How States Will Target Pregnant People Now that Roe Has Fallen

This story was published in partnership with Slate.

Friday’s Supreme Court decision overturning Roe v. Wade will not only imperil the health of millions of women and pregnant people, but it stands to usher many more of them into the criminal legal system for simply seeking out reproductive health care.

The decision in Dobbs v. Jackson Women’s Health Organization dismantles federal protections in states that have already steeply eroded pregnant people’s abortion access. Nearly half of states have legal restrictions on abortion, and 13 states have “trigger bans”designed to into go effect upon Roe’s reversal; some of these bans include felony charges for providers. Oklahoma and Texas have both passed laws ahead of the court’s decision today that allow private citizens to sue anyone who seeks an abortion after six weeks or anyone who provides abortion care. On Tuesday, Louisiana enacted two pieces of legislation that ban most abortions—including in cases of rape and incest—and criminalize abortion providers.

Even before Roe was overturned, state-level anti-abortion laws had major consequences for pregnant people. After Texas enacted S.B. 8, the six week abortion ban with a novel enforcement mechanism that deputizes citizens to sue anyone who aids or abets an abortion, a group of researchers looked into the law’s effects on reproductive care for 20 Texans with medically complex pregnancies. The study, which was published this week in the New England Journal of Medicine, found that the confusing and threatening legal landscape created by the law had “a chilling effect on a broad range of health care professionals, adversely affecting patient care and endangering people’s lives.” Some clinicians feared they could not counsel patients on abortion services or provide information about out-of-state options after tests indicated fetal abnormalities. The doctors also noted several scenarios in which “a patient could have received hospital-based abortion care before SB8 but was now denied that care.”

The Dobbs decision further compounds this pain by offering a framework for establishing personhood rights for fetuses, which opens the door to criminalizing many aspects of pregnancy. “All of us should be worried about a state of affairs where a miscarriage could start to become a crime scene,” said Miriam Krinsky, the executive director of Fair and Just Prosecution, an organization of elected local prosecutors. “Or even extreme laws where a possible extension of the law could mean that use of contraception or in vitro fertilization, or not sufficiently taking care of yourself while you’re pregnant, start to become criminal offenses.” This new legal landscape, she added, is “deeply, deeply troubling.”

“It’s the fact with criminal law in general, that where you’re located, and what type of elected prosecutor is in your jurisdiction, can really change what access to justice looks like for you.”

Much of this trouble will play out at the state and local levels. The final opinion, written by Justice Samuel Alito, sends the issue of abortion access back to the “people and their elected representatives,” setting the stage for a federal abortion ban. But until then, state and local officials will be tasked with deciding how to enforce state-level abortion restrictions. The decision creates a “constitutional earthquake,” Krinsky says, in which “the battleground will inevitably shift to local jurisdictions and states to determine: How is this new landscape going to be applied?”

As a result, “local prosecutors will very much become the gatekeepers and the last line of defense on whether these kinds of very personal choices will find their way into the criminal justice system or not,” Krinsky added. Prosecutors in some jurisdictions have responded by doubling down on their prosecutorial discretion. On Friday, 83 elected prosecutors across the country released a letter committing to not charge people for their reproductive decisions—including progressive prosecutors in red states like Texas, Mississippi, Tennessee, and Georgia. “Criminalizing and prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that,” reads the signed statement released by Fair and Just Prosecution.

But prosecutorial discretion has its limits. Many conservative states have repeatedly preempted local laws in situations such as these, says Rachel Barkow, a law professor at New York University. “While some prosecutors in blue counties have indicated that they do not plan on bringing criminal charges, that may not ultimately provide women much protection because states may decide to allow the state AG to intervene in these local cases and bring charges, even if the DA does not,” Barkow said. “In red states, one could expect those laws to be stringently enforced.”

In many ways, however, this patchwork of prosecution has been the norm for years. Pregnant people in conservative states face criminalization at far higher rates than those in progressive states that support the right to terminate a pregnancy. “It’s the fact with criminal law in general, that where you’re located, and what type of elected prosecutor is in your jurisdiction, can really change what access to justice looks like for you,” said Yveka Pierre, senior litigation counsel for If/When/How, an organization focused on reproductive justice in the legal system that trains public defenders on how to defend clients who are being prosecuted for pregnancy loss outcomes. “We’re seeing these types of prosecutions happening even with Roe in place,” Pierre said. In some cases people are being prosecuted for pregnancy loss even when the law does not support it, Pierre says, which reflects the intensity of the cultural and religious stigma associated with terminating a pregnancy.

Two recent cases, one in Oklahoma and other in Texas, offer a chilling glimpse into the post-Roe future. In April, Lizelle Herrera, a 26-year-old Texan was arrested for an alleged self-induced abortion in the Rio Grande Valley, near the state’s border with Mexico. The Starr County Clerk’s Office indicted Herrera for “intentionally and knowingly caus[ing] the death of an individual” and set her bail at half a million dollars, before ultimately dropping the case. In that case, a health care provider reported the woman to authorities. And in 2021, Brittney Poolaw, 19, was convicted of manslaughter in Oklahoma for miscarrying after she told hospital staff that she had used drugs while pregnant. Women of color like Poolaw, who is Native American, also face criminalization at far higher rates than white women.

In May, a draft version of Alito’s opinion was leaked by Politico, offering state and local officials a dire warning of what was to come. In the weeks before the end of Roe, city governments in states with anti-abortion laws on the books were attempting to limit their enforcement. In late May, for example, Austin City Council Member Chito Vela introduced a measure that would direct law enforcement to make cases involving reproductive health care the lowest-level priority. A similar measure will be voted on in Denton, Texas, next week.

Others are looking for electoral solutions to limit the decision’s fallout. Julie Oliver of Ground Game Texas, a progressive group seeking to organize and mobilize voters, said her group is attempting to put forward a ballot measure that would direct law enforcement to de-emphasize criminal investigations involving reproductive health care in cities across Texas. These mitigation strategies will be an uphill battle. “What we’re trying to do in this specific space with the ballot initiative, it’s like trying to put a band-aid on a gushing wound,” Oliver said. “It’s a patchwork mechanism to address the fascism—I don’t know what to call it other than what it is—that’s coming from state leadership.”

The reality is that with Roe’s demise, state laws will in some cases shift dramatically and quickly, and that people seeking abortion care, as well as legal professionals themselves, might be caught scrambling to adjust to such rapid change. To help aid people in understanding how the new landscape affects their choices, If/When/How offers a confidential legal helpline for people to call and get help understanding the laws in their state. “I think part of the strategy from oppositional forces seems to be kind of generating confusion, and making folks not know what’s going on. So then they do nothing, right?” Pierre said. “Nobody should not have the abortion that they need or want because they’re confused about what the law is.”

As the fallout of the Dobbs decision takes effect across the country, many legal experts and reproductive justice advocates have noted the shocking disparities that will follow. Poolaw’s and Herrera’s cases illustrate that criminal penalties are disproportionately borne by people with the least resources. And on Friday, Attorney General Merrick Garland gave credence to these claims. The consequences of eliminating the right to an abortion “will be greatly disproportionate in its effect—with the greatest burdens felt by people of color and those of limited financial means,” he wrote.

No doubt, reproductive justice advocates have been working to limit these harms for years. “We’ve been saying since the onset,” Zaena Zamora, executive director of the Frontera Fund, told Prism’s Tina Vásquez in April, “every time you pass any type of abortion restriction, it’s going to affect—first and foremost—low-income people, people of color, and people [from] marginalized communities.”