/%C6%92.NWLC_SterilizationReport_2022_Appendix.pdf. 

[152] Brief for Autistic Self Advocacy Network and the Disability Rights Education and Defense Fund as Amicus Curiae (Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228) (20 Sept. 2021), p. 7, https://www.supremecourt.gov/DocketPDF/19/19-1392/192964/20210920135335415_19-1392%20Amicus%20Brief%20of%20The%20Autistic%20Self%20Advocacy%20Network%20et%20al..pdf.

[153] L. Bowen, “Dobbs Is a Disaster for Disability Justice,” Society for Cultural Anthropology (3 Oct. 2022), https://culanth.org/fieldsights/Dobbs-is-a-disaster-for-disability-justice. See also R. Hoban, “In debate over Down syndrome/abortion bill, disability groups struggle with how to respond,” North Carolina Health News (8 June 2021), https://www.northcarolinahealthnews.org/2021/06/08/disability-groups-struggle-to-respond-to-latest-abortion-bill/.

[154] M. Smith, “Native Americans: A Crisis in Health Equity,” American Bar Association Human Rights Magazine (Vol. 43, No. 3) (1 Aug. 2018),  https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity/. The United Nations’ Department for Economic and Social Affairs has also produced reports on indigenous peoples’ access to health services around the world, finding these groups face heightened challenges. See “State of the World’s Indigenous Peoples: Indigenous Peoples’ Access to Health Services,” United Nations Department of Economic and Social Affairs (March 2018),  https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/03/The-State-of-The-Worlds-Indigenous-Peoples-WEB.pdf. 

[155] E. Hofstaedter, “Abortion Was Already Inaccessible on Reservation Land. Dobbs Made Things Worse,” Mother Jones (12 Aug. 2022), https://www.motherjones.com/politics/2022/08/abortion-Dobbs-tribal-land/.

[156] See D. Williams et al., Understanding and Addressing Racial Disparities in Health Care, 21(4) Health Care Financing Review 75 (2000). See also Key Facts on Health and Health Care by Race and Ethnicity, Kaiser Family Foundation, (26 Jan. 2022), https://www.kff.org/racial-equity-and-health-policy/report/key-facts-on-health-and-health-care-by-race-and-ethnicity/; “Closing the Equity Gap in Health Care for Black Americans,” The Commonwealth Fund (15 July 2016), https://www.commonwealthfund.org/blog/2016/closing-equity-gap-health-care-black-americans. Black women may also be particularly impacted by abortion bans because they have historically been overrepresented among people seeking abortions. See “Reported Legal Abortions by Race of Women Who Obtained Abortion by the State of Occurrence,” Kaiser Family Foundation (2020), https://www.kff.org/racial-equity-and-health-policy/report/key-facts-on-health-and-health-care-by-race-and-ethnicity/

[157] See, e.g., A. Spencer, “Black Rural Residents Lack Healthcare Due to Racism and Poverty,” The Sacramento Observer (22 Aug. 2022), https://sacobserver.com/2022/08/black-rural-residents-lack-healthcare-due-to-racism-and-poverty/.

[158] See “Submission to the United Nations Committee on the Elimination of Racial Discrimination,” Amnesty International, The Global Justice Center, The Southern Rural Black Women’s Initiative for Economic and Social Justice, and Human Rights Watch (Aug. 2022),  https://www.hrw.org/sites/default/files/media_2022/07/SBRWI_HRW_GJC_AI_CERDShadowReport.pdf. See A Post-Roe America: The Legal Consequences of the Dobbs Decision: Hearing before the Senate Committee on the Judiciary, 117th Cong. section IV (2022) (statement of Khiara M. Bridges Professor of Law, UC Berkeley School of Law), https://www.judiciary.senate.gov/imo/media/doc/Testimony%20-%20Bridges%20-%202022-07-121.pdf.

[159] See generally A. Bissonnette, “Caged Women”: Migration, Mobility and Access to Health Services in Texas and Arizona, 37 J. Borderlands Studies 1 (9 Apr. 2020), tandfonline.com/doi/abs/10.1080/08865655.2020.1748515?journalCode=rjbs20.

[160] Barriers to sexual and reproductive health services faced by immigrant women of reproductive age in the United States, Ibis Reproductive Health (Jan. 2023),   https://www.ibisreproductivehealth.org/sites/default/files/files/publications/Access%20to%20SRH%20services_immigrants%20brief%20FINAL.pdf. Many noncitizen US residents are ineligible for Medicaid and the Children’s Health Insurance Program (CHIP) for their first five years in the country. Health coverage for lawfully present immigrants: Immigrants and Medicaid & CHIP, HealthCare.Gov (17 Jan. 2023),  https://www.healthcare.gov/immigrants/lawfully-present-immigrants/.

[161] S. Ahmed, “Abortion worries heightened for unauthorized immigrants in the U.S.,” Reuters (5 July 2022),  https://www.reuters.com/world/us/abortion-worries-heightened-unauthorized-immigrants-us-2022-07-05/.

[162] Interview by Foley Hoag LLP with Dr. Elissa Serapio (25 July 2022).

[163] Human Rights Watch, “The Only People It Really Affects Are the People It Hurts” (11 Mar. 2021), https://www.hrw.org/report/2021/03/11/only-people-it-really-affects-are-people-it-hurts/human-rights-consequences.

[164] “Barriers to sexual and reproductive health services faced by immigrant women of reproductive age in the United States,” Ibis Reproductive Health (Jan. 2023),  https://www.ibisreproductivehealth.org/sites/default/files/files/publications/Access%20to%20SRH%20services_immigrants%20brief%20FINAL.pdf.

[165] See K.L. Gilbert et al., “Dobbs, another frontline for health equity,” Brookings Institution (30 June 2022),  https://www.brookings.edu/blog/how-we-rise/2022/06/30/Dobbs-another-frontline-for-health-equity/; M. Kirstein et al., “100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering Abortion Care,” Guttmacher Institute (6 Oct. 2022), https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-stopped-offering-abortion-care (Noting that abortion bans lead to clinic closures and “[w]hen clinics close down or stop offering abortion care, it represents a lost source of health care for their community.”).

[166] See K. L. Gilbert et al., “Dobbs, another frontline for health equity,” Brookings Institution (30 June 2022),  https://www.brookings.edu/blog/how-we-rise/2022/06/30/Dobbs-another-frontline-for-health-equity/ (“Of the 13 states that have an immediate trigger law, 9 of them rank number 30 or lower in overall state health using data from America’s Health Rankings. More than 10 of these states rank in the bottom half for public health and healthcare quality.”).

[167] See National Institute of Justice, “Violence Against American Indian and Alaska Native Women and Men: 2010 Findings From the National Intimate Partner and Sexual Violence Survey,” (May 2016), pp. 2, 14, available at https://www.ojp.gov/pdffiles1/nij/249736.pdf (Indigenous women); S.E. Tan & K. Kuschminder, “Migrant experiences of sexual and gender based violence: a critical interpretative synthesis,” Global Health (2022), pp. 18, 68 (migrant women); “Violence Against Women in the United States: Statistics,” available at https://now.org/resource/violence-against-women-in-the-united-states-statistic (low-income women); J. Barlow “Black women, the forgotten survivors of sexual assault,” https://www.apa.org/pi/about/newsletter/2020/02/black-women-sexual-assault (Black women); R. Dowd “Transgender people over four times more likely than cisgender people to be victims of violent crime,” UCLA School of Law Williams Institute (23 Mar. 2021),  https://williamsinstitute.law.ucla.edu/press/ncvs-trans-press-release (transgender men); “Violence and Abuse in Rural America” (last reviewed 26 Mar. 2021), https://www.ruralhealthinfo.org/topics/violence-and-abuse (women in rural communities); CDC, “Sexual Violence and Intimate Partner Violence Among People with Disabilities” (last reviewed 1 June 2020), https://www.cdc.gov/violenceprevention/sexualviolence/svandipv.html (women with disabilities). 

[168] Most states with abortion bans in effect do not have any exception for pregnancies that result from rape or incest. F. Cineas, “Rape and incest abortion exceptions don’t really exist,” Vox (22 July 2022),  https://www.vox.com/23271352/rape-and-incest-abortion-exception. See, e.g., Alabama Human Life Protection Act (H.B. 314, § 7); Wisconsin § 940.04(5); Wyoming § 35-6-102.(b); Texas Health & Safety Code Title 2, Subtit. H, Ch. 170A; Tennessee Code Ann. § 39-15-213.(c)(1)-(3); South Dakota, § 22-17-5.1; Miss. Code Ann. § 41-41-45.(2) (contemplating rape only); Louisiana § 40:1061.F-G; Kentucky § 311.772.(4)(a)-(b); Arkansas A.C.A. § 5-61-304(a); Arizona A.R.S. § 13-3603.02.A; Oklahoma S.B. 612 Section A.B.3.a; Missouri (§ 188.017 R.S.Mo.).

[169] Most states with a rape exception to their abortion ban require the victim to report the rape to the police in order to obtain an abortion. F. Cineas, “Rape and incest abortion exceptions don’t really exist,” Vox (22 July 2022),  https://www.vox.com/23271352/rape-and-incest-abortion-exception.

[170] RAINN, The Criminal Justice System: Statistics, https://www.rainn.org/statistics/criminal-justice-system.

[171] D. Thompson, “When Abortion Means Traveling, More Women Forgo Procedure: Study”, US News (16 May 2022), https://www.usnews.com/news/health-news/articles/2022-05-16/when-abortion-means-traveling-more-women-forgo-procedure-study.

[172] See N. Hassanein, “People of color, the poor and other marginalized people to bear the brunt if Roe v. Wade is overturned,” USA Today (3 May 2022), https://www.usatoday.com/story/news/health/2022/05/03/people-color-most-impacted-if-roe-v-wade-overturned/9626866002/. See also A. Schrager, “No Abortion Means Poor States Will Get Poorer,” The Washington Post (4 May 2022), https://www.washingtonpost.com/business/no-abortion-means-poor-states-will-get-poorer/2022/05/04/276bcde6-cb9a-11ec-b7ee-74f09d827ca6_story.html.

[173] D. Thompson, “When Abortion Means Traveling, More Women Forgo Procedure: Study,” US News (16 May 2022), https://www.usnews.com/news/health-news/articles/2022-05-16/when-abortion-means-traveling-more-women-forgo-procedure-study. 

[174] B. Rader MPH et al., Estimated Travel Time and Spatial Access to Abortion Facilities in the US Before and After the Dobbs v Jackson Women’s Health Decision, JAMA 2022;328(20):2041–2047,  https://jamanetwork.com/journals/jama/article-abstract/2798215.

[175] See J. Bearak et al., “Disparities and change over time in distance women would need to travel to have an abortion in the USA: a spatial analysis,” Lancet Public Health (Nov. 2017),  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5943037/. See also R. Bleiweis et al., “The Basic Facts About Women in Poverty” (3 Aug. 2020), CAP, https://www.americanprogress.org/article/basic-facts-women-poverty; Status of Women in the States, “Spotlight on Immigrant Women: The Employment and Earning of Immigrant Women,” https://statusofwomendata.org/immigrant-women; M.V. Badgett et al., “ LGBT Poverty in the United States,” UCLA School of Law Williams Institute (Oct. 2019), https://williamsinstitute.law.ucla.edu/publications/lgbt-poverty-us; Committee Opinion, “Health Disparities in Rural Women,” The American College of Obstetricians and Gynecologists (Feb. 2014, reaffirmed in 2021), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2014/02/health-disparities-in-rural-women (rural women).

[176] D. Foster, The Turnaway Study: The Cost of Denying Women Access to Abortion (2020).

[177] D. Foster, New abortion bans will increase existing health and economic disparities, 112 Am. J. Pub. Health 1276 (June 2022), https://ajph.aphapublications.org/doi/10.2105/AJPH.2022.306993.

[179] See United Nations, The State Parties to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-2&chapter=4&clang=_en (US ratification, 21 Oct. 1994).

[180] See United Nations, The State Parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),  https://www.ohchr.org/sites/default/files/cat.pdf (US ratification, 21 Oct. 1994).

[181] See United Nations, The State Parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4 (US ratification, 5 Oct. 1977).

[182] See United Nations, The State Parties to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4&clang=_en (US ratification, 17 July 1980).

[183] See United Nations, The State Parties to the Convention on the Rights of the Child (CRC),  https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&clang=_en (US ratification, 16 Feb. 1995).

[184] See United Nations, The State Parties to the Convention on the Rights of Persons with Disabilities (CRPD),  https://treaties.un.org/pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-15&src=IND (US ratification, 30 July 2009).

[185] See United Nations, Vienna Convention on the Law of Treaties (23 May 1969), United Nations, Treaty Series (Vol. 1155) (VCLT), Art. 18. 

[186] See Brief of the United Nations Mandate Holders as Amici Curiae, Dobbs v. JWHO., 142 S. Ct. 2228, p. 9 (20 Sept. 2021), https://www.supremecourt.gov/DocketPDF/19/19-1392/193045/20210920163400578_19-1392%20bsac%20United%20Nations%20Mandate%20Holders.pdf.

[187] As recently summarized by the Working Group on discrimination against women and girls: “sexual and reproductive health rights are clearly established under international law. They are an integral part of a number of civil and political rights that underpin the physical and mental integrity of individuals and their autonomy, such as the rights to life, liberty and security of person, freedom from torture and other cruel, inhuman or degrading treatment, privacy and respect for family life, as well as economic, social and cultural rights, such as the rights to health, education and work and the right to enjoy the benefits of scientific progress, and the cross-cutting rights of non-discrimination and equality.” Working Group on discrimination against women and girls, Women’s and girls’ sexual and reproductive health rights in crisis (U.N. Doc. A/HRC/47/38) (28 Apr. 2021), ¶ 18.

[189] See ICERD, Art. 5(e)(iv). See also ICESCR Art. 12; CEDAW Arts. 11(1)(f), 12, 14(2)(b); CRPD Art. 25; CRC Art. 24. See also CESCR, General Comment No. 22 (2016) on the right to sexual and reproductive health (U.N. Doc. E/C.12/GC/22) (2 May 2016), ¶¶ 10-11, 13-14, 45, 49; CRC Committee, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (U.N. Doc. CRC/C/GC/15) (17 Apr. 2013), ¶ 56; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Violence and its impact on the right to health (U.N. Doc. A/HRC/50/28) (14 Apr. 2022), ¶ 20 (describing how “States violate the right to health when they fail to take effective steps to prevent third parties from undermining the enjoyment of the right to sexual and reproductive health”).

[190] HRC, General Comment No. 36, Art. 6 (Right to Life) (U.N. Doc. CCPR/C/GC/36) (3 Sept. 2019), ¶ 8.

[192] See CESCR, General Comment 22 (2016) on the right to sexual and reproductive health (U.N. Doc. E/C.12/GC/22) (2 May 2016), ¶ 5 (“The freedoms [protected under the right to health] include the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health[, and entitle all people to] full enjoyment of the right to sexual and reproductive health[.]”); CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (U.N. Doc. E/C.12/2000/4) (11 Aug. 2000), ¶ 8 (“The freedoms [protected under the right to health] include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference[.]”); CRPD Committee and CEDAW Committee, Guaranteeing sexual and reproductive health and rights for all women, in particular women with disabilities (29 Aug. 2018), https://www.ohchr.org/en/treaty-bodies/crpd/statements-declarations-and-observations (“Access to safe and legal abortion, as well as related services and information are essential aspects of women’s reproductive health and a prerequisite for safeguarding their human rights to life, health, equality before the law and equal protection of the law, non-discrimination, information, privacy, bodily integrity and freedom from torture and ill treatment.”); CEDAW Committee, L.C. v. Peru (U.N. Doc. CEDAW/C/50/D/222009) (2011), ¶ 8.15,  https://www2.ohchr.org/english/law/docs/cedaw-c-50-d-22-2009_en.pdf (“[T]he Committee considers that, owing to her condition as a pregnant woman, L.C. did not have access to an effective and accessible procedure allowing her to establish her entitlement to the medical services that her physical and mental condition required.”); CERD Committee, Concluding observations on the combined tenth to twelfth reports of the United States of America (U.N. Doc. CERD/C/USA/CO/10-12) (21 Sept. 2022), ¶¶ 35-36.

[193] See ICCPR, Art. 17; CRC, Art. 16.

[194] The Human Rights Committee has found violations of the right to privacy in every case it has considered when the State interfered with reproductive decision-making or abortion access. See HRC, Whelan v. Ireland, CCPR/C/119/D/2425/2014 (“Whelan v. Ireland”), ¶ 7.8; HRC, Mellet v. Ireland, CCPR/C/116/D/2334/2013 (“Mellet v. Ireland”), ¶ 7.7-7.8; HRC, K.L. v. Peru, CCPR/C/85/D/1153/2003 (“K.L. v. Peru”), ¶ 6.4; HRC, V.D.A. (on behalf of L.M.R.) v. Argentina, CCPR/C/101/D/1608/2007 (“V.D.A. v. Argentina”), ¶ 9.3; HRC, General Comment 28 (2000) on the equality of rights between men and women (U.N. Doc. CCPR/C/21/Rev.1/Add.10) (29 Mar. 2000), ¶ 20 (“States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women’s right to enjoy privacy” such as “where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. . . . States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17, and on the measures taken to eliminate such interference and to afford women protection from any such interference.”).

[195] See Whelan v. Ireland, ¶ 7.9; Mellet v. Ireland, ¶ 7.8; K.L. v. Peru, ¶ 6.4.

[196] Memorandum from Oklahoma Attorney General to All Oklahoma Law Enforcement Agencies on Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org. (31 Aug. 2022),  https://www.ok.gov/cleet/documents/Memo%20to%20Law%20Enforcement%20Following%20Dobbs%20(8.31.22).pdf.

[198] See, e.g., Whelan v. Ireland, ¶ 7.5-7.7; Mellet v. Ireland, ¶ 7.4-7.6; K.L. v. Peru, ¶ 6.3; V.D.A. v. Argentina, ¶ 9.2; CAT Committee, Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland (U.N. Doc. CAT/C/GBR/CO/6) (7 June 2019), ¶¶ 46-47; CAT Committee, Concluding observations of the Committee against Torture – Paraguay (U.N. Doc. CAT/C/PRY/CO/4-6) (14 Dec. 2011), ¶ 22; CAT Committee, Concluding observations on the initial report of Timor-Leste (U.N. Doc. CAT/C/TLS/CO/1) (29 Nov. 2017), ¶ 34.

[199] See CAT, Art. 16; ICCPR, Art. 7; CRC, Arts. 19, 37; CRPD, Art. 15.

[200] See CAT Committee, Concluding observations on the seventh periodic report of Poland (U.N. Doc. CAT/C/POL/CO/7) (29 Aug. 2019), ¶ 33(d).

[201] See HRC, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (U.N. Doc. A/HRC/31/57) (5 Jan. 2016), ¶ 44 (“The denial of safe abortions and subjecting women and girls to humiliating and judgmental attitudes in such contexts of extreme vulnerability and where timely health care is essential amount to torture or ill treatment.”).

[202] CAT Committee, Concluding observations on the third periodic report of the Philippines (U.N. Doc. CAT/C/PHL/CO/3) (2 June 2016), ¶ 40(b) (urging the state to “[r]eview its legislation in order to allow for legal exceptions to the prohibition of abortions in specific circumstances such as when the pregnancy endangers the life or health of the woman, when it is the result of rape or incest and in cases of foetal impairment…”) (emphasis added).

[203] See K.L. v. Peru, ¶ 6.3; Mellet v. Ireland, ¶¶ 7.4-7.6; Whelan v. Ireland, ¶¶ 7.4-7.7.

[204] V.D.A. v. Argentina, ¶ 9.2. See also HRC, General comment No. 36, Art. 6: right to life (U.N. Doc. CCPR/C/GC/36) (3 Sept. 2019), ¶ 8 (“States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or where the pregnancy is not viable.”) (emphasis added).

[205] CEDAW Committee, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (U.N. Doc. CEDAW/C/GC/35) (26 July 2017), ¶ 18.

[207] HRC, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (U.N. Doc. A/HRC/38/36) (10 Apr. 2018), ¶ 75.

[208] HRC, Concluding observations on the seventh periodic report of El Salvador (U.N. Doc. CCPR/C/SLV/CO/7) (9 May 2018), ¶ 16.

[209] See supra ¶¶ 22-23 on “fetal personhood” approaches.

[211] HRC, Report of the Working Group on Arbitrary Detention on its visit to the United States of America (U.N. Doc. A/HRC/36/37/Add.2) (17 July 2017), ¶¶ 73-74 (Detention on discriminatory grounds is defined as arbitrary). See HRC, Rep. of the Working Grp. on Arbitrary Det., Annex (U.N. Doc. A/HRC/16/47) (19 Jan. 2011), p. 23, ¶ 8(e). See also OHCHR, “Working Group on Arbitration Detention: About Arbitrary Detention”, available at https://www.ohchr.org/en/about-arbitrary-detention (clarifying that the definition of arbitrary detention under the Working Group’s mandate includes “deprivation[s] of liberty [which] constitute[] a violation of the international law for reasons of discrimination based on…gender,…disability; or other status….”).

[212] See ICCPR, Art. 18.

[213] HRC, General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (U.N. Doc. CCPR/C/GC/22) (20 July 1993), ¶ 4.

[214] HRC, Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt (U.N. Doc. A/HRC/71/269/) (28 Dec. 2016), ¶ 15.

[215] The HRC is clear that the concept of “morals” derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. HRC, General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (U.N. Doc. CCPR/C/GC/22) (30 July 1993), ¶ 8. In its general comment on freedom of expression which contains a similar limitation clause, the HRC reiterated this and outlined that interpretation of morality should comply with the conception of human rights as ‘universal’, with particular emphasis on the standard of non-discrimination. See also HRC, General Comment No. 34: Art. 19 (Freedoms of opinion and expression) (U.N. Doc. CCPR/C/GC/34) (12 Sept. 2011), ¶ 32; HRC, General Comment No. 37: Article 21 (Right of peaceful assembly) (U.N. Doc.CCPR/C/GC/37) (17 Sept. 2020), ¶ 46.

[217] Id.; HRC, Freedom of religion or belief: Report of the Special Rapporteur on freedom of religion or belief (U.N. Doc. A/HRC/40/58) (5 Mar. 2019), ¶ 17.

[218] See HRC, General Comment No. 34: Art. 19 (Freedoms of opinion and expression) (U.N. Doc. CCPR/C/GC/34) (12 Sept. 2011), ¶ 25.

[219] See supra Section I(B).

[220] See supra Section I(B) on the human rights implications of criminal abortion laws in the US.

[221] See supra note 219, ¶ 34 (Outlining that the grounds for restriction “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law.”).

[222] See ICCPR, Arts. 2-3, 26; ICERD, Arts. 2, 5; CEDAW, Art. 12.

[223] See Mellet v. Ireland, ¶¶ 7.11, 3.19; Whelan v. Ireland, ¶ 7.12.

[224] CEDAW Committee, General Recommendation No. 24: Article 12 of the Convention (Women and Health) (U.N. Doc. A/54/38/Rev.1) (1999), ¶ 11 (“It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women.”).

[225] CEDAW Committee, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (U.N. Doc. CEDAW/C/OP.8/GBR/1) (6 Mar. 2018), ¶ 74.

[226] Working Group on the issue of discrimination against women in law and in practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017), p. 2, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf.

[227] See supra ¶¶ 33-37.

[228] See ICERD, Arts. 2, 5. See also CERD Committee, Concluding observations on the combined tenth to twelfth reports of the United States of America (U.N. Doc. CERD/C/USA/CO/10-12) (21 Sept. 2022), ¶¶ 35-36.

[229] CERD Committee, Concluding observations on the combined tenth to twelfth reports of the United States of America (U.N. Doc. CERD/C/USA/CO/10-12) (21 Sept. 2022), ¶ 35.

[231] Mellet v. Ireland, ¶ 7.11.

[233] Working Group on the issue of discrimination against women in law and in practice, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (Oct. 2017), p. 2,  https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/WomensAutonomyEqualityReproductiveHealth.pdf.

[235] CRC Committee, General Comment No. 20 on the implementation of the rights of the child during adolescence (U.N. Doc. CRC/C/GC/20) (6 Dec. 2016), ¶ 60.

[236] Id., ¶¶ 60-61 (finding that adolescent girls should have access to information about sexual and reproductive health along with access to adequate health services). See also CRC Committee, General Comment No.4: Adolescent health and development in the context of the Convention on the Rights of the Child (U.N. Doc. CRC/GC/2003/4) (1 July  2003), ¶ 13.

[237] See Office of the United Nations High Commissioner for Human Rights (OHCHR), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (HR/PUB/11/04) (2011), ¶ 11 (noting that “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations….The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions.”). See also Human Rights Watch, Federal Trade Commission Comment Re: Commercial Surveillance ANPR, R111004 (21 Nov. 2022).

[238] See supra Section I(C).

[239] See Statement, OHCHR, “Bachelet on US ruling on Dobbs v Jackson Women’s Health Organization” (24 June  2022), https://www.ohchr.org/en/statements/2022/06/bachelet-us-ruling-Dobbs-v-jackson-womens-health-organization.

[240] See Press Release, Special Procedures, “USA: UN experts denounce Supreme Court decision to strike down Roe v. Wade, urge action to mitigate consequences” (24 June 2022), https://www.ohchr.org/en/press-releases/2022/06/usa-un-experts-denounce-supreme-court-decision-strike-down-roe-v-wade-urge (Statement signed by the Working Group on discrimination against women and girls; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on violence against women, its causes and consequences; and endorsed by the Special Rapporteur on freedom of religion or belief; the Special Rapporteur on the rights of persons with disabilities; the Special Rapporteur in the field of cultural rights; the Special Rapporteur on trafficking in persons, especially women and children; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; and the Special Rapporteur on the right to privacy). See also Center for Reproductive Rights, “Protecting Abortion Access in Europe – A Call to Action” (28 June 2022), https://reproductiverights.org/protecting-abortion-access-in-europe-a-call-to-action (“We are deeply concerned about the devastating consequences this regressive judgment will have for the lives, health and wellbeing of people across the United States.”); Brief of the United Nations Mandate Holders as Amici Curiae, Dobbs v. JWHO., 142 S. Ct. 2228, pp. 31-33 (2022), https://www.supremecourt.gov/DocketPDF/19/19-1392/193045/20210920163400578_19-1392%20bsac%20United%20Nations%20Mandate%20Holders.pdf (“Overturning or curtailing constitutional protections to abortion access established in Roe and Casey constitutes retrogression in violation of human rights law.…Dismantling the U.S. framework that has protected abortion access for nearly 50 years will lead to further violations of women’s and girls’ human rights.”).

[241] World Health Organization [WHO], Abortion Care guideline (8 Mar. 2022),  https://www.who.int/publications/i/item/9789240039483.