Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World

108 Pages Posted: 8 Nov 2023 Last revised: 27 Mar 2024

See all articles by Jolynn Dellinger

Jolynn Dellinger

Duke University School of Law

Stephanie Pell

Brookings Institution

Date Written: October 8, 2023

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 health care 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 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.

Keywords: Abortion, Criminalization, Privacy, Surveillance, Dobbs

Suggested Citation

Dellinger, Jolynn and Pell, Stephanie K., Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World (October 8, 2023). 19 Duke J. Const. L. & Pub. Pol'Y 1 (2024 Forthcoming), Duke Law School Public Law & Legal Theory Series No. 2023-66, Available at SSRN: https://ssrn.com/abstract=4599445 or http://dx.doi.org/10.2139/ssrn.4599445

Jolynn Dellinger

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Stephanie K. Pell (Contact Author)

Brookings Institution ( email )

1775 Massachusetts Ave, NW
Washington, DC 20036
United States

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