The criminalization of abortion and surveillance of women in a post-Dobbs world

On February 16, the Alabama Supreme Court held that frozen embryos were “children” under Alabama’s Wrongful Death of a Minor Act. While this was a decision about in vitro fertilization (IVF), Alabama’s recognition of embryos as persons is simply a logical extension of the anti-abortion movement’s long-time commitment to the notion of fetal personhood, an idea now animating the post-Dobbs criminalization of reproductive care. A number of state legislatures have already granted personhood status to fertilized eggs or unborn children in utero at any stage of development.

Consistent with the anti-abortion movement’s goal of a nationwide recognition of fetal personhood, the criminalization of abortion is a tool for preventing abortions from ever occurring. In our new article, Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, we explore: how ban states are criminalizing abortion; the way medication abortion is disrupting abortion bans; the threat of prosecution faced by women who self-manage abortions with medication; and the ways modern surveillance technologies enable law enforcement investigations of abortion crimes.

The criminalization of abortion is one of several strategies endorsed by the anti-abortion movement and adopted in states attempting to enforce abortion bans and defend them against circumvention by medication abortion.

Medication abortion, a two-pill regimen involving mifepristone and misoprostol, is approved by the FDA for terminating a pregnancy up to 10 weeks. While the FDA approved the use of mifepristone in 2000, the revolutionary promise of medication abortion—where a woman can receive the medication in the mail, then safely self-manage an abortion in the privacy of her own home—was not realized until the FDA permanently lifted the in-person dispensing requirement in 2021. Not surprisingly, research from the Guttmacher Institute indicates that medication abortion now accounts for 63% of abortions in the United States, up from 53% in 2020.

Because of medication abortion, pregnant people living in states that ban or severely restrict abortions have access to a form of abortion care that was not available pre-Roe. Today, pills can be moved across state lines, doctors in abortion-protective states can offer telehealth care to women in ban states, and organizations like Aid Access can mail abortion medication from overseas. It is no longer necessary for all women in ban states to travel out of state to access abortion care.

The anti-abortion movement is, of course, aware of the ways in which medication abortion can thwart abortion bans and is attacking the problem on a number of fronts. In one response to this threat, a group of anti-abortion doctors brought a lawsuit challenging both the FDA’s original approval of mifepristone in 2000 and subsequent actions in 2016 and 2021 to improve access to and availability of the drug. The goal of the lawsuit is to remove mifepristone from the U.S. market, a result that would drastically reduce access to medication abortion for all women in the United States, regardless of the state in which they live. The Fifth Circuit granted partial relief to the doctors, landing the case in front of the Supreme Court after the government’s petition for writ of certiorari was granted. The Court heard oral arguments on March 26.

While it is unwise to predict how the Court will rule on any case, a majority of justices during the oral argument seemed to express some skepticism that the doctors who brought the suit had the necessary legal standing to seek the requested relief. The Court could thus dispose of the case without ever reaching its merits.

Even if the challenge to the FDA’s treatment of mifepristone is unsuccessful, however, the case presented an opportunity for the plaintiffs to bring attention to another of the movement’s strategies—one that was raised on three separate occasions during the oral argument by Justices Alito and Thomas. This strategy concerns the Comstock Act, a federal obscenity law from 1873, virtually dormant but still on the books, that criminalizes the mailing of “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”

A literal interpretation of this law would, at a minimum, make the mailing of any kind of abortifacient unlawful, essentially resulting in a nationwide ban on medication abortion. While the Department of Justice under the Biden administration interprets the Comstock Act narrowly, the Justice Department under a Trump administration is free to reject that interpretation. To achieve a nationwide abortion ban, the anti-abortion movement doesn’t need Congress or even the courts—it only needs Donald Trump to be elected. And while Congress could certainly repeal the Comstock Act, that is not an outcome anyone should expect in the near future.

As the anti-abortion movement pursues these strategies, another more familiar tactic for preventing women from self-managing abortion with medication is also available: the prosecution of women and those that may assist them. Although providers have historically been the primary targets of abortion laws, women have been investigated and prosecuted for pregnancy-related conduct and a variety of pregnancy outcomes, even during the Roe era. And, in 2016, when candidate Donald Trump was asked whether he thought women who sought an illegal abortion should face criminal punishment, he answered in the affirmative—“there has to be some sort of punishment.”

Some state officials, politicians, and movement leaders claim that no one intends to prosecute pregnant women for abortion crimes. Others, emboldened by the demise of Roe, have suggested that criminal punishment of pregnant women who seek or obtain abortions is logical, morally justifiable, and required to end abortion.

As we explore in our article, a number of current states’ laws—including personhood laws—provide prosecutors with the tools to investigate and prosecute women who self-manage abortion using medication and those that assist them. The decision whether to do so will generally turn on a prosecutor’s interpretation of these laws, many of which do not explicitly exempt women from prosecution, and his or her exercise of prosecutorial discretion.

Georgia, for example, has passed a personhood law. Its “Living Infants Fairness and Equality” Act (LIFE Act) bans abortion after six weeks, a time at which most women don’t even know they are pregnant, and states that “[i]t shall be the policy of the state of Georgia to recognize unborn children as natural persons.” It defines “natural person” as “any human being, including an unborn child,” and defines “unborn child” as “a member of the species of Homo sapiens at any stage of development who is carried in the womb.” By including “unborn child” in the definition of natural person, the LIFE Act raises the possibility that a woman who obtains or self-manages an abortion after six weeks could be charged with murder.

In Georgia, a person commits murder “when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” No exemptions from prosecution are provided in the LIFE Act. While our article identifies some ambiguity surrounding whether a woman having or self-managing an abortion could be prosecuted for murder under Georgia’s LIFE Act, Douglas County District Attorney Ryan Leonard previously indicated that women in Georgia “should prepare for the possibility that they could be criminally prosecuted for having an abortion. . . . If you look at it from a purely legal standpoint, if you take the life of another human being, it’s murder.” This prosecutor’s statement is an example of a threat of prosecution, where a public official purposefully wields fear and uncertainty to enforce an abortion ban.

Meanwhile, an April 1 ruling by the Florida Supreme Court enabled a six-week abortion ban to take effect by May 1, replacing the current law, which bans abortion after 15 weeks. In Florida, “[a]ny person who willfully performs, or actively participates in, a termination of pregnancy in violation” of the law before or during viability “commits a felony of the third degree, punishable” by a term of imprisonment not exceeding five years and fines. There is no exemption for pregnant women. The broad “any person” language subjects women who self-manage abortion through medication to the threat of investigation and prosecution.¹ Recognizing this possibility, Florida legislators proposed H.B.111 in October 2023, a bill that explicitly exempts pregnant women from prosecution for terminating their pregnancies: “This paragraph does not apply to the pregnant woman who terminates the pregnancy.” The bill died in subcommittee in March of this year.

Florida’s six-week ban features the same broad language prohibiting “any person” from engaging in the proscribed conduct. Accordingly, women will continue to be at risk of investigation and prosecution under the new law. There were 84,052 abortions in Florida last year, an increase of 2,000 abortions from 2022. More than 7,000 of those women came to Florida from other states. With the imposition of the six-week ban, the use of medication abortion will undoubtedly spike. Women continue to have abortions even when they are illegal.

Georgia and Florida are just two examples of states with laws that subject women to the threat of prosecution for self-managing abortions. There are also a range of laws “related to fetal remains, child abuse, felony assault or assault of an unborn child, practicing medicine without a license, or homicide and murder” that don’t even mention or outlaw abortion, but which have been used to investigate and prosecute people for conduct related to the alleged termination of their own pregnancies, even while Roe was the law of the land.

In the post-Dobbs world, prosecutors who choose to investigate women for self-managing abortions have an array of modern surveillance technologies at their disposal. In our article, we present three hypothetical scenarios involving law enforcement investigations of a single mom, a college student, and a high school student based on alleged self-managed abortions. In each of the scenarios, we attempt to illustrate what is possible based on current law and technology. We are not suggesting that these exact scenarios have occurred or will occur. But aspects of these fact patterns are consistent with cases described in If/When/How’s 2023 report documenting the ways in which women were investigated and prosecuted for conduct pertaining to self-managed abortions between 2000 and 2020, prior to the fall of Roe.

Whether abortion laws target providers, aiders and abettors, or women themselves, the criminalization of abortion necessarily involves the surveillance of women. Women’s bodies are often the so-called scene of the crime, and their personal data will, more likely than not, be evidence of the crime. The modern digital environment only amplifies the scope and harm of that surveillance. Communications with friends and family, internet searches, websites visited, purchases made, data shared with mobile apps, location, and other data generated in the course of everyday life become evidence that can be used in prosecutions against women and those that assist them in obtaining abortions.

We offer no single, silver bullet solution for the threat of surveillance and prosecution women face in a post-Dobbs world. But there are some intermediate measures that can mitigate this threat. As our research demonstrates, state laws criminalizing abortion are, on the whole, a confusing morass. They often do not unambiguously preclude the prosecution of women. Confusing statutory language coupled with the unpredictability of prosecutorial discretion creates uncertainty—which in turn curtails women’s liberty, compromises their privacy interests, and puts their health at risk. State legislators, especially those who claim that there is no intention to prosecute women, should ensure that laws clearly and explicitly exempt women from prosecution.

Another avenue that holds some promise for disrupting the threat is specifically tied to the state of Delaware, where many big platforms and technology companies are incorporated. Delaware, we argue, should join California and Washington in passing a data shield law that includes provisions specifically designed to prevent companies from turning over data sought by law enforcement organizations from ban states that are investigating abortion crimes. Such a shield law could provide one significant hurdle to law enforcement attempts to investigate and prosecute women who have abortions and those that assist them. As the chosen state of incorporation for many tech companies holding data relevant to the investigation of abortion crimes, Delaware has a unique opportunity to engage in threat mitigation.