Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World
Jolynn Dellinger & Stephanie Pell
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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.
State Public Morality Regulation and the Dormant Commerce Clause
Douglas Kysar
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The Adult Rights-Bearing Archetype and How It Stifles Young People’s Equal Protection
Catherine E. Smith
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American constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children’s equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children’s rights into a web of laws and principles designed for an adult rights-bearing archetype, discrimination against children merits a framework on its own terms. This article concludes by introducing three youth-based paths to heightened scrutiny when laws: (1) use children as a means to create or maintain a caste system; (2) punish children for matters over which they have no control; or (3) erect an insurmountable barrier to children’s ability in the political process to remedy large-scale catastrophic harm inflicted upon them, such as the disproportionate injuries to young people from the climate crisis and gun violence. This article lays the groundwork for a “children’s equality law” that both accommodates young people’s qualities, characteristics, and needs and provides them equal protection of laws.