Bhasin on Evidence Law's Role in Criminalizing Pregnancy

Asees Bhasin has posted Not so Neutral: Evidence Law's Role in Criminalizing Pregnancy on SSRN. Here is the abstract:

In the post-Dobbs landscape, the criminalization of abortion may involve the targeting of several parties including recipients of reproductive care, care providers, and parents or guardians who may assist an individual in accessing care. While there has been strong resistance to anti-abortion laws and policies, as well as to laws that punish pregnant and birthing people, this Article identifies one site of tension and potential resistance to the pregnancy criminalization apparatus that has been ignored and under-explored in legal scholarship and practice—the rules of evidence that gatekeep the type of evidence that is put forth before factfinders. 

There are many cases in which the evidence that is admitted and put forth before factfinders does not meet the “relevance standard” imposed by Federal Rule of Evidence (FRE) 401. Courts may admit evidence of a woman’s abortion history, her decision not to access prenatal care, her ingestion of controlled substances, or her demeanor and sexual history in certain cases. Consider the Akers case that is currently being litigated in Maryland. Here, a jury found Moira Akers guilty of second-degree murder and first-degree child abuse after the defendant reportedly experienced a stillbirth. The State argued that she had suffocated her child. The prosecution sought to introduce evidence of her statements that she did not receive prenatal care. Given this evidence, the court concluded that her lack of prenatal care was probative of her intent during her pregnancy to harm or cause the death of her baby once it was delivered. This article will analyze the chain of inferences that led to an outcome where a woman’s decision to access prenatal care was considered relevant and thereby admissible in a trial where the prosecution’s burden was that the pregnant person suffocated a newborn infant. It will discuss the abortion myths that the court relied upon in its assessment of relevance.

In some cases, the evidence offered may meet the low “relevance” standard but does not clear the requirements imposed by FRE 403 that precludes the admission of unfairly prejudicial evidence. Judges, who are often White males, admit this evidence despite it being “unfairly prejudicial,” thereby significantly disadvantaging the person whose reproductive choices are being litigated. On the other hand, stories about an individual’s personal life, or what may be considered “overly emotional” evidence, are kept out of courts using prejudice rules, despite the fact that such evidence may provide a rich context to understanding one’s reproductive decision-making. Similarly, character evidence about a person and inferences about their “reproductive propensities” may be introduced in pregnancy prosecutions in innocuous ways, thereby leading to prejudice.

Part I of this Article provides a theoretical foundation for this conversation and discusses grounding principles from feminist legal theory and critical evidence law traditions. Part II of this Article will look specifically at the application of the evidence rules of relevance, unfair prejudice, expert witness testimony, and character evidence to demonstrate how rules are misapplied or when applied privilege subordinating interpretations of the rules. Part III of this article concludes by providing theoretical and practical recommendations supporting interpretations of the rules that are aligned with the visions of pregnancy justice.