Wednesday, November 29, 2023
Jolynn Dellinger and Stephanie Pell (Duke Law School and Brookings Institution) have posted Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World (19 Duke J. Const. L. & Pub. Pol'Y (2024 Forthcoming)) on SSRN. Here is the abstract:
In the wake of Dobbs v. Jackson Women’s Health Organization, state laws criminalizing abortion raise concerns about the investigation and prosecution of women seeking reproductive healthcare and about the surveillance such investigations will entail. The criminalization of abortion is not new, and the investigation of abortion crimes has always involved the surveillance of women. However, state statutes criminalizing abortion coupled with surveillance methods and technologies that did not exist pre-Roe present new and complex challenges surrounding the protection of women’s privacy and liberty interests—in addition to the interests of those who may provide or help pregnant people obtain reproductive care. Accordingly, surveillance, investigation, and the possibility of prosecution create new and more extensive privacy concerns than those traditionally associated with the right to decide whether to have an abortion.
What is also new and disruptive is the existence of medication abortion, which was not available pre-Roe. Medication abortion functionally allows people to self-manage abortions safely in the privacy of their own homes, and its availability undermines the efficacy of bans that target providers, aiders, and abettors. How states will apply statutes that criminalize abortion and investigate “abortion crimes” in the context of new opportunities for safe, self-managed abortions will play out over time. This article, taking lessons about the surveillance of women from the pre-Roe era of abortion criminalization, is the first to evaluate new and existing laws criminalizing abortion post-Dobbs and consider how modern technologies directed toward the investigation of individuals self-managing abortions through medication will magnify the pervasiveness, scale, and harm of such surveillance.