Eclipsed: Pregnant Women in the Post-Roe Era

Abstract

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey and authorized states to ban abortion and force pregnant women to carry a pregnancy to term. However, Dobbs is not just about abortion. By expressly recognizing the state’s interest in “respect for and preservation of prenatal life at all stages of development,” the Court has swung open the door for states to risk and regulate pregnant women’s lives, regardless of whether they want an abortion, need an abortion, or are carrying a pregnancy to term.

This Article focuses on pregnancy—wanted or forced—in the post-Roe era. It reconstructs how we arrived at this point where the state’s interest in protecting fetal life can eclipse a pregnant woman’s rights to privacy, equality, and dignity. It then examines the immediate and long-term consequences of Dobbs on pregnant women’s care and decision-making autonomy. Most immediately, pregnant women are now vulnerable to unnecessary health risks and inadequate pregnancy care in states with newly enacted or newly enforceable laws that ban abortion. Both historically and in the post-Roe era, exceptions to abortion bans have proven unworkable. They interfere with pregnant women’s ability to obtain standard-of-care medical treatment and create chaos and confusion for doctors who practice in fear of losing their medical license or going to prison if they provide women with abortion care. Long term, pregnant women face increased likelihoods of compelled or coerced medical intervention and circumscribed choices throughout pregnancy—all based on a prevailing assumption that women are exclusively responsible for producing a healthy pregnancy but are not capable of making the right decisions for their pregnancy. Decisions resolving individual patient-doctor conflicts, as well as broadly-applicable laws and recommendations governing pregnancy care, such as midwifery regulations and “zero trimester” recommendations, require healthy skepticism to avoid further stripping pregnant women of their decision-making autonomy. This Article concludes by arguing for a reversal of course and advances an agenda grounded in pregnancy justice that recenters pregnant women to improve maternal and infant outcomes.