Amanda Zurawski was pregnant and excited to start her journey of becoming a new mother. After 17 weeks of the pregnancy, however, her doctors diagnosed her with an incompetent cervix, a condition where weak cervical tissue causes the cervix to dilate prematurely, causing her fetus to be medically unviable. Even though she did not yet have signs of infection, future harm was imminent—sepsis would develop and she faced a real risk of permanent damage to her reproductive organs—but avoidable if she terminated the pregnancy. The only problem was, she lived in Texas.

Texas law makes abortion a first-degree felony unless a physician determines that the pregnancy poses a life-threatening condition or a “serious risk of substantial impairment of a major bodily function.” The legislature left these terms undefined, offering no clinical guidance for physicians making emergency decisions. As such, it was unclear whether Ms. Zurawski’s position warranted coverage by the exception. Her doctors refused to act, fearing that, if her condition was not covered, they would be subject to fines of at least $100,000, prison sentences of up to ninety- nine years, and revocations of their medical licenses. Ms. Zurawski soon became septic with a peak temperature of 103.2 degrees Fahrenheit. At that point, the hospital finally decided that she was sick enough to initiate an abortion without violating Texas’s abortion bans. After the abortion, she spent three days in the intensive care unit, fighting for her life. The septic infection, that would not have occurred if she were given an earlier abortion, caused one of her fallopian tubes to close permanently, requiring that she turn to in vitro fertilization in any future attempts to have a child.

In an attempt to prevent other pregnant people from going through a similar traumatic situation, Ms. Zurawski sued the state seeking declaratory judgment and a permanent injunction demanding clarification from Texas on the scope of the exception to its abortion bans, as well as any relief “necessary to protect the health and lives of pregnant Texans with emergent medical conditions.” Texas argued that any harm alleged in the suit does not stem from the abortion statute itself, but rather from physicians’ failure to act—framing the issue as one of medical malpractice and contending that patients should sue their doctors, not the State. The court sided with the state and declined to make Texas provide guidance on its interpretation, saying that the standard was clear enough for physicians to understand and implement with their medical expertise.

Unfortunately, Ms. Zurawski’s medical experience is not unique. In many states across the nation, restrictive abortion laws force patients to face irreversible physical damage while being turned away from essential abortion care. Patients in these situations suffer profound emotional distress, but the threat of criminal prosecution imposed on physicians further compounds that harm by discouraging timely intervention, leading to preventable physical injury and, in some cases, death.

Abortion criminalization not only impacts the lives of patients and physicians, but it is also strongly correlated with numerous systemic negative health effects. For instance, abortion criminalization decreases access to sexual and reproductive goods, abortion services, and sexual and reproductive information, disproportionately affecting women and girls. Criminalization often results in delayed or self-managed abortions, which produces more health harms—such as uterine perforation, sepsis, or overdosing on herbal medications—than normal, supervised abortions. Moreover, it imposes unnecessary travel and costs on abortion seekers and delayed or eliminated access to post-abortion care.

In contrast, legalized abortion has been associated with an increase in health outcomes and a drop in crime because legalization alters the demographic and socioeconomic composition of people who would partake in crime in ways that later reduced their tendency towards crime when reaching peak offending ages. The decrease in crime proposition is based on the observation that abortion access disproportionately reduces births among populations more at risk of engaging in criminal behavior— such as individuals born into environments characterized by poverty, instability, and limited parental resources. Additionally, abortions allow pregnant individuals to delay childbearing until conditions are more favorable for raising children. Legalized abortion can have positive results, and many countries are moving toward that direction.

Out of the 60 countries that have changed their abortion laws in the past 30 years, 56 of them have expanded access to abortions, however, the United States has taken the opposite path. Despite an array of evidence that criminalization of abortion breeds irreversible harm to pregnant people and society, the United States has re-embraced punitive abortion laws in the wake of Dobbs v. Jackson Women’s Health Organization. Post-Dobbs, many states have implemented or revived abortion bans with criminal penalties for providers. In these states, doctors risk heavy personal costs for exercising clinical judgment, and patients bear the consequences of legal ambiguity.

This Note argues that abortion criminalization in the United States is ineffective at reducing abortion rates, directly harms pregnant people’s health, and should be replaced with public-health regulatory frameworks modeled on international systems that improve safety without criminal penalties. Part I will describe the historical and legal evolution of abortion criminalization in the United States. Part II will present evidence that criminalization fails to deter abortion and worsens health outcomes. Part III will compare international models that regulate abortion as healthcare, not crime. Part IV will argue prescriptively for legislative reform and propose a model statute focused on health and safety instead of criminalization.

Read More.