Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

Supreme Court briefSep 17, 2021

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Text

No. 19-1392

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------THOMAS E. DOBBS, M.D., M.P.H., in his official

capacity as State Health Officer of the

Mississippi Department of Health, et al.,

Petitioners,

JACKSON WOMEN’S HEALTH ORGANIZATION, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF EXPERTS, RESEARCHERS, AND

ADVOCATES OPPOSING THE CRIMINALIZATION

OF PEOPLE WHO HAVE ABORTIONS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------PAUL J. LAWRENCE

JESSICA A. SKELTON

ALANNA PETERSON

PACIFICA LAW GROUP LLP

1191 Second Avenue,

Suite 2000

Seattle, WA 98101

(206) 245-1700

FARAH DIAZ-TELLO*

SARA L. AINSWORTH

YVEKA PIERRE

IF/WHEN/HOW: LAWYERING

FOR REPRODUCTIVE JUSTICE

1714 Franklin Street,

#100-393

Oakland, CA 94612

(347) 974-7337

farah@ifwhenhow.org

Counsel for Amici Curiae

*Counsel of Record

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...........................

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................................

ARGUMENT ...........................................................

II.

When Formal Channels to Abortion Are

Unavailable or Inaccessible, People End

Their Own Pregnancies .............................

A. People in the U.S. Self-Manage Abortions, and Will Continue to Do So .........

B. People Turn to Pills as a Safe Option

for Self-Managed Abortion ..................

People Who End Their Own Pregnancies

Face Legal Risk ......................................... 10

A. Where Abortion Is Banned, People Who

End Their Pregnancies Are Criminalized....................................................... 11

B. Prosecutors in the U.S. Already Target

People for Self-Managed Abortion, Despite Longstanding Prohibitions ......... 13

III.

Abortion Bans Exacerbate the Risk That

People Will Be Criminalized for SelfManaging Abortions .................................. 18

A. Stigma Leads to Discrimination in the

Legal System ....................................... 18

B. Abortion Stigma Negatively Influences

Legal System Responses to People Who

Have Abortions ..................................... 20

TABLE OF CONTENTS—Continued

Page

C. Abortion Stigma Leads to Pervasive

Discriminatory Prosecutions in the

U.S........................................................ 22

IV.

Criminalization of People Who End Their

Pregnancies Irrevocably Harms Their

Health and Well-Being, Violating Their

Human Rights ........................................... 26

A. Criminalizing People for Ending Pregnancies Violates Their Right to Health

by Deterring Them from Seeking

Healthcare ........................................... 27

B. Criminal Investigations and Prosecutions Following Abortion or Pregnancy

Loss Are Cruel, Inhuman, and Degrading Treatment ....................................... 31

C. Racial Bias in Law Enforcement Means

That the Harms Related to Criminalization of Abortion and Miscarriages

Are Disproportionately Borne by People of Color ........................................... 34

CONCLUSION..................................................... 36

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Graham v. Florida,

560 U.S. 48 (2010) ...................................................27

Henrie v. Derryberry,

358 F. Supp. 719 (N.D. Okla. 1973) .........................15

Jones v. Rent-A-Ctr., Inc.,

281 F. Supp. 2d 1277 (D. Kan. 2003) ......................21

Lawrence v. Texas,

539 U.S. 558 (2003) .................................................19

McCormack v. Hiedeman,

694 F.3d 1004 (9th Cir. 2012) ...................... 15, 16, 26

Michelson v. United States,

335 U.S. 469 (1948) ........................................... 32, 33

Nichols v. Am. Nat’l Ins. Co.,

154 F.3d 875 (8th Cir. 1998) .............................. 21, 22

Robinson v. California,

370 U.S. 660 (1962) .................................................19

Roe v. Wade,

410 U.S. 113 (1973) ............................................. 3, 14

Tate v. Short,

401 U.S. 395 (1971) .................................................19

Utah v. Strieff,

136 S. Ct. 2056 (2016) .............................................33

Whole Woman’s Health et al. v. Jackson et al.,

No. 21A24, 2021 WL 3910722 (U.S. 2021) ................7

TABLE OF AUTHORITIES—Continued

Page

STATE CASES

Arms v. State,

471 S.W.3d 637 (Ark. 2015) .....................................24

Brock v. Wedincamp,

558 S.E.2d 836 (Ga. Ct. App. 2002).........................21

Bynum v. State,

546 S.W.3d 533 (Ark. Ct. App. 2018)................. 16, 21

Commonwealth v. Pugh,

969 N.E.2d 672 (Mass. 2012) ..................................23

Ex parte Ankrom & Kimbrough,

152 So. 3d 397 (Ala. 2013) .......................................24

Ex parte Hicks,

153 So. 3d 53 (Ala. 2014).........................................23

Garcia v. Providence Med. Ctr.,

806 P.2d 766 (Wash. Ct. App. 1991) ........................21

Hillman v. State,

503 S.E.2d 610 (Ga. Ct. App. 1998).........................14

Hudson v. State,

745 So. 2d 1014 (Fla. Dist. Ct. App. 1999) ..............21

Kirk v. Wash. State Univ.,

746 P.2d 285 (Wash. 1987) ......................................21

Marquez v. State,

No. A-11925, 2019 WL 211490

(Alaska Ct. App. Jan. 16, 2019)...............................21

Patel v. State,

60 N.E.3d 1041 (Ind. Ct. App. 2016) .......................16

TABLE OF AUTHORITIES—Continued

Page

People v. Jorgensen,

41 N.E.3d 778 (N.Y. 2015) .......................................24

Shuai v. State,

966 N.E.2d 619 (Ind. Ct. App. 2012) .......................23

State v. Ashley,

701 So. 2d 338 (Fla. 1997) .......................................14

State v. Barnett,

437 P.2d 821 (Or. 1968) ...........................................14

State v. Carey,

56 A. 632 (Conn. 1904) ............................................14

State v. Green,

474 P.3d 886 (Okla. Crim. App. 2020).....................24

State v. Louk,

786 S.E.2d 219 (W. Va. 2016) ..................................24

State v. Stegall,

828 N.W.2d 526 (N.D. 2013) ....................................24

Whitner v. State,

492 S.E.2d 777 (S.C. 1997) ......................................24

STATE STATUTES

Ala. Code § 13A-6-1 ....................................................24

H.B. 31, 151st Gen. Assem. (Del. 2021) ......................15

S.B. 240, Reg. Sess. (N.Y. 2019) ..................................15

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Abigail R. A. Aiken et al., Demand for Self-Managed Medication Abortion Through an Online

Telemedicine Service in the United States, 110

Am. J. Pub. Health 90 (2020) ................................ 6, 7

Abigail R. A. Aiken et al., Demand for Self-Managed Online Telemedicine Abortion in the

United States During the Coronavirus Disease

2019 (COVID-19) Pandemic, 136 Obstetrics

and Gynecology 835 (2020) .......................................6

Abigail R. A. Aiken et al., Factors Associated

with Use of an Online Telemedicine Service

to Access Self-managed Medical Abortion in

the US, 4 JAMA Network Open e2111852

(2021), https://jamanetwork.com/journals/jam

anetworkopen/fullarticle/2780272 ........................ 6, 7

Agrupación Ciudadana por la Despenalización

del Aborto en El Salvador, Del Hospital a la

Cárcel: Consecuencias para las Mujeres por la

Penalización, Sin Excepciones, de la Interrupción del embarazo en El Salvador 1998-2019

(3d ed. 2019) https://agrupacionciudadana.org/

download/del-hospital-a-la-carcel-tercera-edicion .......12

Am. Bar Ass’n, Resolution 107A (Feb. 22, 2021),

https://www.americanbar.org/content/dam/aba/

directories/policy/midyear-2021/107a-midyear2021.pdf ...................................................................17

vii

TABLE OF AUTHORITIES—Continued

Page

Am. Coll. of Obstetricians & Gynecologists,

Decriminalization of Self-Induced Abortion:

Position Statement (Dec. 2017), https://

www.acog.org/clinical-information/policy-andposition-statements/position-statements/2017/

decriminalization-of-self-induced-abortion ............30

Am. Med. Ass’n, Oppose the Criminalization of

Self-Induced Abortion H-5.980 (2018), http://

policysearch.ama-assn.org/policyfinder/detail/

abortion?uri=%2FAMADoc%2FHOD.xml-H-5.

980.xml ....................................................................30

Amnesty Int’l, On the Brink of Death: Violence

Against Women and the Abortion Ban in El

Salvador (2014), https://www.amnesty.org/en/

wp-content/uploads/2021/06/amr290032014en.

pdf ............................................................................11

Amnesty Int’l, The Total Abortion Ban in Nicaragua (2009), https://www.amnestyusa.org/pdfs/

amr430012009en.pdf ..............................................12

Amy Gastelum, Purvi Patel Faces 20 Years in

Prison for Feticide and Child Neglect, The

World (Mar. 31, 2015), https://www.pri.org/

stories/2015-03-30/purvi-patel-faces-20-yearsprison-feticide-and-child-neglect ............................32

Anand Grover, Interim Report of the Special

Rapporteur on the Right of Everyone to the

Enjoyment of the Highest Attainable Standard of Physical and Mental Health, U.N. Doc.

A/66/254 (Aug. 3, 2011) ...........................................28

viii

TABLE OF AUTHORITIES—Continued

Page

Anuradha Kumar et al., Conceptualising Abortion Stigma, 11 Culture, Health & Sexuality

625 (2009) ................................................................20

Ashley B. Batastini et al., Mental Illness in the

Eyes of the Law: Examining Perceptions of

Stigma Among Judges and Attorneys, 24 Psychol., Crime & L. 673 (2018) ...................................19

Ashley Nellis, The Color of Justice: Racial and

Ethnic Disparity in State Prisons, The Sentencing Project (Jun. 14, 2016), https://www.

sentencingproject.org/publications/color-ofjustice-racial-and-ethnic-disparity-in-stateprisons/ ....................................................................35

Bela Ganatra et al., Global, Regional, and Subregional Classification of Abortions by Safety,

2010–14: Estimates from a Bayesian Hierarchical Model, 390 Lancet 2372 (2017) ....................10

Comm. on Elimination of Racial Discrimination,

General Recommendation No. 25, U.N. Doc.

A/55/18 (2000) .........................................................35

Comm. on Elimination of Racial Discrimination,

General Recommendation No. 36, U.N. Doc.

CERD/C/GC/36 (Dec. 17, 2020) ...............................34

Comm. on Elimination of Racial Discrimination,

General Recommendation No. 31, U.N. Doc.

A/60/18 (2005–2006) ...............................................34

TABLE OF AUTHORITIES—Continued

Page

Daniel Grossman et al., Research Brief: Knowledge, Opinion and Experience Related to

Abortion Self-Induction in Texas, Tex. Pol’y

Evaluation Project (Nov. 17, 2015), http://

liberalarts.utexas.edu/txpep/_files/pdf/TxPEPResearch-Brief-KnowledgeOpinionExperience.

pdf ..............................................................................7

Ed Pilkington, Indiana Prosecuting Chinese

Woman for Suicide Attempt That Killed Her

Foetus, The Guardian (May 30, 2012), https://

www.theguardian.com/world/2012/may/30/

indiana-prosecuting-chinese-woman-suicidefoetus .......................................................................32

Farah Diaz-Tello et al., Fulfilling Roe’s Promise:

2019 Update (2019), http://bit.ly/2Wu2F6m...........14

Farah Diaz-Tello, Roe Remains for Now . . .

Will it Be Enough?, Human Rights (Sept. 7,

2020), https://www.americanbar.org/groups/crsj/

publications/human_rights_magazine_home/

health-matters-in-elections/roe-remains-fornow-will-it-be-enough/ ............................................22

Gillian Kane, When Abortion is a Crime: Rwanda

(2015), https://www.ipas.org/wp-content/uploads/

2020/06/CRMRWD2E15-WhenAbortionIsa

CrimeRwanda.pdf ...................................................13

Global Comm’n on Drug Pol’y, The World Drug

Perception Problem (2017), http://www.

globalcommissionondrugs.org/wp-content/uploads/

2018/01/GCDP-Report-2017_PerceptionsENGLISH.pdf ..........................................................18

TABLE OF AUTHORITIES—Continued

Page

Heidi Moseson et al., Self-Managed Abortion: A

Systematic Scoping Review, UCSF (Nov. 4,

2019), http://escholarship.org/uc/item/1mj5832t .... 5, 8

Human Rights Comm., Gen. Comment No. 36

(2018) on the Right to Life (art. 6), U.N. Doc.

CCPR/C/GC/36 (Oct. 30, 2018) ...............................29

Human Rights Watch, Nicaragua: Abortion Ban

Threatens Health and Lives (Jul. 31, 2017),

https://www.hrw.org/news/2017/07/31/nicaraguaabortion-ban-threatens-health-and-lives ...............12

Int’l Conference on Population and Development

Programme of Action, https://www.unfpa.org/

sites/default/files/pub-pdf/programme_of_action_

Web%20ENGLISH.pdf (2014) ................................10

Int’l Covenant on Economic, Social & Cultural

Rights, Dec. 16, 1966, 6 I.L.M. 360, 993

U.N.T.S. 3 .................................................................28

Jenna Jerman et al., What are People Looking

for When They Google “Self-Abortion”?, 97

Contraception 510 (2018)..........................................8

Juan E. Méndez, Report of the Special Rapporteur

on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc.

A/HRC/31/57 (Jan. 5, 2016).....................................31

Juan E. Méndez, Report of the Special Rapporteur

on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc.

A/HRC/22/53 (Feb. 1, 2013) .....................................31

TABLE OF AUTHORITIES—Continued

Page

Katherine Kortsmit et al., Abortion Surveillance—United States, 2018, 69 MMWR Surveill. Summ. 1 (2020), https://www.cdc.gov/

mmwr/volumes/69/ss/pdfs/ss6907a1-H.pdf ............36

Kevin Hayes, Did Christine Taylor Take Abortion into Her Own Hands?, CBS News

(Mar. 2, 2010), http://www.cbsnews.com/news/

did-christine-taylor-take-abortion-into-her-ownhands .......................................................................23

Kim Murphy, Idaho Woman’s Case Marks a

Key Abortion Challenge, L.A. Times (Jun. 16,

2012), http://www.latimes.com/archives/la-xpm2012-jun-16-la-na-idaho-abortion-20120617story.html ................................................................33

Kinga Jelinska & Susan Yanow, Putting Abortion Pills into Women’s Hands: Realizing the

Full Potential of Medical Abortion, 97 Contraception 86 (2018) ................................................. 9, 10

Lakota People’s Law Project, Native Lives

Matter 6 (Feb. 2015), https://s3-us-west1.amazonaws.com/lakota-peoples-law/uploads/

Native-Lives-Matter-PDF.pdf .................................35

Lauren Ralph et al., Prevalence of Self-Managed

Abortion Among Women of Reproductive Age

in the United States, 3 JAMA Network Open

e2029245 (2020), https://jamanetwork.com/

journals/jamanetworkopen/fullarticle/2774320 ........6

xii

TABLE OF AUTHORITIES—Continued

Page

Lauren Rankin, How An Online Search for

Abortion Pills Landed This Woman in Jail,

FastCompany (Feb. 26, 2020), https://www.

fastcompany.com/90468030/how-an-onlinesearch-for-abortion-pills-landed-this-womanin-jail ................................................................. 17, 25

Lynn M. Paltrow & Jeanne Flavin, Arrests of

and Forced Interventions on Pregnant Women

in the United States, 1973-2005: Implications

for Women’s Legal Status and Public Health,

38 J. Health Pol., Pol’y & L. 299 (2013) ...... 22, 35, 36

M. Antonia Biggs et al., Perceived Abortion

Stigma and Psychological Well-Being Over

Five Years After Receiving or Being Denied

Abortion, 15 PLoS ONE No. 1 (2020) .....................20

Magdalena Sepúlveda, Report of the Special

Rapporteur on Extreme Poverty and Human

Rights, U.N. Doc. A/66/265 (Aug. 4, 2011)...............19

Mariana Prandini-Assis & Sara Larrea, Why

Self-Managed Abortion Is So Much More Than

a Provisional Solution for Times of Pandemic,

28 Sexual & Reprod. Health Matters 37

(2020) .......................................................................10

Megan Menchaca & María Méndez, Confusion,

Uncertainty: Options Narrow as Texas Abortion Law Takes Hold, Austin American-Statesman (Sept. 3, 2021) https://www.statesman.

com/story/news/2021/09/03/texas-abortion-lawtexans-look-out-state-options-narrow/5698810001/ .........8

xiii

TABLE OF AUTHORITIES—Continued

Page

Melissa J. Chen & Mitchell D. Creinin, Mifepristone with Buccal Misoprostol for Medical

Abortion: A Systematic Review, 126 Obstetrics

& Gynecology 12 (2015) ............................................8

Nev. Att’y Gen. Op. No. 114 (Feb. 2, 1973),

https://ag.nv.gov/uploadedFiles/agnvgov/Content/

Publications/opinions/ 1973_AGO.pdf ....................15

N.Y. Times Ed. Bd., How My Stillbirth Became

a Crime, N.Y. Times (Dec. 28, 2018), https://

www.nytimes.com/interactive/2018/12/28/opinion/

stillborn-murder-charge.html .................................16

N.Y. Times Ed. Bd., The Mothers Society Condemns, N.Y. Times (Dec. 28, 2018), http://

www.nytimes.com/interactive/2018/12/28/opinion/

abortion-law-poverty.html ......................................33

Nat’l Acads. of Scis., Eng’g, & Med., The Safety

and Quality of Abortion Care in the United

States (Nat’l Acads. Press 2018) ...............................9

Nat’l Ass’n of Criminal Defense Lawyers, Abortion in America: How Legislative Overreach Is

Turning Reproductive Rights into Criminal

Wrongs (2021), www.NACDL.org/Abortion

CrimReport..............................................................25

Nick Cumming-Bruce, U.N. to Form Panel to Investigate Systemic Racism in Policing, N.Y.

Times (Jul. 13, 2021), https://www.nytimes.com/

2021/07/13/world/united-nations-panel-humanrights-council-racism.html .....................................34

xiv

TABLE OF AUTHORITIES—Continued

Page

Nina Martin, A Stillborn Child, A Charge of

Murder and the Disputed Case Law on

‘Fetal Harm,’ ProPublica (Mar. 18, 2014),

https://www.propublica.org/article/stillbornchild-charge-of-murder-and-disputed-case-lawon-fetal-harm ..........................................................25

NYPD: Manhattan Woman Charged with Performing Self-Abortion, CBS N.Y. (Dec. 1,

2011), http://cbsloc.al/2pxAnrZ ...............................15

Official: 5-Month-Old Fetus Lived 30 Minutes

After ‘Abortion Pill’ Delivery, WALB News

(Jun. 8, 2015), https://www.walb.com/story/

29263746/official-5-month-old-fetus-lived-30minutes-after-abortion-pill-delivery/ ......................32

Patty Skuster, How Laws Fail the Promise of

Medical Abortion: A Global Look, 18 Geo. J.

Gender & L. 379 (2017) ..................................... 11, 13

Paul Blumenthal et al., Providing Medical Abortion in Low-Resource Settings: An Introductory Guidebook (Hillary Bracken ed., Gynuity

Health Projects 2d ed. 2009) .....................................9

Paula Abrams, Abortion Stigma: The Legacy of

Casey, 35 Women’s Rts. L. Rep. 299 (2014) ............20

Paula Abrams, The Scarlet Letter: The Supreme

Court and the Language of Abortion Stigma,

19 Mich. J. Gender & L. 293 (2013) ........................20

TABLE OF AUTHORITIES—Continued

Page

Physicians for Reprod. Health, Self-Managed

Abortion Statement (Nov. 2018), http://prh.org/

wp-content/uploads/2018/12/Self-ManagedAbortion-Position-Statement-2018.pdf ..................30

Press Release, Dougherty Cty. Dist. Attorney’s

Office (Jun. 10, 2015) ..............................................17

Rebecca J. Cook, Stigmatized Meanings of Criminal Abortion Law, in Abortion Law in Transnational Perspectives: Cases and Controversies

(Rebecca J. Cook et al. eds., 2014) ..........................20

Rebecca Stone, Pregnant Women and Substance

Use: Fear, Stigma, and Barriers to Care, 3

Health & Just. 1 (2015) ...........................................29

Rick Brundrett, Woman’s Abortion is Unique

S.C. Case, The State (Columbia, S.C.), May 1,

2005 .........................................................................15

Robert Hart, Searches for Self-Induced Abortions

Surge After SCOTUS Accepts Mississippi’s

Roe v. Wade Challenge, Forbes (May 18, 2021)

https://www.forbes.com/sites/roberthart/2021/

05/18/searches-for-self-induced-abortions-surgeafter-scotus-accepts-mississippis-roe-v-wadechallenge/?sh=470ce7d60a0a ....................................7

Sara Rogel: El Salvador Frees Woman Accused

of Abortion, BBC News (Jun. 8, 2021),

https://www.bbc.com/news/world-latin-america57384064 .................................................................12

Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006) ............................27

xvi

TABLE OF AUTHORITIES—Continued

Page

Sarah Fowler, Judge Dismisses Rennie Gibb’s

Depraved Heart Murder Case, The Dispatch

(Apr. 3, 2014), https://cdispatch.com/news/201404-03/judge-dismisses-rennie-gibbs-depravedheart-murder-case/ ..................................................25

Scott Burris, Stigma and the Law, 367 Lancet

529 (2006) ................................................................18

Stacey Hannem, Theorizing Stigma and the Politics of Resistance: Symbolic and Structural

Stigma in Everyday Life, in Stigma Revisited:

Implications of the Mark (Stacey Hannem &

Chris Bruckert eds., U. Ottawa Press 2012) ..........18

Stephen Koester et al., Why Are Some People

Who Have Received Overdose Education and

Naloxone Reticent to Call Emergency Medical

Services in the Event of Overdose?, 48 Int’l J.

Drug Pol’y 115 (2017) ..............................................29

Tracy A. Weitz & Katrina Kimport, The Discursive Production of Abortion Stigma in the

Texas Ultrasound Viewing Law, 30 Berkeley

J. Gender L. & Just. 6 (2015) ..................................20

U.N. Comm. Against Torture, Conclusions and

Recommendations: Chile, U.N. Doc. CAT/C/

CR/32/5 (Jun. 14, 2004) ...........................................36

U.N. Comm. Against Torture, Conclusions and

Recommendations: Peru, U.N. Doc. CAT/C/PER/

CO/4 (Jul. 25, 2006) .................................................31

xvii

TABLE OF AUTHORITIES—Continued

Page

U.N. Comm. on Economic, Social and Cultural

Rights, Gen. Comment No. 22 (2016) on the

Right to Sexual & Reproductive Health (art.

12), U.N. Doc. E/C.12/GC/22 (May 2, 2016) ............28

U.N. Working Group on Discrimination Against

Women, Report of the Working Group on the

Issue of Discrimination Against Women in

Law and in Practice, U.N. Doc. A/HRC/32/44

(Apr. 8, 2016) ......................................... 26, 27, 28, 29

U.S. Census Bureau, ACS Demographic and

Housing Estimates (2018), https://data.census.gov/

cedsci/table?g=0400000US28&tid=ACSDP1Y

2018.DP05&hidePreview=true ...............................36

U.S. Dep’t of Justice, Civil Rights Division, Best

Practices Guide to Reform HIV-Specific

Criminal Laws to Align with Scientifically

Supported Factors (2014), https://www.

hivlawandpolicy.org/sites/default/files/DOj-HIVCriminal-Law-Best-Practices-Guide.pdf ................19

Ushma D. Upadhyay et al., Safety and Efficacy

of Telehealth Medication Abortions in the US

During the COVID-19 Pandemic, 4 JAMA

Network Open e2122320 (2021), https://

jamanetwork.com/journals/jamanetworkopen/

fullarticle/2783451 ....................................................9

xviii

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Vanessa Romo, Woman Indicted for Manslaughter

After Death of Her Fetus, May Avoid Prosecution, NPR (Jun. 28, 2019), https://www.npr.org/

2019/06/28/737005113/woman-indicted-formanslaughter-after-death-of-her-fetus-mayavoid-prosecution ....................................................23

Woman Released After Being Arrested for Allegedly

Inducing Miscarriage, Freezing Fetus, 2News

(July 16, 2020), https://www.ktvn.com/story/

42379251/carson-city-sheriffs-arrest-womanfor-allegedly-freezing-fetus-after-miscarriage .......16

World Health Org., Medical Management of

Abortion (2018), http://apps.who.int/iris/bitstream/

handle/10665/278968/9789241550406-eng.pdf .......10

INTEREST OF AMICI CURIAE1

Amici are healthcare professionals, researchers,

attorneys, and advocates for sexual and reproductive

health, rights, and justice. They work to eliminate

stigma, defend rights, and ensure access to healthcare.

Amici are united in opposition to the criminalization of

people who end their own pregnancies or experience a

pregnancy loss.

If/When/How: Lawyering for Reproductive

Justice is a non-profit organization that works to

transform the law and the legal profession in service of

reproductive justice. IWH defends individuals prosecuted for self-managing abortions.

Project SANA (Self-Managed Abortion Needs

Assessment) is an interdisciplinary research group

examining the motivations and experiences of people

who self-manage abortion in the U.S. Project SANA’s

research demonstrates that safe self-management is a

critical option for people who are unable to access abortion within the formal healthcare setting, most often

due to restrictive laws.

The Center for Advancing Innovative Policy

is a grassroots policy firm that develops strategies to

advance people’s right to self-determination over their

The parties to this case have each filed blanket consents to

the filing of amicus briefs. No counsel of a party authored this

brief in whole or part, and no person other than Amici or their

counsel made any monetary contribution intended to fund the

preparation or submission of this brief.

bodies and lives, and opposes the criminalization of

people’s pregnancy outcomes.

Collective Power for Reproductive Justice is

a national organization that educates, trains, and inspires new leadership to advance reproductive justice

for all. Collective Power opposes any measure that further limits access to abortion or increases prosecution

or stigmatization of accessing abortion.

Movement for Family Power works to end the

foster system’s policing and punishment of families

and to create a world where the dignity of all families

is valued and supported, and people can seek the

healthcare they need.

National Lawyers Guild is the nation’s oldest

and largest progressive bar association. NLG’s membership has resolved to oppose the criminalization of

people’s reproductive lives.

Plan C is a team of public health advocates, researchers, and activists working toward a world in

which the ability to end an early pregnancy is in the

hands of those who need it.

Positive Women’s Network—USA is a national

membership body of women and transgender people

living with HIV that works to strengthen the strategic

power of all women living with HIV in the U.S. PWN

opposes the criminalization of abortion.

SASS is part of an international non-profit,

Women Help Women, that seeks to expand access to

safe abortion by providing information about selfmanaged abortion.

Amy Allina, M.A., is an expert in U.S. healthcare

rights, access, and coverage, who works to prevent the

criminalization of people who self-manage abortion.

Jamila Perritt, M.D., M.P.H., F.A.C.O.G., is a

physician and public health expert. Banning, restricting, or criminalizing abortion, including self-managed

abortion, harms patients and undermines the patientprovider relationship.

Cari Sietstra, J.D., is an attorney and researcher

who advocates for reproductive health access in countries where abortion is restricted or criminalized.

Ushma Upadhyay, Ph.D., M.P.H., is an Associate Professor at the University of California, San Francisco. Her most recent research study found that facing

multiple barriers to abortion access was associated

with higher likelihood of attempting self-managed

abortion.

---------------------------------♦---------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

Mississippi’s enactment of HB 1510 and request to

overrule Roe v. Wade would place the United States on

a dangerous path. To uphold this ban would permit

states, for the first time in nearly half a century, to ban

pre-viability abortions. Respondents and other amici

have outlined the manifold injuries to health, rights,

and dignity that Mississippians will face if the state

abdicates its responsibility to their well-being by preventing them from accessing abortion care. Amici

submit this brief to urge this Court to consider the additional harms that Mississippians—and others living

in states that follow its lead—may face, directly at the

hands of the state, if they are criminalized when they

address their reproductive healthcare needs on their

own.

Banning abortion creates conditions that lead to

people being criminally punished for ending their

pregnancies, or for merely being suspected of it based

on a reproductive outcome. This is true globally, and

U.S. trends in criminalizing people who end or lose

pregnancies suggest that it will be true here as well.

Criminalization of reproductive outcomes has devastating, even life-threatening, consequences. It prevents people from seeking medical care when they

need it, subjects them to cruel and humiliating investigations in the midst of medical emergencies, and consigns them to stigma and condemnation in their

communities. Worse, the harms of criminalization are

disproportionately borne by people who are already

marginalized due to racism, sexism, and socioeconomic

disadvantage.

---------------------------------♦---------------------------------

ARGUMENT

When Formal Channels to Abortion Are

Unavailable or Inaccessible, People End

Their Own Pregnancies

People who need to end a pregnancy will find a

way to do so. This reality has existed throughout history, and transcends borders, politics, and culture.

Where the law creates barriers to access, people will do

their best to circumnavigate them; where the law bans

abortion in the formal medical system, people will find

ways to self-determine their reproductive lives outside

of that system.2 This is known as “self-managing” abortion: ending one’s own pregnancy, through whatever

means, outside of the formal medical system.

A. People in the U.S. Self-Manage Abortions, and Will Continue to Do So

It is difficult to accurately count how many people3

end their own pregnancies outside the medical system

in the U.S., but research suggests that it commonly

occurs. Between 2018 and 2020, one online service

received more than 57,000 requests—from all fifty

See Heidi Moseson et al., Self-Managed Abortion: A Systematic Scoping Review 3, UCSF (Nov. 4, 2019), http://escholarship.org/

uc/item/1mj5832t (“Regardless of the legal climate, people may seek

alternative models of abortion provision, such as self-managed

abortion, when they cannot or do not want to access facility-based

abortion care.”).

People with a range of gender identities become pregnant.

The risks of criminalization for self-managed abortion apply irrespective of gender identity.

states—for medication to self-manage abortion.4 A

2020 study estimates that 7% of U.S. women will attempt a self-managed abortion.5 The need for stay-athome healthcare, including abortion, only increased

during the COVID-19 pandemic; demand to one online

source for abortion medications increased by 27% in

the month after stay-at-home orders began.6

People who self-manage abortions do so for a variety of reasons. Even when people have access to clinically-managed healthcare, they may self-manage

because of stigma related to the circumstances of the

pregnancy or to having an abortion, to avoid detection

by an abusive partner, or to have a more private experience.7 They may do so for health reasons, such

as avoiding exposure to COVID-19.8 Unsurprisingly,

Abigail R. A. Aiken et al., Factors Associated with Use of an

Online Telemedicine Service to Access Self-managed Medical

Abortion in the US, 4 JAMA Network Open e2111852, at 1 (2021),

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/

2780272.

Lauren Ralph et al., Prevalence of Self-Managed Abortion

Among Women of Reproductive Age in the United States, 3

JAMA Network Open e2029245, at 1, 7–11 (2020), https://jama

network.com/journals/jamanetworkopen/fullarticle/2774320.

Abigail R. A. Aiken et al., Demand for Self-Managed Online

Telemedicine Abortion in the United States During the Coronavirus Disease 2019 (COVID-19) Pandemic, 136 Obstetrics and

Gynecology 835, 835–36 (2020).

See Abigail R. A. Aiken et al., Demand for Self-Managed

Medication Abortion Through an Online Telemedicine Service in the United States, 110 Am. J. Pub. Health 90, 94–95

(2020).

See Aiken et al., supra note 6, at 835, 837.

demand for self-managed abortion is higher in states

with abortion restrictions.9 In Texas, a state that imposed significant barriers on abortion care even prior

to passing Senate Bill 8,10 between 100,000 and

240,000 women of childbearing age have attempted

self-managing an abortion.11 From 2018 to 2020, Mississippi was second only to Louisiana as the state with

the highest rate of inquiries to an online source of selfmanaged abortion medication.12

In fact, Internet searches for terms like “misoprostol” and “medical abortion” grew by more than

5,000% after the announcement that this Court

granted certiorari in this case.13 This suggests that

people are either confused about whether abortion is

See Aiken et al., supra note 7, at 92 (76% of U.S.-based requests came from states that heavily restrict abortion).

See Whole Woman’s Health et al. v. Jackson et al., No.

21A24, 2021 WL 3910722, at *3–4 (U.S. 2021) (Sotomayor, J., dissenting).

Daniel Grossman et al., Research Brief: Knowledge, Opinion and Experience Related to Abortion Self-Induction in Texas,

Tex. Pol’y Evaluation Project (Nov. 17, 2015), http://liberalarts.

utexas.edu/txpep/_files/pdf/TxPEP-Research-Brief-KnowledgeOpinionExperience.pdf.

Aiken et al., supra note 4, at 1.

Robert Hart, Searches for Self-Induced Abortions Surge After SCOTUS Accepts Mississippi’s Roe v. Wade Challenge, Forbes

(May 18, 2021), https://www.forbes.com/sites/roberthart/2021/05/

18/searches-for-self-induced-abortions-surge-after-scotus-acceptsmississippis-roe-v-wade-challenge/?sh=470ce7d60a0a.

legal,14 or preparing for an anticipated decrease in access by finding self-managed alternatives.15

B. People Turn to Pills as a Safe Option

for Self-Managed Abortion

In a previous era, increasing rates of self-managed

abortion would have been cause for alarm about health

risks. Although unsafe methods remain a possibility,

self-managed abortion for the most part no longer

means the dangers of an earlier time.16 Instead, people

in the U.S. who self-manage abortion frequently do so

by purchasing misoprostol and mifepristone from

online pharmacies outside the U.S.—the same pills

they would receive from a clinic. These medications

have been in use in the U.S. for more than twenty

years. Abortion pills are effective, successfully ending

a pregnancy more than 95% of the time.17 And they

are safe: side effects are comparable to those of a

See Jenna Jerman et al., What are People Looking for

When They Google “Self-Abortion”?, 97 Contraception 510, 513

tbl. 3 (2018) (one-third of people searching for information about

self-managed abortion were unsure about the legality of abortion

in their states or thought it was illegal).

See, e.g., Megan Menchaca & María Méndez, Confusion,

Uncertainty: Options Narrow as Texas Abortion Law Takes

Hold, Austin American-Statesman (Sept. 3, 2021), https://www.

statesman.com/story/news/2021/09/03/texas-abortion-law-texanslook-out-state-options-narrow/5698810001/.

See Moseson et al., supra note 2, at 3 (discussing methods

used to end pregnancies outside of medical setting).

See Melissa J. Chen & Mitchell D. Creinin, Mifepristone

with Buccal Misoprostol for Medical Abortion: A Systematic Review, 126 Obstetrics & Gynecology 12, 12–13 (2015).

miscarriage,18 and are generally treatable in an outpatient setting.19

Recent experience during the COVID-19 pandemic—

which stymied access to most routine medical care—

demonstrates that these medications can be used

safely with less medical supervision than previously

believed. One U.S. study found that remote consultation with abortion pills delivered by mail is “feasible,

safe, and efficacious.”20 That study found a 95% efficacy

rate, similar to that of in-person provision of abortion

pills, with only 5% of patients requiring medical care,

and no reports of major complications.21 Currently, the

federal Food and Drug Administration is reevaluating

whether to permanently end its restrictions requiring

in-person dispensation of mifepristone.22

Experience in other countries affirms that abortion pills can be safely used at home, even without a

medical provider.23 This fact has markedly changed the

Nat’l Acads. of Scis., Eng’g, & Med., The Safety and Quality

of Abortion Care in the United States 54 (Nat’l Acads. Press 2018).

Paul Blumenthal et al., Providing Medical Abortion in

Low-Resource Settings: An Introductory Guidebook 5–6 (Hillary

Bracken ed., Gynuity Health Projects 2d ed. 2009).

Ushma D. Upadhyay et al., Safety and Efficacy of Telehealth Medication Abortions in the US During the COVID-19

Pandemic, 4 JAMA Network Open e2122320, at 2 (2021),

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/

2783451.

Id. at 2, tbl. 2.

Id. at 2.

Kinga Jelinska & Susan Yanow, Putting Abortion Pills

into Women’s Hands: Realizing the Full Potential of Medical

global abortion landscape: researchers attribute the

worldwide decrease in mortality associated with selfmanaged abortion to the use of abortion pills.24 Where

people lack access to medically-managed abortion, the

World Health Organization recommends self-administered use of abortion pills as an option, provided people

have “access to a source of accurate information and

to a health-care provider (should one be needed or

wanted at any stage of the process)[.]”25 Unfortunately,

the mitigation of medical risk promised by abortion

pills is undermined by another risk: that of criminal

prosecution for self-managed abortion.

II.

People Who End Their Own Pregnancies

Face Legal Risk

While global maternal mortality due to unsafe

abortion has decreased as a result of the global trend

toward liberalizing access to legal abortion26 and an

Abortion, 97 Contraception 86, 86 (2018); Bela Ganatra et al.,

Global, Regional, and Subregional Classification of Abortions by

Safety, 2010–14: Estimates from a Bayesian Hierarchical Model,

390 Lancet 2372, 2377–79 (2017).

Mariana Prandini-Assis & Sara Larrea, Why Self-Managed

Abortion Is So Much More Than a Provisional Solution for Times

of Pandemic, 28 Sexual & Reprod. Health Matters 37, 38 (2020).

World Health Org., Medical Management of Abortion 29

(2018), http://apps.who.int/iris/bitstream/handle/10665/278968/

9789241550406-eng.pdf.

See Int’l Conference on Population and Development Programme of Action, https://www.unfpa.org/sites/default/files/

pub-pdf/programme_of_action_Web%20ENGLISH.pdf (2014). In

1994, 179 nations, including the U.S., joined the Programme of

increased use of safer methods to self-manage,27 where

abortion is banned, or where full decriminalization has

not been achieved, people risk criminalization to end

unwanted pregnancies.

A. Where Abortion Is Banned, People Who

End Their Pregnancies Are Criminalized

Global trends of criminalizing the self-management of abortion provide a preview of what likely

would happen in the event of a U.S. abortion ban. Laws

imposing penalties for abortions performed outside

certain parameters inevitably lead to prosecutions for

abortions, or even for spontaneous pregnancy losses.28

Only El Salvador and Nicaragua have in recent

decades imposed total abortion bans, moving against

the trend of liberalization of abortion laws. In 1998,

El Salvador banned abortion in all circumstances,

criminalizing people who have abortions and anyone

who assists them.29 From 2000 to 2019, 181 women

Action, committing to advance reproductive health by preventing

unsafe abortion.

Patty Skuster, How Laws Fail the Promise of Medical

Abortion: A Global Look, 18 Geo. J. Gender & L. 379, 383–84

(2017).

See id. at 386–90.

Amnesty Int’l, On the Brink of Death: Violence Against

Women and the Abortion Ban in El Salvador 10–11 (2014), https://

www.amnesty.org/en/wp-content/uploads/2021/06amr290032014

en.pdf.

were prosecuted for having lost or ended a pregnancy.30

Many were charged with homicide crimes, carrying up

to fifty-year sentences. Some were prosecuted after losing pregnancies to accidents, illnesses, or unknown

causes.31 Nicaragua similarly provides no option for legal abortion; a 2008 law prescribes prison sentences of

up to two years for anyone who consents to or seeks an

abortion.32 Healthcare providers report that this leads

to pregnant individuals avoiding care for fear of being

reported for abortion.33 The Nicaraguan government

does not publish data on abortion criminalization, but

a 2016 report found evidence that 290 people were accused or detained between 2003 and 2013.34

Criminalization of people who end their own pregnancies is not limited to countries where abortion is

banned. It remains a possibility anywhere that abortions occurring outside legal parameters lead to criminal penalties, even in countries that have undertaken

Agrupación Ciudadana por la Despenalización del Aborto

en El Salvador, Del Hospital a la Cárcel: Consecuencias para las

Mujeres por la Penalización, Sin Excepciones, de la Interrupción

del embarazo en El Salvador 1998-2019 (3d ed. 2019) https://

agrupacionciudadana.org/download/del-hospital-a-la-carcel-terceraedicion.

Sara Rogel: El Salvador Frees Woman Accused of Abortion,

BBC News (Jun. 8, 2021), https://www.bbc.com/news/world-latinamerica-57384064.

Amnesty Int’l, The Total Abortion Ban in Nicaragua 7, 15

(2009), https://www.amnestyusa.org/pdfs/amr430012009en.pdf.

Id. at 21.

Human Rights Watch, Nicaragua: Abortion Ban Threatens

Health and Lives (Jul. 31, 2017), https://www.hrw.org/news/

2017/07/31/nicaragua-abortion-ban-threatens-health-and-lives.

major reforms to expand abortion access.35 For instance, in Rwanda, in spite of a 2012 reform permitting

abortion in cases of sexual assault or risk to life or

health,36 a person who wants an abortion must seek

approval of two doctors—but there is only one doctor

per 17,000 people in the country, leading many people

to self-manage.37 As a result, a study conducted in

2013-2014 found that as many as one in four women in

prison were incarcerated for self-managing an abortion.38 Many were victims of rape who would have qualified for a legal abortion had they been able to apply

for one.39

But the trend of criminalization of people who

have abortions in spite of legal protections for reproductive rights is not limited to foreign countries—it

happens in the U.S. as well.

B. Prosecutors in the U.S. Already Target

People for Self-Managed Abortion, Despite Longstanding Prohibitions

Even prior to this Court’s articulation of constitutional protections for the right to seek an abortion, “the

pregnant woman herself could not be prosecuted for

See Skuster, supra note 27, at 386–90.

Gillian Kane, When Abortion is a Crime: Rwanda 1 (2015),

https://www.ipas.org/wp-content/uploads/2020/06/CRMRWD2E15WhenAbortionIsaCrimeRwanda.pdf.

Id. at 1, 12.

Id. at 9–10.

Id. at 12.

self-abortion or for cooperating in an abortion performed upon her by another.” Roe v. Wade, 410 U.S. 113,

151 (1973); see also State v. Carey, 56 A. 632, 636 (Conn.

1904) (“an operation on the body of a woman quick

with child, with intent thereby to cause her miscarriage, was an indictable offense, but it was not an offense in her to so treat her own body”); Hillman v.

State, 503 S.E.2d 610, 612–13 (Ga. Ct. App. 1998) (noting that the person who had an abortion was neither

principal nor accomplice); State v. Barnett, 437 P.2d

821, 822 (Or. 1968) (prohibited acts are “performed

upon the mother rather than any action taken by her’’).

This understanding has held to the modern era. When

Florida’s Supreme Court considered whether a teenager could be charged with criminal abortion as the

predicate offense for a felony murder charge, it called

the principle that pregnant people cannot be charged

with a crime against their own fetuses a “centuries-old

principle of the common law [ . . . ] grounded in the

wisdom of experience[.]” State v. Ashley, 701 So. 2d 338,

342 (Fla. 1997). Yet, since 2000, at least 21 women have

been arrested for allegedly self-managing an abortion

or helping a loved one do so.40

Only a small number of U.S. women criminalized

for self-managed abortion in the 21st century were

prosecuted under laws purporting to criminalize

ending one’s own pregnancy. In 2004, a 22-year-old

South Carolina immigrant mother was charged

with performing an unlawful abortion for allegedly

Farah Diaz-Tello et al., Fulfilling Roe’s Promise: 2019 Update 1 (2019), http://bit.ly/2Wu2F6m.

terminating her pregnancy with abortion pills mailed

from Mexico.41 She served four months in jail.42 The

statute under which she was charged is the only remaining such law in the U.S. that has not been held

unconstitutional by a court, repealed by a legislature,

or otherwise deemed unenforceable. In 2019, New York

repealed its criminal self-abortion law. S.B. 240, Reg.

Sess. § 5 (N.Y. 2019). Delaware followed suit this summer. See H.B. 31, 151st Gen. Assem. (Del. 2021). Only

three other states—Idaho, Nevada, and Oklahoma—

retain laws that purport to criminalize people who

self-manage abortion; all of these outlier statutes

have been deemed unconstitutional by a court, see

McCormack v. Hiedeman, 694 F.3d 1004, 1015–18 (9th

Cir. 2012) and Henrie v. Derryberry, 358 F. Supp. 719,

724–25 (N.D. Okla. 1973), or other authoritative interpretation of law. See Nev. Att’y Gen. Op. No. 114 at

16–17 (Feb. 2, 1973), https://ag.nv.gov/uploadedFiles/

agnvgov/Content/Publications/opinions/1973_AGO.pdf.

Unfortunately, those legal pronouncements either

came too late or were ignored, in favor of subjecting

people to arrest, prosecution, and in some cases, incarceration, for alleged self-managed abortion. In 2011,

New York prosecutors charged a 20-year-old immigrant with “first-degree self-abortion” for allegedly

drinking an herbal tea to terminate her pregnancy.43

Rick Brundrett, Woman’s Abortion is Unique S.C. Case,

The State (Columbia, S.C.), May 1, 2005.

Id.

NYPD: Manhattan Woman Charged with Performing SelfAbortion, CBS N.Y. (Dec. 1, 2011), http://cbsloc.al/2pxAnrZ.

In Idaho, a low-income single mother of three took pills

purchased from an online pharmacy to end her pregnancy, and was subsequently arrested and charged

with “criminal abortion”—a prosecution held unconstitutional in 2012 by the Ninth Circuit Court of Appeals.

McCormack, 694 F.3d at 1015–18. In 2020, a Nevada

mother of a toddler was arrested for allegedly taking

“drugs . . . to miscarry her pregnancy.”44

But even in the states that lack any statutory authority, prosecutors have attempted to punish people

believed to have ended a pregnancy by turning to inapposite or arcane criminal statutes. See, e.g., Patel v.

State, 60 N.E.3d 1041, 1045–46, 1056–62 (Ind. Ct. App.

2016) (overturning Purvi Patel’s conviction for “feticide,” a crime intended to protect pregnant people from

violence, for taking abortion pills to end her own pregnancy); Bynum v. State, 546 S.W.3d 533, 536, 541–43

(Ark. Ct. App. 2018) (reversing evidentiary rulings in

Anne Bynum’s conviction for “concealing a birth,” a

17th-century crime for which no other person in Arkansas had been charged since 1944, for using pills to

induce labor but experiencing a stillbirth).45 When

criminal codes contain no clear path to prosecution,

Woman Released After Being Arrested for Allegedly Inducing

Miscarriage, Freezing Fetus, 2News (July 16, 2020), https://www.

ktvn.com/story/42379251/carson-city-sheriffs-arrest-woman-forallegedly-freezing-fetus-after-miscarriage.

See also N.Y. Times Ed. Bd., How My Stillbirth Became

a Crime, N.Y. Times (Dec. 28, 2018), https://www.nytimes.com/

interactive/2018/12/28/opinion/stillborn-murder-charge.html.

prosecutors have ignored facts and law and charged

women with murder.46

In 2021, in response to these prosecutorial abuses,

the American Bar Association (ABA) resolved to “oppose[ ] the criminal prosecution of any person for having an abortion, or for experiencing a miscarriage,

stillbirth, or other pregnancy outcome[.]”47 The ABA’s

Resolution grounds its opposition in the understanding that prosecutions outside the bounds of statutory

authority undermine constitutional rights and the rule

of law.48 Because, as the ABA recognized, the law does

not typically support these prosecutions, their perpetuation is essentially a manifestation of abortion

stigma.

See Press Release, Dougherty Cty. Dist. Attorney’s Office

(Jun. 10, 2015) (dropping homicide charge against Kenlissia

Jones, who allegedly used abortion pills to induce labor; noting

that Georgia, along with “an overwhelming majority of jurisdictions,” does not criminalize pregnant people for actions related to

their own pregnancies); see also Lauren Rankin, How An Online

Search for Abortion Pills Landed This Woman in Jail, FastCompany

(Feb. 26, 2020), https://www.fastcompany.com/90468030/how-anonline-search-for-abortion-pills-landed-this-woman-in-jail (describing dismissal of second-degree murder charges against Latice

Fisher, a Mississippi woman who had a stillbirth; indictment was

predicated in part on claims that she searched online for abortion

medications during pregnancy).

Am. Bar Ass’n, Resolution 107A (Feb. 22, 2021), https://

www.americanbar.org/content/dam/aba/directories/policy/midyear2021/107a-midyear-2021.pdf.

See id., Report at 7–9.

III. Abortion Bans Exacerbate the Risk That People Will Be Criminalized for Self-Managing

Abortions

Like the vast majority of U.S. abortion codes, HB

1510 does not criminalize people who have abortions.

Instead, the law renders abortion care completely

inaccessible after 15 weeks’ gestation, and creates

confusion about the legality of abortion among Mississippians. Research and common sense dictate that

more people will self-manage abortions if it goes into

effect. In a jurisdiction where existing law has already

deeply stigmatized abortion, arrests are likely to ensue

despite the letter of the law.

A. Stigma Leads to Discrimination in the

Legal System

Stigma arises when society devalues certain populations.49 Because of the legal system’s vast power

over people’s lives, stigma within it results in devastating discrimination.50 This is apparent in the way the

legal system has criminalized people for status, rather

than actions, including people who use drugs,51 have

See Stacey Hannem, Theorizing Stigma and the Politics

of Resistance: Symbolic and Structural Stigma in Everyday Life,

in Stigma Revisited: Implications of the Mark 10–28 (Stacey

Hannem & Chris Bruckert eds., U. Ottawa Press 2012).

See Scott Burris, Stigma and the Law, 367 Lancet 529, 530

(2006).

See, e.g., Global Comm’n on Drug Pol’y, The World Drug

Perception Problem 27–29 (2017), http://www.globalcommissionon

drugs.org/wp-content/uploads/2018/01/GCDP-Report-2017_PerceptionsENGLISH.pdf.

HIV,52 experience mental illness,53 or live in poverty.54

This Court has recognized the relationship between

stigma and discriminatory results. See, e.g., Robinson

v. California, 370 U.S. 660, 666 (1962) (“in the light of

contemporary human knowledge, a law which made a

criminal offense of such a disease [addiction] would

doubtless be universally thought to be an infliction of

cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments”); Tate v. Short,

401 U.S. 395, 398 (1971) (“the Constitution prohibits

the State from imposing a fine as a sentence and then

automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith

pay the fine in full” (quotations omitted)); Lawrence v.

Texas, 539 U.S. 558, 575 (2003) (holding laws criminalizing same sex intimate conduct unconstitutional,

explaining that criminalization “is an invitation to

subject homosexual persons to discrimination both in

the public and in the private spheres”).

See U.S. Dep’t of Justice, Civil Rights Division, Best Practices

Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically Supported Factors (2014), https://www.hivlawandpolicy.org/

sites/default/files/DOj-HIV-Criminal-Law-Best-Practices-Guide.pdf

(laws motivated by stigma criminalize behaviors that pose no risk

of HIV transmission).

See Ashley B. Batastini et al., Mental Illness in the Eyes

of the Law: Examining Perceptions of Stigma Among Judges and

Attorneys, 24 Psychol., Crime & L. 673, 675–76, 680–83 (2018).

See Magdalena Sepúlveda, Report of the Special Rapporteur on Extreme Poverty and Human Rights, U.N. Doc. A/66/265

(Aug. 4, 2011) (discussing connection between criminalization

and poverty stigma).

B. Abortion Stigma Negatively Influences

Legal System Responses to People Who

Have Abortions

Abortion is deeply stigmatized in the U.S.55 Abortion stigma ascribes “negative attribute[s] . . . to

women who seek to terminate a pregnancy that marks

them . . . as inferior to ideals of womanhood.”56 Abortion bans contribute to this stigma by falsely exceptionalizing abortion as something that is uniquely

and presumptively unsafe, and as a result wrong and

harmful.57 This aura of illegality taints those who seek

to end their pregnancies, and provokes hostility toward

them.58

This stigma is apparent in the legal system’s treatment of people who have abortions. In recent history,

lawyers have attempted to use a woman’s prior

M. Antonia Biggs et al., Perceived Abortion Stigma and

Psychological Well-Being Over Five Years After Receiving or Being

Denied Abortion, 15 PLoS ONE No. 1, at 2 (2020).

Anuradha Kumar et al., Conceptualising Abortion Stigma,

11 Culture, Health & Sexuality 625, 628 (2009); Paula Abrams,

The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma, 19 Mich. J. Gender & L. 293, 299 (2013).

Paula Abrams, Abortion Stigma: The Legacy of Casey, 35

Women’s Rts. L. Rep. 299, 301 (2014); see also Tracy A. Weitz &

Katrina Kimport, The Discursive Production of Abortion Stigma

in the Texas Ultrasound Viewing Law, 30 Berkeley J. Gender L.

& Just. 6, 8–10 (2015); Rebecca J. Cook, Stigmatized Meanings

of Criminal Abortion Law, in Abortion Law in Transnational Perspectives: Cases and Controversies 349 (Rebecca J. Cook et al. eds.,

2014) (“The criminal prohibition of abortion contributes to exceptionalizing women seeking abortion as deviant[.]”).

Cook, supra note 57, at 349.

abortion as proof of her intent to commit a crime, to

undermine her credibility, to justify a crime committed

against her, or even to undervalue her life. See, e.g.,

Bynum, 546 S.W.3d at 542–43 (reversing conviction for

“concealing a birth” because evidence of defendant’s

abortion history was highly prejudicial); Hudson v.

State, 745 So. 2d 1014, 1015–16 (Fla. Dist. Ct. App.

1999) (reversing manslaughter conviction for death of

defendant’s infant child because evidence of her abortions was irrelevant and prejudicial); Jones v. Rent-ACtr., Inc., 281 F. Supp. 2d 1277, 1284 (D. Kan. 2003) (refusing to allow jury to consider plaintiff ’s abortion, explaining that “knowledge of plaintiff ’s abortion could

have caused the jury to decide the case on an improper

basis”); Kirk v. Wash. State Univ., 746 P.2d 285, 293–94

(Wash. 1987) (excluding evidence of abortion because

the prejudicial nature of such evidence is “beyond

question”); Marquez v. State, No. A-11925, 2019 WL

211490, at *1–3 (Alaska Ct. App. Jan. 16, 2019) (defendant, convicted of first-degree murder, claimed that

his girlfriend’s disclosure of her abortion just before he

killed her was “serious provocation”); Brock v. Wedincamp, 558 S.E.2d 836, 843–44 (Ga. Ct. App. 2002) (affirming refusal to admit evidence of a decedent’s

abortion in a wrongful death action, because “defendants want to unfairly devalue the decedent’s life to the

jury[.]”). The stigma attached to having an abortion is

so great that it may improperly influence the outcome

of a case. See, e.g., Garcia v. Providence Med. Ctr., 806

P.2d 766, 771 (Wash. Ct. App. 1991) (“[I]t is difficult to

imagine how such evidence would not have an extremely prejudicial effect on the jury.”); see also Nichols

v. Am. Nat’l Ins. Co., 154 F.3d 875, 885 (8th Cir. 1998)

(“Informing the jury that [plaintiff ] had had an abortion presented the danger of provoking the fierce emotional reaction that is engendered in many people

when the subject of abortion surfaces in any manner.”

(quotations omitted)).

In short, people who have abortions face unjust

bias when that fact is known to the legal system. This

bias explains why, in spite of constitutional protections

and prohibitions on criminalization of abortion, prosecutors continue to punish people for their pregnancy

outcomes, even when those outcomes are unintentional.

C. Abortion Stigma Leads to Pervasive Discriminatory Prosecutions in the U.S.

When stigma influences a legal response, any

pregnancy loss is potentially subject to criminalization. Since 1973, more than 1,200 people suspected of

having caused their own miscarriages or allegedly

risking harm to their pregnancies have been arrested

for offenses ranging from feticide to child abuse to

poisoning.59 The circumstances vary. They may have

See Farah Diaz-Tello, Roe Remains for Now . . . Will it Be

Enough?, Human Rights (Sept. 7, 2020), https://www.americanbar.

org/groups/crsj/publications/human_rights_magazine_home/healthmatters-in-elections/roe-remains-for-now-will-it-be-enough/; see also

Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005:

Implications for Women’s Legal Status and Public Health, 38 J.

Health Pol., Pol’y & L. 299, 309 (2013).

suffered a mental health crisis and attempted suicide.

See Shuai v. State, 966 N.E.2d 619, 622–25 (Ind. Ct.

App. 2012). They may have used a criminalized drug

during pregnancy and given birth to a healthy baby.

See Ex parte Hicks, 153 So. 3d 53, 55 (Ala. 2014) (upholding chemical endangerment conviction, noting

that the baby was “doing fine” since birth). They may

have expressed ambivalence about pregnancy while

seeking help for falling down a flight of stairs,60 or had

a precipitous birth at home that ended in stillbirth. See

Commonwealth v. Pugh, 969 N.E.2d 672, 677 (Mass.

2012) (reversing manslaughter conviction for breech

delivery that ended in stillbirth).

Pregnant people risk being criminalized for their

pregnancy outcomes even when it results from violence against them. Marshae Jones lost her pregnancy after another person shot her in the stomach.61

Compounding the trauma of being shot and losing a

pregnancy, the state of Alabama indicted Ms. Jones

for homicide and incarcerated her on a $50,000

bond. Though the prosecutor eventually dismissed

the indictment, Ms. Jones should never have been indicted in the first place: Alabama’s homicide statute

See Kevin Hayes, Did Christine Taylor Take Abortion into

Her Own Hands?, CBS News (Mar. 2, 2010), http://www.cbsnews.com/

news/did-christine-taylor-take-abortion-into-her-own-hands (woman

arrested for attempted feticide after falling down stairs while

pregnant).

Vanessa Romo, Woman Indicted for Manslaughter After

Death of Her Fetus, May Avoid Prosecution, NPR (Jun. 28, 2019),

https://www.npr.org/2019/06/28/737005113/woman-indicted-formanslaughter-after-death-of-her-fetus-may-avoid-prosecution.

specifically prohibits homicide charges against “any

woman with respect to her unborn child.” Ala. Code

§ 13A-6-1.

Because prosecutions like these are based on

stigma rather than sound legal principles, they are frequently overturned on appeal. See, e.g., Arms v. State,

471 S.W.3d 637, 641–43 (Ark. 2015) (rejecting application of poisoning crime between a woman and her fetus); State v. Louk, 786 S.E.2d 219, 228 (W. Va. 2016)

(overturning conviction for child neglect resulting in

death based on overdose during pregnancy); People v.

Jorgensen, 41 N.E.3d 778, 781–82 (N.Y. 2015) (overturning manslaughter conviction of woman involved in

car accident whose baby died shortly after emergency

delivery); State v. Stegall, 828 N.W.2d 526, 529–33

(N.D. 2013) (holding child endangerment statute does

not apply to acts by pregnant people in relation to their

pregnancies, regardless of birth outcome); but see Ex

parte Ankrom & Kimbrough, 152 So. 3d 397, 421 (Ala.

2013) (permitting child endangerment charges for prenatal exposure to controlled substances); Whitner v.

State, 492 S.E.2d 777, 778 (S.C. 1997) (extending criminal child abuse laws to reach acts that affect a viable

fetus); State v. Green, 474 P.3d 886, 891 (Okla. Crim.

App. 2020) (holding that a child neglect statute may

apply to a fetus). But the wait for vindication on appeal

lasts months or years.

This is what happened to Rennie Gibbs, a 16-yearold Mississippi girl who was indicted on “depraved

heart murder” charges after experiencing a stillbirth

at home.62 Despite the conclusion by multiple experts

that the cause of the stillbirth was umbilical cord compression, the state chose to rely on the coroner’s indefensible conclusion that trace amounts of cocaine

byproduct caused the fetal death. Ms. Gibbs faced the

possibility of life in prison until a trial court dismissed

the case.63

Another Mississippi woman, Latice Fisher, was indicted for second-degree murder for a stillbirth she

experienced at home.64 The indictment was partially

based on the mistaken assumption that her stillborn

infant was born alive—but also on an allegation that

she had searched online for information about selfmanaged abortion.65 The state dropped the charges,

but later convened a second grand jury, which refused

to indict.66 The focus on the search history regarding

self-managed abortion on Ms. Fisher’s phone67 belies

Nina Martin, A Stillborn Child, A Charge of Murder and

the Disputed Case Law on ‘Fetal Harm,’ ProPublica (Mar. 18,

2014), https://www.propublica.org/article/stillborn-child-chargeof-murder-and-disputed-case-law-on-fetal-harm.

Sarah Fowler, Judge Dismisses Rennie Gibb’s Depraved

Heart Murder Case, The Dispatch (Apr. 3, 2014), https://cdispatch.com/

news/2014-04-03/judge-dismisses-rennie-gibbs-depraved-heartmurder-case/.

Nat’l Ass’n of Criminal Defense Lawyers, Abortion in

America: How Legislative Overreach Is Turning Reproductive

Rights into Criminal Wrongs 37 n.12 (2021), www.NACDL.org/

AbortionCrimReport.

Id.

Rankin, supra note 46.

the true impetus for this prosecution: abortion

stigma.

Not only do prosecutions for pregnancy loss go

forward without statutory authorization: these prosecutions also violate human rights.

IV.

Criminalization of People Who End Their

Pregnancies Irrevocably Harms Their Health

and Well-Being, Violating Their Human Rights

Prosecutions of people who end their pregnancies

proceed despite the fact that this Court has never endorsed criminalizing people who have abortions. See

McCormack, 694 F.3d at 1018 (noting that, although

this Court has authorized abortion restrictions, “it has

not authorized the criminal prosecution of women

seeking abortion care”). But it is not enough to rely on

prosecutorial forbearance. Criminalizing people for

ending their pregnancies violates their human rights

and must be avoided.

The threat to human rights posed by criminalizing

abortion is evident in the unequivocal accord by international human rights authorities that governments

must prevent the harms criminalization causes. As

the U.N. Working Group on Discrimination Against

Women (WGDAW) has identified, criminalizing reproductive outcomes is “discriminatory per se” and

uniquely harmful because of the stigma it perpetuates.68

U.N. Working Group on Discrimination Against Women,

Report of the Working Group on the Issue of Discrimination

Criminalization is “one of the most damaging ways of

instrumentalizing and politicizing women’s bodies and

lives,” and “does grave harm to women’s health and human rights by stigmatizing a safe and needed medical

procedure.”69

This Court has long “looked beyond our Nation’s

borders” to international law to illuminate the nature

of the state’s obligation to protect fundamental

rights. See, e.g., Graham v. Florida, 560 U.S. 48, 80

(2010) (acknowledging the practice of looking to consensus among nations to determine evolving standards against cruel and unusual punishment).70 The

message is clear: criminalizing people for abortions violates the rights to the highest attainable standard of

health, freedom from discrimination, freedom from

cruel, inhuman, and degrading treatment, and the

right to life.

A. Criminalizing People for Ending Pregnancies Violates Their Right to Health

by Deterring Them from Seeking

Healthcare

Every person has the right to the “highest attainable standard of physical and mental health” under the

Against Women in Law and in Practice, ¶ 78, U.N. Doc.

A/HRC/32/44 (Apr. 8, 2016) [hereinafter WGDAW Report].

Id., ¶ 79-80.

See also Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 33–87 (2006) (discussing this Court’s

history of examining foreign law in constitutional interpretation).

International Covenant on Economic, Social and Cultural Rights, a treaty signed by the U.S.71 As the

treaty’s monitoring committee has observed, this guarantee extends to reproductive health, which is “intimately linked to civil and political rights underpinning

the physical and mental integrity of individuals and

their autonomy[.]”72

Criminalizing people for ending their pregnancies

has consistently been cited as an example of a violation

of the right to health.73 The U.N. Special Rapporteur on

the right to health has identified laws authorizing the

criminalization of abortion as “paradigmatic examples

of impermissible barriers to the realization of women’s

right to health[.]”74 This is because “stigma resulting

from criminalization [of abortion] creates a vicious cycle,” preventing people from seeking treatment when

complications arise.75 Similarly, the WGDAW has recognized that criminalizing reproductive healthcare

violates the right to equal access to healthcare services.76 It identified the use of criminal sanctions

Int’l Covenant on Economic, Social & Cultural Rights, art.

12, Dec. 16, 1966, 6 I.L.M. 360, 993 U.N.T.S. 3.

U.N. Comm. on Economic, Social and Cultural Rights,

Gen. Comment No. 22 (2016) on the Right to Sexual & Reproductive Health (art. 12), ¶ 10, U.N. Doc. E/C.12/GC/22 (May 2, 2016).

Id., ¶ 57

Anand Grover, Interim Report of the Special Rapporteur on

the Right of Everyone to the Enjoyment of the Highest Attainable

Standard of Physical and Mental Health, ¶ 21, U.N. Doc.

A/66/254 (Aug. 3, 2011).

Id., ¶ 35.

WGDAW Report, supra note 68, at ¶ 14.

against people who terminate pregnancies as a “severe

and unjustified form of State control,” which “generates stigma and discrimination and violates women’s

human rights.”77 The excess health risks created by

criminalizing abortion may even violate the right to

life under the International Covenant on Civil and

Political Rights, which the U.S. ratified.78

The barriers posed to the right to health by inserting the fear of criminal prosecution into seeking postabortion care are not hypothetical. People in the U.S.

who fear arrest avoid the healthcare system, even in

the absence of a law that would criminalize them. For

example, people who could die from a drug overdose

are still unlikely to seek medical care for fear of arrest,

even when laws encourage them to seek such care.79

The same is true of people who fear being criminalized

for their pregnancy outcomes.80

Although self-managed abortion is generally safe,

the state must not deter people from seeking care in

the event of a complication. The need to ensure that

Id., ¶ 76.

Human Rights Comm., Gen. Comment No. 36 (2018) on the

Right to Life (art. 6), ¶ 8, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018).

Stephen Koester et al., Why Are Some People Who Have

Received Overdose Education and Naloxone Reticent to Call

Emergency Medical Services in the Event of Overdose?, 48 Int’l J.

Drug Pol’y 115, 116 (2017).

Rebecca Stone, Pregnant Women and Substance Use: Fear,

Stigma, and Barriers to Care, 3 Health & Just. 1, 2–8, 14 (2015)

(pregnant drug users delayed or avoided prenatal care out of fear

of criminal punishment, though they were likelier to experience

positive birth outcomes when they received prenatal care).

people can access care without hesitation has led

medical associations to decry the criminalization of

self-managed abortion. As the American College of

Obstetricians and Gynecologists has explained, “[t]he

threat of prosecution [for self-managed abortion] may

result in negative health outcomes by deterring

women from seeking needed care[.]”81 The American

Medical Association shares this position, because criminalizing self-managed abortions “increases patients’

medical risks and deters patients from seeking medically necessary services[.]”82 Unfortunately, based on

the experiences of individuals criminalized for their

pregnancy outcomes in the U.S., the fears that drive

people away from medical care are well-founded.

Am. Coll. of Obstetricians & Gynecologists, Decriminalization of Self-Induced Abortion: Position Statement (Dec. 2017),

https://www.acog.org/clinical-information/policy-and-positionstatements/position-statements/2017/decriminalization-of-selfinduced-abortion.

Am. Med. Ass’n, Oppose the Criminalization of Self-Induced Abortion H-5.980 (2018), http://policysearch.ama-assn.org/

policyfinder/detail/abortion?uri=%2FAMADoc%2FHOD.xml-H-5.

980.xml; see also Physicians for Reprod. Health, Self-Managed

Abortion Statement 7 (Nov. 2018), http://prh.org/wp-content/uploads/

2018/12/Self-Managed-Abortion-Position-Statement-2018.pdf (“No

person should be subject to legal action for decisions they make

about ending a pregnancy.”).

B. Criminal Investigations and Prosecutions Following Abortion or Pregnancy

Loss Are Cruel, Inhuman, and Degrading Treatment

International law prohibits governments from inflicting torture and other forms of cruel, inhuman, and

degrading treatment. U.N. treaty bodies have interpreted this prohibition to extend to situations in which

restrictions on abortion threaten pregnant people’s

physical and mental health.83 Encompassed within

this prohibition are mistreatment by both healthcare

providers and agents of punitive state systems. As the

U.N. Special Rapporteur on torture has noted, humiliation in healthcare institutions and breaches of medical privacy when patients are believed to have had

illegal abortions “can cause tremendous and lasting

physical and emotional suffering, inflicted on the basis

of gender.”84 This is especially so when confessions are

extracted from people seeking care for obstetric emergencies.85

See, e.g., U.N. Comm. Against Torture, Conclusions and

Recommendations: Peru, ¶ 23, U.N. Doc. CAT/C/PER/CO/4 (Jul.

25, 2006).

Juan E. Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 46, U.N. Doc. A/HRC/22/53 (Feb. 1, 2013).

Juan E. Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 44, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016); see also U.N.

Comm. Against Torture. Conclusions and Recommendations:

Chile, ¶ 7(m), U.N. Doc. CAT/C/CR/32/5 (Jun. 14, 2004) (urging

The harms these international bodies warn

against are characteristic of arrests for suspected selfmanaged abortions in the U.S. Like Bei Bei Shuai in

Indiana, patients may be interrogated while “[g]rief

stricken and under heavy sedation” from labor or an

obstetric emergency.86 Like Purvi Patel, they may

have recorded “confessions” extracted by police without Miranda warnings, in the middle of the night while

in post-operative recovery from “sedation and severe

blood loss.”87 Or, like Kenlissia Jones after she delivered a 5-month gestation fetus en route to the emergency room, they may be transferred directly from the

hospital to jail, still bleeding, and held without bond.88

This Court has recognized that even when charges

are dropped, the mere fact of an arrest causes ongoing

harm. See, e.g., Michelson v. United States, 335 U.S.

Chile to end interrogations of patients believed to have had illegal

abortions, and nullify convictions where this occurred).

Ed Pilkington, Indiana Prosecuting Chinese Woman for

Suicide Attempt That Killed Her Foetus, The Guardian (May 30,

2012), https://www.theguardian.com/world/2012/may/30/indianaprosecuting-chinese-woman-suicide-foetus (although Ms. Shuai

was so distraught after the death of her infant following her suicide attempt that she was “instantly transferred to the mental

health wing,” a detective was dispatched to the maternity ward

to question her “within half an hour of her baby’s death”).

See Amy Gastelum, Purvi Patel Faces 20 Years in Prison

for Feticide and Child Neglect, The World (Mar. 31, 2015),

https://www.pri.org/stories/2015-03-30/purvi-patel-faces-20-yearsprison-feticide-and-child-neglect; Patel, 60 N.E.3d at 1047.

Official: 5-Month-Old Fetus Lived 30 Minutes After

‘Abortion Pill’ Delivery, WALB News (Jun. 8, 2015),

https://www.walb.com/story/29263746/official-5-month-old-fetuslived-30-minutes-after-abortion-pill-delivery/.

469, 482 (1948) (“Arrest without more may nevertheless impair or cloud one’s reputation.”); Utah v. Strieff,

136 S. Ct. 2056, 2070 (2016) (even the innocent “experience the ‘civil death’ of discrimination by employers,

landlords, and whoever else conducts a background

check”) (Sotomayor, J., dissenting). Given the Internet’s indelible record, cruel and degrading treatment is

ongoing, as the names, mugshots, and private medical

information of people criminalized for self-managing

abortion remain online in perpetuity. As a result, the

accused face stigma, ostracism, and threats. Jennie

McCormack, criminalized in Idaho after self-managing

an abortion, was “turned [ ] into a pariah” and forced to

quit her job at a dry cleaner because “clients said they

didn’t want her handling their clothes.”89 When Kasey

Dischman, who nearly lost her pregnancy after a lifethreatening drug overdose, was arrested, “[r]eaders of

the local paper were calling for Ms. Dischman to be

sterilized, hung with piano wire or shot in the back of

the head.”90

See Kim Murphy, Idaho Woman’s Case Marks a Key

Abortion Challenge, L.A. Times (Jun. 16, 2012), http://www.

latimes.com/archives/la-xpm-2012-jun-16-la-na-idaho-abortion20120617-story.html.

N.Y. Times Ed. Bd., The Mothers Society Condemns, N.Y.

Times (Dec. 28, 2018), http://www.nytimes.com/interactive/2018/

12/28/opinion/abortion-law-poverty.html.

C. Racial Bias in Law Enforcement Means

That the Harms Related to Criminalization of Abortion and Miscarriages Are

Disproportionately Borne by People of

Color

International human rights law requires that governments work to eradicate all forms of racial discrimination. Critically, human rights authorities have

identified law enforcement and the administration of

the criminal justice system as key sites of harmful racial profiling and discrimination that can occur as a

matter of practice even without being codified in law.91

Recently, several U.N. bodies have demanded action

against such harms, including specifically calling upon

the U.S. to investigate discrimination in its administration of criminal justice.92

International law further acknowledges that racial discrimination is intersectional, meaning that it is

exacerbated by other forms of discrimination, such as

sexism. The Committee on Elimination of Racial Discrimination has noted that “[t]here are circumstances

in which racial discrimination only or primarily affects

women, or affects women in a different way” requiring

special attention to the different life experiences of

Comm. on Elimination of Racial Discrimination [hereinafter C.E.R.D.], General Recommendation No. 31, U.N. Doc. A/60/18

(2005–2006).

See C.E.R.D., General Recommendation No. 36, U.N. Doc.

CERD/C/GC/36 (Dec. 17, 2020); Nick Cumming-Bruce, U.N. to

Form Panel to Investigate Systemic Racism in Policing, N.Y.

Times (Jul. 13, 2021), https://www.nytimes.com/2021/07/13/world/

united-nations-panel-human-rights-council-racism.html.

men and women.93 The compounding nature of discrimination on the bases of race and sex yields disproportionate criminalization and punishment. People of

color and low-income people are exponentially more

likely to be arrested, charged, prosecuted, convicted,

and more heavily punished than are white, wealthier

women.94

Unsurprisingly, criminalizing people for their

pregnancy outcomes disproportionately impacts people of color. One study found that, among women seeking medical care related to pregnancy, women of color

were significantly more likely to be reported to law enforcement by the very people they turned to for help

than were white women.95 Axiomatically, this results

in disproportionate punishment. In Florida, where

Black people constitute only 15% of the population,

they accounted for 75% of arrests related to pregnancy.96 In South Carolina, where Black people

C.E.R.D., General Recommendation No. 25, ¶ 1, U.N. Doc.

A/55/18 (2000).

Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sentencing Project (Jun. 14, 2016),

https://www.sentencingproject.org/publications/color-of-justiceracial-and-ethnic-disparity-in-state-prisons/ (Black people are

more than five times likelier than white people to be imprisoned;

Latinx people are 1.4 times as likely); see also Lakota People’s

Law Project, Native Lives Matter 6 (Feb. 2015), https://s3-us-west1.amazonaws.com/lakota-peoples-law/uploads/Native-Lives-MatterPDF.pdf (Native American women are imprisoned at six times the

rate of white women).

See Paltrow & Flavin, supra note 59, at 326–27.

Id. at 311.

constitute 30% of the population, they accounted for

74% of arrests related to pregnancy.97

If HB 1510 is permitted to take effect, these existing disparities are likely to be compounded, as the people who will lose access to clinic-based abortions in

Mississippi are predominantly Black women.98

---------------------------------♦---------------------------------

CONCLUSION

Whatever interest Mississippi claims in the protection of potential life, it has an obligation to protect

the lives and health of pregnant individuals. It violates

that obligation by placing Mississippians in a doublebind: unable to obtain an abortion within the bounds

of law, but at risk of criminal punishment for seeking

abortions outside the law’s dictates. As human rights

bodies and experts have admonished other countries

that have taken this treacherous path, the obligation

to uphold human rights is not diminished if a person

ends their pregnancy. The constitutional protections

for the right to make reproductive decisions have been

Id.

While approximately 38% of Mississippi’s population identified as Black in 2018, see U.S. Census Bureau, ACS Demographic and Housing Estimates (2018), https://data.census.gov/

cedsci/table?g=0400000US28&tid=ACSDP1Y2018.DP05&hidePreview=

true, nearly 72% of the abortions performed in Mississippi that

year were performed on Black women. Katherine Kortsmit et al.,

Abortion Surveillance—United States, 2018, 69 MMWR Surveill.

Summ. 1, 19 tbl. 5 (2020), https://www.cdc.gov/mmwr/volumes/69/

ss/pdfs/ss6907a1-H.pdf.

an imperfect bulwark against criminalization for people seeking abortions in Mississippi and across the nation. But if they are further eroded, the stakes are dire.

Respectfully submitted,

PAUL J. LAWRENCE

JESSICA A. SKELTON

ALANNA PETERSON

PACIFICA LAW GROUP LLP

1191 Second Avenue,

Suite 2000

Seattle, WA 98101

(206) 245-1700

FARAH DIAZ-TELLO*

SARA L. AINSWORTH

YVEKA PIERRE

IF/WHEN/HOW: LAWYERING

FOR REPRODUCTIVE JUSTICE

1714 Franklin Street,

#100-393

Oakland, CA 94612

(347) 974-7337

farah@ifwhenhow.org

Counsel for Amici Curiae

*Counsel of Record

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