Monday, June 3, 2024

Greer Donley and Caroline Kelly on "Abortion Disorientation"

Greer Donley and Caroline Kelly have posted a draft of their work-in-progress, titled Abortion Disorientation, on SSRN. This work-in-progress will be published in Volume 74 of the Duke Law Journal. Here is the draft's abstract: 

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do we know what it means? Not only do law and medicine define it differently; state legislatures have codified wildly different definitions of abortion across jurisdictions. Our analysis exposes inherent ambiguities at the boundaries of the term, particularly as abortion intersects with other categories that we often think of as distinct: pregnancy loss, ectopic pregnancy, and other forms of medically necessary care. By juxtaposing statutory text next to real people’s experiences of being denied care in states with abortion bans, we reveal how those ambiguities have led to tragic results. Our analysis tracks how legislatures have responded to the tragedies of their own making by changing the definition of abortion to exclude certain types of care. Fifteen abortion-hostile legislatures have changed the definition of abortion since Dobbs, thirteen of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, molar pregnancy, or fertility treatment. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights. Our analysis concludes that antiabortion legislatures are running a fool’s errand: that it is impossible to fully distinguish abortion from other types of reproductive healthcare. The lines drawn are inherently vague, incoherent, and impossible to rectify. The Dobbs framework, which moved the complicated experience of pregnancy from the medical to the legal domain, is functionally unworkable, strengthening calls to overturn the decision.

A full version of the draft article is available here

Abortion, Legislation, Pregnancy, Reproductive Rights | Permalink


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