Open PDF in Browser: Sara L. Ainsworth and Leigh Goodmark,* Defending Imperfect Victims from Self-Managed Abortion Criminalization: Why Evidence of Intimate Partner Violence Matters
As access to abortion has become both more restricted and more contested, self‑managed abortions have increased—as has the criminalization of people for self‑managing abortion or for unintentional pregnancy losses. Self‑managed abortion means ending one’s own pregnancy outside the formal medical system. It is a practice as old as pregnancy itself, but the advent of safe and effective abortion pills, obtained easily and used discretely, has made self‑managed abortion more common, sought‑after, and safer. But ending a pregnancy on one’s own terms remains stigmatized because of the social conflict around abortion and is increasingly criminalized because that stigma leads prosecutors and police to see a crime where there is none and misapply unrelated criminal statutes. This criminalization is also informed by the disproportionate reliance on carceral interventions in response to human needs in the United States.
Particularly post‑Dobbs, abortion has become a vector for intimate partner violence because state abortion bans and restrictions empower abusive partners’ acts of violence and coercion. People who seek abortions do so for myriad reasons; needing to escape from or lessen intimate partner violence is one of them. It is well understood that intimate partner violence increases the risk of unintended pregnancies and that abusive partners often begin or increase acts of violence during pregnancy. In turn, pregnancy and subsequent childbearing make it more difficult to leave an abusive relationship. Further, reproductive coercion—using coercive control to force pregnancy or a particular pregnancy outcome—is understood as a form of intimate partner violence. Intimate partner violence both motivates the abused person to seek an abortion and may result from seeking an abortion.
In prosecutions of people who had abortions or experienced unintended pregnancy losses, defendants are often denied the ability to introduce evidence of the impact of intimate partner violence on their decisions and actions—for reasons grounded in both doctrine and stigma. Prosecutors and judges in criminal cases involving self‑managed abortion often refuse to acknowledge these defendants’ victimization or its relevance in their trials. Simultaneously, abortion stigma operates to make seeking an abortion seem inconsistent with defendants’ victimization claims.
The unwillingness of judges to admit evidence of intimate partner violence is especially problematic because intimate partner violence is often an integral part of self‑managed abortion criminalization. Evidence of intimate partner violence provides a context for understanding the defendant’s actions, rebuts prosecutors’ claims about mens rea, bolsters the defendant’s credibility, and addresses biases and stereotypes that judges and juries have about intimate partner violence, abortion, and self‑managed abortion. Without the benefit of this evidence, defendants in cases of self‑managed abortion criminalization remain imperfect victims, joining other criminalized survivors in feeding the increase in mass incarceration. This Article is the first to document the exclusion of intimate partner violence evidence in cases where a person has been criminally charged because of an alleged self‑managed abortion. Additionally, this Article is the first to explain that the inclusion of such evidence is both legally correct and necessary for a complete defense in any self‑managed abortion or pregnancy criminalization case involving intimate partner violence.
Introduction
Abortion and intimate partner violence are frequently intertwined. Intimate partner violence is linked to unintended pregnancies; indeed, reproductive coercion—using violence or threats to force or coerce pregnancy or a particular pregnancy outcome—is understood as a form of intimate partner violence. Whether or not a pregnancy resulted from assault or coercion, intimate partner violence often begins or intensifies during pregnancy. In turn, pregnancy makes it more difficult to leave an abusive relationship. Unsurprisingly, then, the decision to seek an abortion may be connected to intimate partner violence.
But when survivors attempt to seek an abortion in the context of intimate partner violence, abusive partners use a variety of tactics to try to stop their partners from having abortions or punish them when they do. Particularly since the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization reversed longstanding precedent recognizing the constitutional right to decide whether to carry to term or terminate a pregnancy, abortion‑seeking has become a vector for abuse, as state abortion bans and criminalization of pregnancy outcomes embolden and empower abusive partners.
As access to abortion has become both more restricted and more contested, self‑managed abortion[1] and the potential for criminalization of people who self‑manage abortion have both increased.[2] However, such prosecutions are rarely based on laws that actually criminalize abortion; most states never criminalized self‑managing an abortion, and only Nevada retains such a law as of this writing.[3] Instead, prosecutors pursue charges for crimes like homicide, child endangerment, manslaughter, or abuse of a corpse.[4] Even though these charges do not—and usually cannot—draw on abortion‑specific crimes, they nonetheless draw on abortion stigma.
Abortion stigma[5] manifests in criminal cases involving self‑managed abortion. Seeking an abortion undermines the claims made by defendants that they have been victims of intimate partner violence. Prosecutors and judges refuse to acknowledge these defendants’ victimization or see it as relevant in their trials. In those prosecutions, courts have denied defendants the ability to introduce evidence of the impact of intimate partner violence on their decisions and actions—for reasons grounded in both a misapprehension of legal doctrine and stigma.
The unwillingness of judges to admit evidence of intimate partner violence would not matter so much if intimate partner violence was not an integral part of many self‑managed abortion cases. But it is: Between 1973 and 2005, 9 percent of pregnancy criminalization[6] cases included references to violence against the pregnant person.[7] And as the cases we consider in this Article demonstrate, such violence is also an issue in more recent pregnancy criminalization cases.[8] That evidence is often key to understanding the actions that a defendant took during or after the pregnancy. Evidence of intimate partner violence can provide the necessary context for understanding a defendant’s actions, rebut prosecutors’ claims about mens rea, bolster the defendant’s credibility, and address biases and stereotypes that judges have about intimate partner violence, abortion, and self‑managed abortion—just as such evidence creates a context for understanding a defendant’s actions in other kinds of criminal cases. As a result, evidence of intimate partner violence is highly relevant in self‑managed abortion prosecutions involving some history of violence, and judges should admit that evidence.
This Article sits at the intersection of the literature on the criminalization of pregnancy[9] and the literature on the criminalization of survivors of intimate partner violence.[10] Pregnancy criminalization is not a new phenomenon in the United States; it occurred even when the right to abortion was protected by the U.S. Constitution. Lynn Paltrow and Jeanne Flavin documented 413 cases, brought between 1973 and 2005, where people were charged with crimes ranging from reckless endangerment to homicide. These charges often involved allegedly using criminalized drugs during pregnancy. Some people were charged after losing a pregnancy, but others were charged after giving birth to healthy babies.[11] In recent years, increasing numbers of people have been arrested and prosecuted for alleged crimes after experiencing a miscarriage, stillbirth, or having an abortion, or for allegedly using criminalized drugs during pregnancy, or for actions they took (or did not take) after a pregnancy loss. Research by nonprofit legal organization If/When/How found that at least sixty‑one people in twenty‑six states were criminally investigated or arrested for crimes related to self‑managed abortions between 2000 to 2020.[12] The nonprofit legal organization Pregnancy Justice identified more than 1,300 arrests of pregnant people for alleged crimes related to their pregnancy between January 1, 2006, and June 23, 2022 (the day before Dobbs was announced).[13]
The pregnancy criminalization literature developed by lawyers, legal academics, and health and social science researchers over the last four decades documents the spread of criminalization, the forms it takes, and theorizes about the motivations behind the trends. Law professor Dorothy Roberts argued persuasively and influentially that criminalizing pregnant women for substance use during pregnancy, based on a purported interest in fetal health, is part of the long history of state control and coercion of Black women and Black women’s reproductive capacity.[14] As the focus of the drug war has shifted, so too, the literature argues, has the form and focus of criminalization—from punishing Black pregnant women with substance addiction to “protecting” primarily white fetuses by providing “care” (in the form of the threat of incarceration) to disproportionately white pregnant people with substance addiction.[15]
As insidious as the racist and classist motivations for pregnancy criminalization is its reliance on the notion that the pregnant person is separate from the fetus they carry and that, therefore, the state can subject the pregnant person to all manner of state interventions—including the deprivation of their liberty—as a subordinate rights‑holder.[16] This construction of pregnant people in opposition to the fetuses they carry suggests that any pregnant person is potentially suspect for action (or inaction) considered harmful to the fetus—from being shot in the stomach,[17] to carrying to term while using prescribed medications to treat opioid addiction,[18] to not getting prenatal care,[19] to suffering from depression and attempting suicide,[20] to refusing medical interventions,[21] to getting in a car accident,[22] to having a miscarriage at home and flushing the remains,[23] to self‑managed abortion.
The literature detailing the criminalization of survival focuses on how victims of gender‑based violence become entrapped in the criminal legal system. That literature notes the increase in women’s incarceration, documents the incidence of gender‑based trauma among the population of incarcerated women, and explains why the criminal legal system is unwilling to see criminalized survivors as victims of violence.[24] Survivors of intimate partner and other forms of gender‑based violence are overrepresented in prisons. Approximately 191,000 women are incarcerated in the United States.[25] The vast majority of these women are survivors of gender‑based violence—between 50 and 95 percent of incarcerated women have been raped, sexually assaulted, or subjected to abuse by their partners.[26] The literature documents how criminal interventions meant to protect survivors of intimate partner violence have instead led to the incarceration of survivors.[27] Criminologist Beth Richie’s work on the gender entrapment of Black survivors of violence has been particularly influential.[28] One of the authors of this Article has argued that criminalized survivors of violence are imperfect victims who fail to conform to victimization stereotypes—for example, that victims are white, heterosexual, weak, meek, dependent, and passive. In theory, those stereotypes might protect criminalized survivors from prosecution, but in practice, they are all but impossible to meet.[29]
The literatures addressing pregnancy criminalization and criminalization of survival both stress the disproportionate impact of criminalization on women living in poverty and women of color.[30] They also highlight the propensity of the criminal legal system to punish people who fail to conform to stereotypes around gender, femininity, and motherhood, which leads judges, prosecutors, and others to dismiss their victimization.[31] These literatures—and the authors of this Article—argue that for these reasons and more, the use of the criminal, family policing, and other surveillance and carceral systems against people for their intimate partner violence victimization and for their pregnancy outcomes is unjust, dangerous to survivor safety, and undermines public health. As attorneys defending criminalized people, we argue that as long as those systems continue to punish people, they must recognize the link between abusive intimate partners and pregnancy criminalization. When, for example, courts deny criminalized survivors the opportunity to present evidence of intimate partner violence in self‑managed abortion and pregnancy loss criminalization cases, courts embolden abusers and violate constitutional rights.
This Article is the first to address the intersection of self‑managed abortion and pregnancy loss prosecutions with intimate partner violence victimization and challenge the exclusion of intimate partner violence evidence in those cases. It proceeds in five parts. Part I surveys self‑managed abortion criminalization and provides two case studies from prosecutions litigated by one of the Article’s authors. In Part II, the Article discusses the various ways that evidence of intimate partner violence is admitted in criminal cases. Part III establishes the link between abortion and intimate partner violence, discussing violence in pregnancy, reproductive coercion, and how abortion becomes a site of abuse. In Part IV, we describe the concept of abortion stigma and consider how that stigma both empowers those who abuse their partners and affects judges’ perceptions of defendants. Part V uses the case studies introduced in Part I to demonstrate how and why evidence of intimate partner violence could and should have been admitted. The Article concludes that no statutory fix is necessary here; judges simply need to apply the Rules of Evidence and admit relevant evidence of intimate partner violence in these cases.
People choose self‑managed abortions for many reasons: because they live in a state that has banned abortion or clinic‑based abortion is inaccessible for other reasons, but also because they want privacy, because they prefer to avoid or cannot engage the medical care system, or because they feel empowered by taking charge of their own health care.[32] Self‑care that has become increasingly common and is safer than at any time in human history nonetheless remains stigmatized because of the social conflict around abortion and is criminalized because of the disproportionate reliance on carceral interventions in response to human needs in the United States.[33] At a time when thirteen states are enforcing sweeping bans on abortion[34] and prosecutors and abusive ex‑partners continue to misuse the law to threaten abortion access,[35] the number of people who turn to self‑managed abortion is certain to continue to rise. While no one should be prosecuted for a pregnancy outcome, whether a self‑managed abortion or unintended pregnancy loss, those who are prosecuted for self‑managing or allegedly self‑managing abortions cannot be vigorously defended unless they are allowed to introduce information about their victimization into evidence.
Self‑Managed Abortion and Criminalization of Pregnancy Outcomes
Pregnancy losses—including miscarriage, stillbirth, and perinatal loss—are common experiences in people’s reproductive lives.[36] So, too, are abortions, whether provided by a licensed clinician or self‑managed.[37] Even now, with thirteen states enforcing near‑total bans on abortion,[38] abortion rates are rising.[39] None of these common reproductive experiences are crimes—they typically were not historically, and they are not now, even after Dobbs.
In the centuries before Roe, states did not typically criminalize abortion, until legislators (all male) responded to advocacy from physicians (again, male, though joined at times by women advocating for temperance and an end to husband‑against‑wife violence) urging criminalization in the mid‑to‑late 1800s.[40] Even then, the common law did not subject women who had abortions to criminal liability.[41] That common law understanding informed appellate courts’ rejection of efforts to criminalize women for ending their own pregnancies[42] and was reflected in state statutes. Only a minority of states ever made self‑managing abortion a crime.[43]
Since the late 1990s, the use of safe and effective abortion medications (mifepristone and misoprostol, or misoprostol alone) to self‑manage abortion has risen in the United States and around the world.[44] In the 2010s, courts and legislatures in the United States began rejecting the outlier notion that self‑managed abortion should be criminalized.[45] In 2015, in response to a lawsuit against the State of Idaho brought by a mother of three who was criminally charged with (but not prosecuted for) a felony for ending her pregnancy with pills obtained online, the Ninth Circuit Court of Appeals permanently enjoined Idaho’s pre‑Roe self‑managed abortion crime.[46] As of 2017, only seven states (including Idaho) retained statutes that criminalized people for ending their own pregnancies.[47] As of 2026, only Nevada still purports to criminalize self‑managed abortion.[48]
Despite the pre‑Roe common law prohibition on criminalizing women who had abortions, and the strong opposition of the public today to criminalizing people for having abortions, miscarriages, or stillbirths,[49] law enforcement actors continue to investigate, arrest, and prosecute people who self‑manage abortion or who experience a pregnancy loss.[50] In addition to the sixty‑one documented prosecutions from 2000 to 2020, If/When/How’s litigation team represents or consults with local defense counsel on behalf of numerous people who have been criminalized since 2020—both prior to and since Dobbs—for self‑managing an abortion, helping someone else do so, or experiencing a pregnancy loss that was characterized by prosecutors as an intentional pregnancy termination.[51] Why law enforcement continues to target people in the face of both legal spuriousness and public opposition to criminalization is best explained by the relentless use of the criminal legal system to address social concerns, informed by bias, abortion stigma, and lack of awareness of modern self‑managed abortion.
Self‑Managed Abortion and Criminalization
Background: Understanding Modern Self‑Managed Abortion
Even those who do not oppose abortion generally may believe that self‑managed abortion is dangerous and therefore is or should be illegal.[52] This belief is informed by both the emphasis by abortion rights proponents on the dangers of “back alley” or “coat‑hanger” abortions to women’s lives in the pre‑Roe era[53] and the marginalization of historical practices of self‑ and community‑based health care.[54] Self‑managed abortion is a practice as old as pregnancy itself, but the advent of safe and effective abortion pills, obtained easily and used discreetly, has made self‑managed abortion more common, sought‑after, and safer, even in settings where abortion is legally protected and available.[55] For example, a 2018 study documented 210,000 internet searches in the United States for self‑managed abortion information in a one‑month period.[56] Post‑Dobbs, interest in self‑managed abortion was even more pronounced. Rates of requests to international nonprofits that prescribe medication to self‑manage abortion soared immediately after Dobbs was decided, with the largest increase in requests coming from people living in states that banned abortion.[57] Researchers estimate that in the six months after Dobbs, provision of medication to self‑manage abortion rose significantly, totaling an additional 26,055 over pre‑Dobbs levels.[58] All told, 10.7 percent of U.S. women will attempt to self‑manage an abortion during their lifetimes.[59]
People’s reasons for self‑managing abortions vary. Many face barriers to clinic‑based abortion care, such as distance to a clinic, financial challenges, or availability of childcare.[60] One in eight people seeking abortion care considers a self‑managed abortion before going to a clinic, often because a clinic is inaccessible.[61] Others may self‑manage because of stigma related to the circumstances of the pregnancy or to having an abortion, to have a more private experience, or to avoid detection by an abusive partner.[62]
Regardless of reason, self‑managed abortion is not typically a crime in any state in the United States. The patterns of self‑managed abortion criminalization help explain why these prosecutions happen in spite of the law.
Nature of Self‑Managed Abortion Criminalization
Investigations and prosecutions involving self‑managed abortion and pregnancy loss tend to proceed in very specific ways. People come to the attention of police typically because a health care provider or someone else reports them to the police. Frequently, police question them at their hospital bedside, without a lawyer present and without Mirandizing them, sometimes when they are still under sedation.[63] In other cases, police arrest individuals without follow‑up care, questioning them at a police station or while in jail even while they are still bleeding.[64] Responses, statements, and demeanor that do not comport with their interrogators’ expectations of how a bereaved “mother” should behave are catalogued and repeated at trial as proof of criminal intent.[65] Law enforcement’s focus on the person who self‑managed or lost a pregnancy as a perpetrator, and the fetus as a victim, persists even when investigations reveal evidence that the pregnant person was violently victimized.[66]
People who self‑manage later in pregnancy are more likely to be investigated, arrested, and criminally charged. How a person chooses to handle miscarriage or fetal remains after they experience a pregnancy loss or self‑manage abortion is not dictated by law. Nonetheless, how the pregnant person handled the fetal remains after their self‑managed abortion or a pregnancy loss perceived by investigators as intentional is a common justification for arrest or criminal charges.[67]
Patterns of Self‑Managed Abortion Criminalization
Although thousands of people in the United States have self‑managed abortions, the majority of them are never criminalized. Why one person faces investigation, interrogation, arrest, prosecution, conviction, and punishment when others in the same situation do not reflects the same patterns seen in U.S. criminalization generally: State actors and hospital staff with enormous discretion make decisions—decisions that are often flagrantly discriminatory—to report and criminalize people who occupy stigmatized statuses in the United States.
Discrimination
Among those who self‑manage—and among the even larger number of people who miscarry or have stillbirths—criminalization is not universal. Rather, prosecutions of people who experience pregnancy loss or end their own pregnancies reflect prevailing disparities in the criminal legal system.[68] Economic status and racial identity are key vectors for criminalization. Black women are overrepresented in pregnancy and self‑managed abortion criminalization.[69] And every study of pregnancy criminalization to date has found that the vast majority of people criminalized were living in poverty or near poverty.[70]
Surveillance and Reporting by Health Care Providers
Targeted surveillance and policing of communities, particularly Black communities, are well‑known contributors to the racial disparities in arrest and incarceration in the United States.[71] Increasingly, state actors use technology to police people in ways that deepen race‑based criminalization.[72]
Given the breakneck speed at which technology has ensured ever‑greater corporate and government access to private information, it is understandable that public fear and attention post‑Dobbs focused on the ways people might inadvertently come to the attention of law enforcement through their use of technology. Many in the media speculated about the potential use of geolocation information, or mining people’s data from period tracking apps, to monitor and criminalize people who have abortions.[73]
To date, however, self‑managed abortion criminalization has rarely come about because of pre‑investigation data surveillance or data collection.[74] Rather, people come to the attention of law enforcement the old‑fashioned way: Someone—a health care provider, a family member, an intimate partner—who knows about the self‑managed abortion reports the person to the police.[75] As If/When/How cautions in a recent report, “think trust, not tech.”[76] Nearly half of the people criminalized for self‑managed abortion between 2000 and 2020 were reported to the police by care providers—primarily doctors, nurses, other emergency room staff, and hospital social workers.[77]
People are often surprised to learn that private health care information is so readily reported to the police in the context of self‑managed abortion care. They are right to be surprised; such reports likely constitute a violation of the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy Rule.[78] But hospitals becoming sites of criminalization is not unique to people who seek care after a pregnancy loss or a self‑managed abortion. As a report from Interrupting Criminalization explains, modern hospital care involves the threat of police action and surveillance at many points at which people seek care—from security and surveillance upon arrival, to police presence in emergency rooms, to health care workers calling the police.[79] The tendency to turn to these systems—already present and ready to respond to emergencies as if they are crimes—is also informed by bias; research shows that health care workers are more than twice as likely to call security on Black patients as white patients.[80] These risks persist, leading major medical associations, including the American College of Obstetricians & Gynecologists, to regularly issue public statements opposing turning people into the police.[81] Those statements informed the Biden Administration’s enactment of regulations (currently enjoined) strengthening the HIPAA Privacy Rule’s protections for reproductive health care information.[82]
Discretion, Bias, and Criminalization
Like hospital staff and social workers, police and prosecutors have substantial discretion to determine whether someone who just lost a pregnancy or acted to end one will be punished for it.[83] Of course, all prosecutions involve the exercise of discretion. Pregnancy criminalization is unique, however, in that police and prosecutors frequently contort or defy the law to punish someone for their pregnancy outcome.[84]
To state that more plainly: There is no law save one in the whole of the United States that makes it a crime to end your own pregnancy, have a miscarriage, or have a stillbirth. That one law is an old, pre‑Roe statute in Nevada, and it is of questionable constitutionality under the current Nevada Constitution.[85] It was true pre‑Dobbs, and it is true now: The law simply does not authorize prosecution of pregnant or formerly pregnant people for self‑managed abortion.[86] Policymakers and courts continue to affirm that people who have abortions—self‑managed or otherwise—are not subject to criminal liability.[87] The legal risk to people who self‑manage abortion comes from the same sources today as it did when the abortion decision was a protected federal constitutional right—the misuse of laws never intended for this purpose, from “abuse of a corpse” to “manslaughter.” This misuse of the law works in tandem with the unique ways that bias, abortion stigma, and vulnerability to surveillance and arrest combine to expose people to the risk of criminalization.
In the absence of laws that criminalize people’s actions (or omissions) during pregnancy, prosecutors in these cases sometimes attempt to show that the accused person had a live birth and then took some action (or inaction) that was an intervening cause of death.[88] If prosecutors had facts to support such allegations, one would expect they would charge homicide. That they so often do not[89] indicates the mismatch between what the criminal law prohibits and what prosecutors seek to punish in these cases.
That mismatch between the criminal law and pregnancy loss and self‑managed abortion is why, when judges hear cases involving self‑managed abortion, charges are often dismissed or overturned on appeal.[90] But when juries decide, conviction is common.[91] As discussed in Part IV, infra, this can be understood as a manifestation of abortion stigma, and it is why evidence that focuses on the abortion, or lack of prenatal care, or substance use—in legal terms, irrelevant and prejudicial evidence—is so damaging.[92] Information that could help a jury better understand the situation, including the impact of intimate partner violence on a defendant’s actions leading up to and after the self‑managed abortion or pregnancy loss, is critical.
To help demonstrate the critical role of such evidence, we highlight two recent prosecutions (one before and one after Dobbs) of people who allegedly used abortion pills they obtained by mail. We limit our discussion to the public record in each and highlight these cases for the purposes of demonstrating how intimate partner violence is tied to pregnancy criminalization and why its consideration in criminal cases is a principled application of existing law on the admissibility of intimate partner violence evidence. The legal system’s treatment of these criminalized survivors reflects the persisting patterns of pregnancy criminalization—a phenomenon significantly less tied to the law than to the bias of discretionary actors, the identity of the accused, and the stigmatized status of abortion and pregnancy loss in the United States.[93]
Case Studies
State of Ohio v. Gillum[94]
This first case study[95] illustrates many of the patterns of pregnancy criminalization we described in the preceding Section. Importantly, it is also our starting place for discussing the role of intimate partner violence in criminal cases involving self‑managed abortion and pregnancy loss.
Kalina Gillum had her first child at the age of eighteen.[96] The father of Kalina’s child was her older boyfriend, Braden .[97] Evidence indicated that Braden abused Kalina throughout the relationship.[98] As a report authored by Dr. Karla Fischer, an expert in intimate partner violence, explained, Braden’s
use of violence against Kalina would place her in the highest category of risk for future lethality. This means that the domestic violence she experienced from Braden tracks the types of domestic violence known to be associated with higher future mortality. Some examples include: 1) increased frequency and severity of violence; 2) threatening to kill her and threatening her with a gun; 3) control over her daily activities[;] 4) strangulation; and 5) his jealousy, including his stalking of her while she was at work. The physical abuse escalated from pushing, grabbing, and slapping to punching and kicking.[99]
When their first child was three years old, Kalina became pregnant again.[100] On September 18, 2019, Kalina delivered an extremely premature baby while at home alone.[101] Bleeding profusely and in and out of consciousness, Kalina texted Braden while she was in labor and after delivering. In these texts, Kalina asked Braden for his help and described her condition and ultimately, the baby’s stillbirth.[102] After several hours during which Kalina pleaded with him to take her to the hospital, Braden finally did so.[103] Upon her arrival at the emergency room, Kalina had lost a significant amount of blood and still had the umbilical cord attached to her.[104] Kalina underwent emergency surgery, received two blood transfusions, and required medication to address her pain.[105] Hospital staff contacted the police.[106]
While she was in the hospital and still under sedation, police detectives interrogated Kalina twice without giving her Miranda warnings.[107] She did not have an attorney and, given that she was sedated and tethered to an IV, had no opportunity to speak to one.[108] Without obtaining a warrant, a detective asked for her cell phone and access to it. Kalina gave the detective her phone and passcode “voluntarily.”[109] Shortly after a detective interrogated Kalina and questioned Braden at the hospital, law enforcement and emergency medical personnel searched the couple’s home.[110] Police found the baby’s body there, wrapped in towels and inside a shoebox.[111] The coroner later confirmed that the baby, who Kalina named Cayden, had been stillborn.[112]
The State of Ohio charged Kalina with involuntary manslaughter, child endangerment, tampering with evidence, and abuse of a corpse.[113] She was arrested and served four months in jail during the COVID‑19 pandemic.[114] Despite what her attorneys argued was a flawed indictment based on irrelevant evidence,[115] the trial judge allowed the case to go forward.[116]
However, the trial judge did grant the defense pretrial motion to exclude any evidence or allegations that Kalina ordered, took, or considered taking abortion pills.[117] As her lawyers argued,[118] under Ohio law, a pregnant person cannot be criminalized for their own acts or omissions during pregnancy, whether or not those actions lead to fetal or perinatal death.[119] Therefore, any actions taken during pregnancy, including considering or using abortion medications, were irrelevant and thus inadmissible under Evidence Rule 402. Prosecutors insisted that they be permitted to introduce this evidence under Evidence Rule 404, to prove a “plan” to commit the crimes with which Kalina was charged.[120] Kalina’s lawyers countered that not only was this evidence irrelevant but it was highly prejudicial because of abortion stigma and thus must be excluded under Evidence Rule 403.[121] The trial judge granted Kalina’s motion on the basis of prejudice.[122]
Unable to criminalize Kalina for the act of ordering abortion pills and losing a pregnancy (whether caused by the pills or not), the State argued instead at trial that her baby was not, in fact, stillborn, and that her failure to call 911 immediately constituted involuntary manslaughter and endangering a child.[123] The county coroner, as well as an expert forensic pathologist called by the defense, testified that the baby was stillborn.[124] Over defense counsel’s objection, the judge allowed a neonatologist to testify that he could tell from a photo of the baby’s body that Kalina had taken on her cell phone that the baby took a breath at birth.[125]
The State also argued that although Kalina had wrapped her deceased baby’s body in towels and then crawled into her bed, hemorrhaging from childbirth, she was criminally liable for “abuse of a corpse” for Braden putting her baby’s body in a plastic bag and then in a shoebox.[126] Kalina was also charged with tampering with evidence for deleting text messages on her phone after going to the hospital.[127] At the close of the State’s case, the judge granted the defense motion for judgment of acquittal on the involuntary manslaughter charge but denied the motion as to the other charges.[128]
At trial, Kalina’s attorneys planned to put on evidence that Braden had abused Kalina and to introduce testimony from Dr. Karla Fischer on how that abuse would have influenced Kalina’s decision‑making and reactions during and after the stillbirth.[129] Under Ohio law, evidence of a criminal defendant’s experience of intimate partner violence is admissible, both to prove self‑defense and for other reasons.[130] For example, trial courts admit such testimony to help jurors understand crime victims’ actions and why a victim of intimate partner violence might recant.[131] Such testimony is admissible for Ohio defendants even when not claiming self‑defense.[132]
Nonetheless, prosecutors moved to exclude expert testimony on the impact of intimate partner violence on Kalina, arguing that a defendant in a criminal case in Ohio could present testimony about their victimization only to support a claim of self‑defense.[133] In a pretrial hearing at which he reserved his ruling, and again at the close of the State’s case, the trial judge accepted this argument, reasoning that “[g]enerally speaking, battered women’s defense is only recognized . . . as a defense in the use of force against another person, or in a self‑defense context, or in the defense of another situation.”[134] The trial judge did not permit Dr. Fischer to testify; thus, the jury never heard that Kalina had suffered intimate partner violence or how it had affected her at the time of the stillbirth and the events after.[135]
Ultimately, the jury convicted Kalina of endangering a child, tampering with evidence, and abuse of a corpse.[136] Prior to sentencing, Kalina’s attorneys submitted a comprehensive report from Dr. Fischer detailing the abuse Kalina suffered and providing expert testimony as to how that abuse would have affected Kalina throughout her relationship with Braden and during the events leading up to her arrest and prosecution.[137] Prosecutors did not rebut that evidence, arguing instead that Kalina had used abortion pills (an act that is protected from prosecution under Ohio law and, as explained above, was kept from the jury by the trial court’s ruling in limine) and acted purposefully, and asked the judge to sentence her to seven years in prison.[138] After asking the prosecutor to confirm that the State had not sought nearly such a long term of incarceration for Braden, who pled guilty to endangering a child and abuse of a corpse,[139] the judge imposed no jail time at all, sentencing Kalina to three years probation and one hundred hours of community service.[140] The judge explained that his sentencing decision was influenced by the information about intimate partner violence provided in Dr. Fischer’s report: “[F]rankly, the information . . . [and] the expert on domestic partner violence was compelling to me. [It’s n]ot a defense. The jury didn’t hear a lot of that. But it certainly puts a lot of this behavior in perspective.”[141]
On appeal, Kalina raised several issues and urged reversal of her conviction. Most relevant to this Article, Kalina argued on appeal that the trial court misapprehended the purpose for admitting evidence of intimate partner violence and misconstrued Ohio caselaw allowing such evidence in circumstances well beyond the self‑defense context.[142] The Court of Appeals affirmed Kalina’s convictions and did not address the intimate partner violence evidence argument, ruling, in essence, that her lawyers had not properly preserved the issue for appeal.[143] While Kalina petitioned for review to the Ohio Supreme Court, she did not seek review of the ruling on intimate partner violence evidence.[144] Ultimately, over two dissents, the Ohio Supreme Court denied Kalina’s petition for review.[145]
As Kalina’s lawyers argued in their appeal, when the judge fully considered the lengthy and grim history of intimate partner violence that Kalina’s codefendant had perpetrated against her throughout their relationship, it significantly influenced his sentencing decision, leading him to entirely reject prosecutors’ request for imprisonment. While the trial judge took the evidence seriously throughout the case, he misapplied Ohio law when he reasoned that such evidence cannot be heard by a jury unless it is a self‑defense case. Given the effect that evidence had on the judge, the jury should have had the opportunity to consider it as well.[146]
In our next case study, the trial judge issued a similarly incorrect ruling on domestic violence evidence and, unlike the court in State v. Gillum, seemed to reject the evidence entirely. It took an appellate court’s review for the evidence that an adult man had abused a teenager to make a difference in her criminalization for a self‑managed abortion.
Minor Child v. State of Arkansas[147]
On June 24, 2022, after the U.S. Supreme Court decided Dobbs, the Arkansas Attorney General announced that Arkansas would begin enforcing its abortion ban.[148] In September of that year, a seventeen‑year‑old, known in sealed court records as “A Minor Child” (hereinafter “MC”), allegedly took abortion pills ordered online to end a pregnancy.[149] Like Kalina Gillum, MC was ostensibly criminalized for what she did (or did not do). MC’s pregnancy led to a proceeding where prosecutors insisted that using abortion pills was evidence of criminal culpability.[150] And like Kalina Gillum, MC’s pregnancy, her pregnancy outcome, and her subsequent criminalization were intertwined with her victimization at the hands of an intimate partner.
MC, who lived in Illinois with her parents, met a man named Matthew Hallmark online during the COVID‑19 pandemic.[151] She was fourteen years old. Just after she turned fifteen, she left Illinois with Hallmark to live with him and his mother in Arkansas.[152] Her parents did not want her to go, but they allowed MC to leave with Hallmark nonetheless.[153]
Over the course of their relationship, Hallmark abused MC. Dr. Karla Fischer, the same expert on intimate partner violence who provided a report in Kalina Gillum’s case, wrote a report on MC’s experiences of intimate partner violence by Hallmark and testified at a hearing both about the abuse and, generally, the impact of violence and trauma on decision‑making for survivors of intimate partner violence.[154] The appellate decision in MC’s case—the only publicly available information about it—does not detail Dr. Fischer’s report, but the appellate court accepted as fact that MC was abused.[155]
Although many adults could have taken steps to protect MC, no one intervened. At one point, Arkansas child welfare authorities came to the trailer where MC lived with Hallmark and his family after a report expressed concern for her welfare.[156] Despite seeing a video of MC that suggested she had been abused, and observing concerning conditions in her living situation, they accepted her denial that she was in danger and did not intervene.[157]
MC discussed her pregnancy with a friend and texted with that friend about taking abortion pills to end her pregnancy while alone in the trailer.[158] She texted that she was shocked at the pain and then shocked that she was further along in her pregnancy than she had believed.[159] Ultimately, she delivered a baby that appeared to her to be breathing but did not survive, despite her attempts to revive the baby.[160] By this time, Hallmark had returned home. MC swaddled the baby’s body in her T‑shirt and handed him to Hallmark.[161] The friend with whom MC had been texting then called the police.[162]
Police arrived and arrested MC.[163] They took her directly to an interrogation room, still bleeding from delivery.[164] After they read her Miranda rights, MC asked for a lawyer.[165] Without giving a statement, MC was put in juvenile detention and held without bond; no charges were filed at that time.[166]
MC’s counsel sought her release from detention.[167] By that time, and in violation of Arkansas law, MC had been held in juvenile detention for more than thirty days without charges.[168] At the hearing on the motion, the prosecutor, at the judge’s suggestion, charged MC as an adult with felony abuse of a corpse.[169] The charge was based on allegations that Hallmark had put the deceased newborn’s body in a dumpster.[170]
MC’s counsel moved to transfer the case back to juvenile court.[171] In Arkansas, the juvenile transfer statute mandates that the trial court evaluate ten factors to determine whether a defendant should be transferred to juvenile court or face adult charges.[172] During the hearing on the transfer motion, prosecutors sought to prove, among other things, that MC should be tried as an adult because: (1) She had left home and lived with her boyfriend; (2) she took abortion pills; and (3) the crime of “abuse of a corpse” was a crime of violence.[173]
Among other witnesses, the defense called Dr. Fischer to testify as to her evaluation of MC and about the impact of intimate partner violence victimization on adolescent decision‑making.[174] Although the judge allowed Dr. Fischer to testify, he refused to admit or consider her expert report and found her testimony “not credible.”[175]
Disregarding the abuse MC suffered, the trial judge ruled that MC did not qualify for transfer back to the juvenile division and should be tried as an adult.[176] In making that ruling, the trial court asserted that the offense was “violent, premeditated, and willful”; that MC planned and participated in the “crime”; and that MC had essentially been living as an adult without the control or oversight of a parent for two years prior to the crime.[177] An Arkansas appellate court reversed.[178]
As the appeals court explained, the evidence did not support the trial court’s conclusions on the juvenile transfer factors.[179] Among other points, the court rejected the State’s argument that the use of abortion pills showed that MC “planned, participated, and committed the offense [abuse of a corpse] in a premediated, willful, and violent manner,” reasoning that use of abortion pills was irrelevant to whether someone would commit the crime of “abuse of a corpse.”[180] The court further held that basing adult prosecution on the taking of abortion pills violated the Arkansas legislature’s clear prohibition of prosecuting a person for having an abortion.[181] Finally, the appeals court specifically recognized the importance of evidence regarding intimate partner violence to an evaluation of a young person’s “psychological welfare and development,” and, in this case, an understanding of the impact of such violence on MC.[182]
Because of the unusual nature of this case—a decision to charge an adolescent who self‑managed abortion as an adult, which led to an interlocutory appeal—MC had an opportunity that Kalina Gillum did not: a chance for judges to really consider intimate partner violence evidence before the case ever went to trial. And yet, that procedural posture also prevented a more comprehensive ruling on why evidence of intimate partner violence is so important in cases where people are criminalized for experiences of miscarriage, stillbirth, and self‑managed abortion.
Admissibility of Intimate Partner Violence Evidence
The failure to allow the introduction of intimate partner violence evidence in such cases is puzzling given that this evidence has been deemed admissible in many other contexts. Since the 1980s, courts and legislatures have created pathways for criminalized survivors of violence to present evidence about intimate partner violence in their criminal cases. At their inception, those efforts were directly related to the cases of people who had killed abusive partners in self‑defense. Over time, however, courts and legislatures have recognized that evidence regarding intimate partner violence is relevant in a variety of situations. The law has developed accordingly, enabling victims of violence to seek to introduce evidence through statutes specific to intimate partner violence and through general criminal statutes. Such evidence can also be introduced to rebut prosecution arguments regarding mens rea, when victims are unavailable or recant their testimony, and when victims’ credibility is challenged.
Battered Woman Syndrome Evidence
Before 1979, evidence of domestic violence was rarely, if ever, admitted in criminal cases. That changed with the publication of Dr. Lenore Walker’s 1979 book, The Battered Woman.[183] Dr. Walker’s work formed the basis for state laws that allowed for the introduction of expert testimony on battered woman syndrome.[184] By the early 1990s, most courts permitted the introduction of expert testimony on battered woman syndrome to bolster claims of self‑defense.[185] Although some states have moved away from the gendered term “battered woman syndrome” in favor of “battered spouse syndrome,” the content of these statutes remains largely the same.[186] Missouri’s statute is illustrative: “Evidence that the actor was suffering from the battered spouse syndrome shall be admissible upon the issue of whether the actor lawfully acted in self‑defense or defense of another.”[187] Even in those states that do not use the syndrome language, the basic idea—that courts can consider evidence of intimate partner violence in cases involving self‑defense—remains the same.[188] Indeed, introduction of evidence of battered spouse syndrome has become so commonplace that the failure to introduce such evidence can be the basis for a successful ineffective assistance of counsel claim.[189]
Federal Rule of Evidence 404 allows the defendant in a criminal case to offer evidence of a victim’s “pertinent trait,” including their propensity for violence, to prove that the victim was the primary aggressor or to establish the reasonableness of the defendant’s belief that the victim was about to do immediate, serious harm to the defendant.[190] In United States v. James, for example, the United States Court of Appeals for the Ninth Circuit held that Ernestine James should have been permitted under Rule 404 to introduce evidence of violence committed by her boyfriend, David Ogden, to corroborate both her testimony about the vicious acts he had committed and her assertion that she was afraid for her and her daughter’s lives as a result of these acts.[191] A number of states have analogous laws.[192]
Intimate Partner Violence Evidence in Criminal Cases Generally
States have also enacted statutes authorizing the admission of evidence of intimate partner violence in criminal cases more generally so long as that evidence meets the basic requirements of relevance and reliability. Nevada law makes evidence of intimate partner violence admissible “in a criminal proceeding for any relevant purpose.”[193] California created a limited hearsay exception for statements describing the threat or infliction of violence against the declarant if the declarant is unavailable, the statement was made at or near the time of the threat or injury, and the statement was made in writing, electronically, or to particular classes of individuals.[194]
Some states also generally authorize the introduction of expert testimony about intimate partner violence. For example, California law permits the introduction of expert testimony on intimate partner violence in any criminal action so long as the evidence is relevant and the expert is qualified.[195] Ohio has established a similar provision through caselaw.[196]
Mens Rea
Supporting a claim of self‑defense is the classic justification for the admission of expert testimony on intimate partner violence. But such evidence has been admitted in a variety of other contexts as well. For example, evidence about intimate partner violence can be used to rebut prosecution evidence offered to show the defendant’s mens rea. Such evidence is often associated with a duress defense.[197] Evidence of domestic violence has been offered to challenge mens rea in cases involving a defendant’s failure to protect her children from her partner’s abuse;[198] challenging whether the defendant aided and abetted a kidnapping that culminated in murder;[199] arguing that the defendant had engaged in a conspiracy to possess and distribute controlled substances[200] and wire fraud;[201] and alleging welfare fraud.[202]
While prosecutors strongly oppose the introduction of evidence of intimate partner violence in cases involving criminalized survivors, they are quick to offer such evidence in their own cases. Indeed, prosecutors frequently rely on evidence of intimate partner violence in criminal trials to address a victim’s unavailability, recantation, and credibility.[203]
Victims of intimate partner violence are thought to be uniquely unwilling to participate in prosecuting their partners. Scholarship on intimate partner violence frequently asserts that most victims of violence are “uncooperative” with prosecutors.[204] When victims are unwilling to testify, prosecutors use unavailability hearsay exceptions to introduce their statements.[205] Prosecutors rely both on traditional hearsay exceptions (like excited utterances, present sense impressions, or statements for the purpose of medical diagnosis or treatment)[206] and special hearsay exceptions for domestic violence cases.[207] California law, for example, allows judges to admit a victim’s hearsay testimony about threats or the infliction of intimate partner violence when the victim is unavailable to testify.[208]
Some victims of violence refuse to participate from the outset of a case. Others may make an initial statement to police or prosecutors, only to recant that statement at a later point in the prosecution.[209] Recantation, like unwillingness to participate, is thought to be characteristic of survivors of violence.[210] When victims of violence recant their statements, prosecutors frequently seek to introduce evidence of intimate partner violence to explain victims’ behavior.[211]
In addition to recanting, some victims of violence testify on behalf of their partners. In those cases, prosecutors seek to undermine the credibility of their testimony by introducing evidence of intimate partner violence.[212] Such evidence has been deemed admissible to establish that “complainants are likely to lie to protect their abusive partners from punishment, themselves from future harm, and/or their relationship.”[213]
When prosecutors need to explain a victim’s unavailability or unwillingness to participate in prosecution, they are quick to offer evidence of domestic violence, even when that evidence relies on outdated stereotypes of victims of violence as weak, meek, passive, and afraid.[214] When the victim is also the defendant, however, prosecutors—and judges—are far less willing to acknowledge their victimization.[215]
Reproductive Coercion and Abortion
The unwillingness of judges to admit evidence of intimate partner violence would not matter so much if intimate partner violence was not such an integral part of self‑managed abortion cases. But reproductive health care, specifically abortion, and intimate partner violence are often intertwined. Particularly post‑Dobbs, abortion has become a vector for abuse.
Violence in Pregnancy
Intimate partner violence and pregnancy are connected in a variety of ways. Abuse often begins or intensifies during pregnancy.[216] Intimate partner violence has been linked to unwanted pregnancy.[217] The risk of violence is greater if the pregnancy is unintended.[218] Low birth weight, premature delivery, and death of the fetus are all associated with violence during pregnancy.[219] Pregnancy also increases the risk of extreme violence and homicide.[220] Intimate partner violence is among the leading causes of death for pregnant people.[221]
Pregnancy may also make it more difficult to leave an abusive relationship. In a study of 954 women who sought abortions, 8 percent reported having abusive partners; some feared that their pregnancy would prevent them from ending the relationship or keep them tied to their partners.[222] Research bears this fear out: Pregnancy or having a child with an abusive partner enables that partner to increase their control over the pregnant person’s access to health care and work and to use children as a barrier to exit.[223]
Reproductive Coercion
Violence during pregnancy is part of a larger complex of behaviors known as reproductive coercion. The National Domestic Violence Hotline and If/When/How define reproductive coercion as “the use of violence, sexual assault, manipulation, birth control sabotage, threats, and other means by an intimate partner to force or coerce pregnancy or a pregnancy outcome.”[224] Examples of birth control sabotage include denying a partner money to buy contraceptives; hiding, withholding, destroying, or otherwise preventing a person from taking birth control pills; tearing, biting, or poking holes in a condom; “stealthing” (removing a condom during sex without notifying the other person); or destroying a contraceptive ring, contraceptive patch, or IUD.[225] Pregnancy coercion can include threats to impregnate, threats or physical violence if a person attempts to use contraception, refusing to use or to allow a partner to use contraception, and close monitoring of a partner’s menstrual cycle.[226]
Reproductive coercion is common. General population studies have found that between 8 and 16 percent of people report being subjected to reproductive coercion.[227] A 2024 survey conducted by the National Domestic Violence Hotline and If/When/How found that 63 percent of all respondents and 76 percent of those who said they had experienced intimate partner violence had been pressured or forced to engage in sexual activity.[228] Thirty‑nine percent said they had been threatened by a partner when they refused sexual activity.[229] Twenty‑three percent reported that a partner had pressured them to become pregnant, and 13 percent reported that their partners had used or threatened to use violence against them to end their pregnancy.[230] Of the respondents who had previously experienced intimate partner violence, 40 percent identified as victims of reproductive coercion.[231] More than 20 percent said their partners had tried to stop them from using birth control.[232] Although reproductive coercion is widespread, some groups experience it disproportionately. Rates of reproductive coercion are higher among women of color,[233] younger women,[234] and women with less education.[235]
While some have argued that women who experience reproductive coercion are more likely to be subjected to intimate partner violence and vice versa,[236] it makes more sense to understand reproductive coercion as a form of intimate partner violence than a separate phenomenon. Reproductive coercion fits squarely within sociologist Evan Stark’s definition of coercive control.[237] Stark describes coercive control as “a course of calculated, malevolent conduct deployed almost exclusively by men to dominate individual women by interweaving repeated physical abuse with three equally important tactics: intimidation, isolation, and control.”[238] The crux of coercive control, Stark argues, is not physical violence but the interference with and deprivation of a person’s liberty and autonomy.[239] That loss of autonomy can come in a variety of forms—including the imposition of an unwanted pregnancy on a partner.[240] Nonetheless, most state laws do not recognize reproductive coercion as an independently actionable form of intimate partner violence.[241]
Abortion and Intimate Partner Violence
Studies find that between 6 and 22 percent of women who have abortions report recent intimate partner violence.[242] That violence occurs before and during pregnancy and involves both physical and psychological harm.[243] Moreover, men who use violence are more likely to be part of pregnancies that are terminated through abortion.[244] Intimate partner violence motivates people to seek abortions. Abortions are often tied to reproductive coercion—people need abortions as a result of forced sex, birth control sabotage, and pregnancy coercion.[245] Even for people who are not experiencing reproductive coercion, intimate partner violence may motivate the decision to terminate a pregnancy to avoid having a child exposed to intimate partner violence, for example, or out of fear that having a child might foreclose the possibility of leaving the violent relationship.[246]
Seeking an abortion can be understood as an assertion of autonomy—a way of taking decisive action to end an abusive relationship that a person might have continued if the parties had a child in common.[247] And having an abortion can be protective: Abortions are associated with reductions in physical violence from and less contact with the men involved in those pregnancies.[248] Conversely, restricting access to abortion correlates with increased rates of intimate partner violence.[249]
Intimate partner violence may also occur as a result of seeking an abortion. Pressure, coercion, and threats to harm or kill the pregnant person if they seek an abortion are common. For example, one woman was eighteen and in an abusive relationship when her partner impregnated her against her wishes: “He really wanted the baby—he wouldn’t let me have—he always said, ‘If I find out you have an abortion,’ you know what I mean, ‘I’m gonna kill you,’ and so I really was forced into having my son.”[250]
People choose to self‑manage abortions as a result of intimate partner violence.[251] Self‑managed care may enable a person to end a pregnancy without the knowledge or interference of a partner who would otherwise seek to block the procedure. Because it can happen in the home, self‑managed care obviates the need for an explanation about why someone is seeking care (particularly in states that require counseling, multiple appointments, and waiting periods between those appointments).[252] And self‑managed abortion is cheaper than other forms of care, making it more accessible for a person whose finances are surveilled or controlled by an abusive partner.[253]
Criminalization of Abortion as a Vector for Intimate Partner Violence
Abortions can make people experiencing intimate partner violence safer.[254] Not surprisingly, then, criminalizing abortion makes people less safe, in a variety of ways. Carrying an unwanted pregnancy to term exposes the pregnant person to physical violence and makes it less likely that they will end the relationship with the other parent, even when that person has been abusive.[255] Being forced to have children may deepen a person’s financial dependence on a partner, creating a significant obstacle to leaving.[256] Leaving an abusive partner when there are children involved is also much harder because of the need to be involved in what can be lengthy and expensive divorce, child custody, and child support proceedings.[257]
Criminalization of abortion also provides people who abuse with a powerful weapon to control their partners.[258] People calling If/When/How’s Repro Legal Helpline before Dobbs expressed concern that their partners would use their abortions against them:
Since Dobbs, the frequency of these calls has increased, as have the specificity of the threats that people describe to us: calling the police on family members who help them access abortion in any way; claiming it is a crime to leave the state or that the abuser must consent to the abortion . . . .[259]
A Texas man, for example, sued his ex‑wife’s friends alleging that they had helped her obtain abortion pills; he used the suit to harass his ex‑wife via subpoena.[260] A second Texas man sought to prevent his former partner from traveling to Colorado to obtain an abortion, threatening that he would bring a wrongful death suit against anyone who assisted in the abortion.[261] Furthermore, the antiabortion group Texas Right to Life has recently begun an advertising campaign to recruit the partners of those who have had abortions to file lawsuits against anyone who assists a person in ending a pregnancy.[262]
Pregnant people describe partners threatening to report them to police or other legal authorities, including the family policing[263] or immigration systems, if they seek or have abortions.[264] The danger that those systems pose to pregnant people—deportation and termination of parental rights—are acute.[265] Pregnant people of color have particularly strong reasons to fear such reports, because people of color are particularly vulnerable to negative interactions with these systems.[266] For example, Black children are disproportionately represented in the family policing system,[267] and racial profiling has long been a problem in immigration enforcement.[268] Knowing that these systems are especially likely to respond punitively to reports involving people of color creates a significant risk for pregnant people of color considering abortions, a risk that has only increased since the Supreme Court decided Dobbs.
Abortion and Intimate Partner Violence Post‑Dobbs
After the Supreme Court overruled Roe v. Wade, finding that the federal Constitution does not protect the right to abortion and sending the issue of abortion regulation to the states in Dobbs in June 2022, some states quickly criminalized abortion. In other states, no action was needed to criminalize. These states had passed “trigger laws” which automatically outlawed abortion as soon as Roe was overturned.[269] Other states moved to outlaw abortion immediately after conception or at a certain number of weeks or under certain conditions.[270] A few states have sought to criminalize people who help others obtain abortions.[271] Louisiana even reclassified the drugs used in self‑managed abortions as controlled substances, criminalizing their possession for anyone other than the pregnant person.[272]
The impact of these changes to the law was felt almost immediately. Calls to If/When/How’s Repro Legal Helpline increased by tenfold the day Dobbs was released, with most callers asking about states where abortion has traditionally been restricted, where the laws changed in response to Dobbs, and where reproductive healthcare is less accessible.[273] If/When/How’s 2024 Repro Legal Helpline report noted “the fear and panic we hear in people’s voices every day” as they called with these inquiries.[274]
Professor of Obstetrics, Gynecology, and Reproductive Sciences Sarah Roberts posited that abortion bans would correspond with an increase in abuse during pregnancy, a problem exacerbated by the inability to travel covertly if necessary to secure an abortion.[275] Abusive partners can use information about a person’s intention to have an abortion or a past abortion to control and coerce them. Using a stalkerware application installed on a partner’s phone, for example, a person might learn that their partner searched for information about abortion clinics, discussed their reproductive health with medical providers, or purchased abortion drugs.[276] There are lower‑tech methods of surveillance as well: Abusive partners may access someone’s phone and read their text exchanges discussing a pregnancy or the need for reproductive health care.[277] Supplied with that information, a person might threaten to disclose to law enforcement that their partner sought or had an abortion unless their partner complies with their demands.[278] An individual might also decide to bring suit to investigate whether a partner sought an abortion and threaten legal action against anyone who helped the partner to illegally procure that abortion.[279] People living with economic insecurity are at particular risk as a result of abortion criminalization.[280] Subsequent research supports Dr. Roberts’s intuition; a recent study found that abortion restrictions post‑Dobbs have increased rates of intimate partner violence by 7 to 10 percent, or at least nine thousand additional incidents of violence.[281]
Intimate partner violence and abortion are deeply interconnected, yet judges are often reluctant or unable to make that connection. Existing statutes and caselaw enable defendants to offer evidence of intimate partner violence in cases involving self‑managed abortion. But doctrine may not be what prevents judges from seeing defendants in self‑managed abortion cases as victims of violence. The problem may be abortion stigma.
Abortion Stigma
Stigma is a social phenomenon that, among other components, includes negative stereotypes associated with a particular group.[282] When people are criminalized for their status,[283] rather than for their actions, this is a manifestation of stigma.[284] While other negative stereotypes (racial and gendered, in particular) also inform pregnancy criminalization,[285] in self‑managed abortion cases, abortion stigma plays a particular role.
Understanding Abortion Stigma
Post‑Dobbs, surveys continued to show that a majority of people in the United States did not oppose abortion and, in fact, believe it should be protected by law.[286] But attempts to equate abortion with criminality have not abated.[287] These efforts contribute to the stigmatized status of people who have abortions,[288] even when they are not the targets of criminal law.
Abortion stigma ascribes “negative attribute[s] . . . to women who seek to terminate a pregnancy that marks them . . . as inferior to ideals of womanhood.”[289] Despite abortion’s legal status, people who have abortions are frequently stigmatized or fear such stigma.[290] Stigma, or fear of it, is heightened for some because of their or their family’s religious beliefs.[291] Religious background, abortion stigma, and gender stereotypes thus interact to inform beliefs that a woman’s primary role is motherhood, and that, therefore, abortion should be banned or criminalized.[292] Abortion bans, in turn, contribute to stigma by exceptionalizing abortion as something that is uniquely unsafe (although abortion is not unsafe) and therefore wrong and harmful.[293]
The political climate post‑Dobbs has intensified the conflation of criminality with abortion. There is a general misunderstanding in the United States that laws banning abortion also make it a crime to have one. In fact, not one abortion ban explicitly does so. Of the states enforcing such bans as of November 2024, all exclude people who have abortions from criminal punishment.[294] The exemption of the person who has an abortion from explicit legal threat is mirrored in civil laws that purport to allow any person to civilly sue anyone who provides or helps another person have an abortion.[295] Media reporting[296]—as well as well‑intentioned thought experiments among the legal profession[297]—misconstrue these bans as both civil and criminal, which contributes to the aura of illegality that taints those who seek to end their pregnancies and provokes hostility toward them.[298]
Abortion Stigma and Criminalization of Abortion and Pregnancy Loss
Courts generally recognize the highly stigmatizing nature of abortion‑related evidence. Most recently, in Akers v. State, the Maryland Supreme Court acknowledged the impact of abortion stigma when reversing a woman’s second‑degree murder conviction for experiencing a stillbirth.[299] As a Michigan appeals court explained when reversing admission of evidence that a defendant had abortions in a trial for first‑degree murder (unrelated to a pregnancy outcome), “[t]he existing strong and opposing attitudes concerning the issue of abortion clearly make any reference thereto potentially very prejudicial.”[300] A Florida appeals court, reversing the admission of abortion evidence in a prosecution of a woman for aggravated manslaughter of her premature infant, admonished:
[N]ot only is there no permissible relevance to the mother’s consideration of abortion to the legal issues at hand, but its only arguable relevance makes its admission all the more inappropriate: it is apparently the thought that a person who considers abortion is more likely to have killed the child not aborted.[301]
Yet prosecutors and other legal system actors continue to attempt to use abortion stigma to influence the outcome of cases to the detriment of the person who had an abortion. Lawyers have sought to admit evidence that a woman had an abortion as proof of her intent to commit a crime;[302] to undermine her credibility;[303] to justify her murder;[304] and to devalue her life.[305] Appellate courts generally reverse trial courts’ admission of such evidence because the stigma attached to having an abortion is so great that it can improperly influence the outcome of a case.[306] Although a decision to reverse the admission of such evidence on appeal may be a legal victory, it cannot reverse the effect of the violation of privacy that endures in media and published decisions long after the litigation is resolved.[307]
The negative impact of abortion stigma is arguably at its highest in cases involving pregnancy criminalization. In Bynum v. State, a woman who had taken misoprostol she obtained outside of the medical system to induce early labor and had a stillbirth was convicted of the crime of “concealing birth.”[308] After learning, over her attorney’s objection, that she had had a previous abortion and had used misoprostol to induce labor, the jury deliberated for only four minutes before convicting her. The judge imposed the maximum sentence allowed by law.[309] The appellate court reversed, holding that the trial judge should have excluded abortion evidence as it was not probative of whether a person would “conceal” a stillbirth and was manifestly prejudicial.[310]
Abortion Stigma and Intimate Partner Violence
Abortion stigma creates silence and shame around a common, normal experience.[311] In one study of conversations people had prior to having an abortion, researchers found that while most people do talk to someone about their abortion, many withhold that information from people in their social circles because of fear of judgment.[312] Abusive partners have always been able to weaponize these fears by threatening to tell others about a partner’s abortion or desire to have one.[313] Post‑Dobbs, those threats are backed by the power of state criminal bans and the stigma those bans create—even in the absence of any actual criminal liability for people who have abortions. Abusive partners are deploying that power. As one survivor told the National Domestic Violence Hotline, “the overturning [of] Roe v. Wade destroyed my sense of safety and my life.”[314]
Admissibility of Intimate Partner Violence Evidence in Self‑Managed Abortion Cases
Judicial reluctance to admit evidence of intimate partner violence in self‑managed abortion cases could be the result of doctrinal concerns, stereotyping of people who self‑manage their abortions that leads judges to discount their victimization, or a combination of the two. Regardless of what causes that reluctance, when that evidence illuminates the underlying issues in a case, it should be admitted.
Doctrinal Concerns
Judges might be unwilling to admit evidence of intimate partner violence because they believe that such evidence is not relevant. The bar for the admission of evidence on relevance grounds is relatively low but allows room for courts to exclude evidence for any number of reasons.[315] Courts may also believe that the admission of evidence of intimate partner violence is restricted in some way: for example, to situations where a person is acting in self‑defense or defense of another or to rehabilitate credibility.[316]
Evidence of intimate partner violence should be deemed relevant when it can enhance a finder of fact’s understanding of the defendant’s actions in a self‑managed abortion case—explaining the choices the defendant made in response to a threat or the defendant’s perception of the harm that might result from the failure to make those choices.[317]
In Gillum, for example, there was ample evidence that Braden Mull controlled and emotionally and physically abused Kalina Gillum.[318] Admitting that evidence through the testimony of an expert witness who could have explained the dynamics of intimate partner violence would have provided the jury with a basis for understanding Kalina’s text messages to Braden and helped the jury understand why she texted Braden rather than calling 911 after her stillbirth.[319] Such evidence could have contextualized any negative inferences the jury might have drawn from what they saw as Kalina’s failure to prevent Braden from placing their stillborn child inside a plastic bag in a shoebox or her complicity in his actions.[320] Indeed, the impact of that evidence on the trial judge was clear at sentencing.[321]
Similarly, in MC’s case, evidence of violence was directly relevant to the factors the judge should have weighed at MC’s transfer hearing. For example, the transfer statute required the court to consider “reports and other materials relating to . . . [MC’s] mental, physical, educational, and social history.”[322] Evidence of how MC’s boyfriend had sexually and physically abused her and isolated her from family and others was a significant part of her social history and was included in Dr. Fischer’s report.[323] In excluding Dr. Fischer’s report from evidence, the judge also failed to meaningfully consider the report’s explanation of how adolescents are particularly affected by intimate partner violence, a factor directly tied to MC’s mental health history.[324] The judge was also required to determine whether MC acted alone or was part of a group in the commission of the offense.[325] Again, understanding that MC had allegedly acted in concert with someone she had good reason to fear should have contributed to the trial court’s reasoning.
Intimate partner violence evidence could also be relevant to rebut the prosecution’s arguments about mens rea in a self‑managed abortion case. For example, a jury convicted Kalina of abuse of a corpse and tampering with evidence. The required mental state to find abuse of a corpse under Ohio law is recklessness.[326] The State alleged that Kalina’s text messages showed that she knew about Braden’s actions, and therefore she had the requisite reckless mens rea.[327] An expert on intimate partner violence would have been able to explain why Kalina’s texts demonstrated not recklessness, but rather fear of what Braden might do if she did not accede to his plan, given the history of violence in their relationship.[328]
Kalina was also convicted of tampering with evidence because she deleted Braden’s text messages about his plans to dispose of the fetus from her phone while she was receiving treatment after the stillbirth.[329] To establish tampering, the State was required to show that Kalina knew that an official proceeding was about to be or likely to be filed related to the stillbirth and that she purposefully deleted the text messages to prevent them from being available as evidence in that proceeding.[330] Expert testimony on intimate partner violence, however, could have undermined the prosecution’s contention that the messages were deleted to prevent them from being used in an official proceeding. Instead, those messages might have been deleted to prevent Braden from harming her if they were used against him, further demonstrating the impact of Braden’s abuse on Kalina’s decision‑making.
Intimate partner violence evidence is also relevant to credibility in cases involving self‑managed abortion. In Gillum, Braden was expected to testify against Kalina (although the prosecution ultimately did not put him on the stand).[331] Evidence from an intimate partner violence expert could have bolstered her credibility and rehabilitated her in the eyes of the finder of fact if Braden’s testimony had been detrimental to Kalina. Even in a state with restrictive evidence rules like Ohio,[332] the evidence of intimate partner violence could and should have been admitted.
Self‑Managed Abortion and Imperfect Victims
Judges might also be unwilling to admit evidence of intimate partner violence because they simply do not believe that the defendant is a victim. The criminal legal system is premised on a binary of victim and offender; there can only be one of each in a criminal case.[333] When victims become defendants in criminal proceedings, legal system actors may be unable to see their victimization because of their status in the case.[334] Moreover, judges may expect victims to act in conformity with stereotypes that portray them as feminine, helpless, afraid, and passive.[335] Claims of abuse by victims who demonstrate agency or express emotions other than fear may seem not credible.[336] Similarly, evidence that a victim has used illegal substances, engaged in sex work, or otherwise flouted the law or conventions of femininity can prevent defendants from being legible as victims. And in the context of pregnancy criminalization, the stigma of having sought an abortion or attempted to self‑manage an abortion may counteract or undermine a defendant’s story of victimization.[337]
If evidence of intimate partner violence in cases involving self‑managed abortions is excluded because of stigma or stereotype, however, judges must recognize that imperfect victims are victims nonetheless. Whatever jurors and judges may think about the decision to self‑manage abortion or the people who take that path, the fact that the people who do so have been subjected to violence is crucial to understanding their actions before, during, and after. In Kalina Gillum’s case, for example, “[t]he state described Kalina’s conduct as a selfish and irresponsible choice to have an abortion. Having heard this testimony, one grand juror even asked, ‘How come it’s involuntary manslaughter when everything sounds like it was premeditated?’”[338] It is reasonable to wonder if the jurors at Kalina’s trial had the same response. Without expert testimony on intimate partner violence, they had no way to contextualize Kalina’s actions or to consider how the abuse she experienced influenced her interactions with Braden. Dr. Fischer’s testimony could have dispelled their concerns. Expert testimony on intimate partner violence could also help surface and counter the stereotypes that lead finders of fact to draw unfair negative inferences about a defendant’s character and actions.[339]
Using expert testimony to undercut the perfect victim narrative would have been even more helpful in MC’s case. Like their adult counterparts, girls who disclose their victimization are expected to be meek and weak, as well as chaste and obedient to their parents and other authority figures.[340] The victimization claims of girls and young women are frequently minimized, denied, or ignored by judges when those criminalized youth fail to conform to stereotypes attached to girls and to victims.[341] Girls who are not “ladylike”—because they use illegal substances, run away, or engage in sexual behavior, for example—sometimes face harsher punishment as a result of the court’s perception of them as “bad” girls.[342]
“Perfect victim” stereotyping and bias were evident in MC’s case. In denying the transfer to juvenile court the trial judge focused on MC’s “choices and pattern of living” that led the court to view her as an adult.[343] The court noted that MC’s
desire to be treated as adult was not only apparent by her lifestyle, but how she treated others in the community and how adults treated her. . . . The Defendant made her own decisions as to what, where and how she would live her life, as an adult would made said decisions . . . and willingly partook in consuming alcohol, illegal substances, and tobacco as adults.[344]
What the court chose to ignore was evidence that MC was fifteen when she was taken by an adult to live several states away from her parents, an event that her parents did not attempt to prevent despite continuing to view her as a child.[345] She depended upon her parents for financial and emotional support and to enroll her in school.[346] The court also dismissed evidence that MC’s boyfriend isolated her from others, was “possessive” and “controlling,” and decided who she could talk to and see.[347] Further, the court apparently dismissed the evidence of the physical abuse MC endured, documented by, among others, Arkansas’s Department of Child and Family Services.[348] Expert testimony might have made MC’s predicament as an isolated, controlled, and abused child experiencing an unwanted pregnancy visible to the trial court.
In its characterization of MC, the appellate court offers this alternative reading of MC’s case: MC “was a young, unsophisticated, scared child caught in a situation that her maturity level was ill‑equipped to handle.”[349] MC was not an adult. She was an adolescent experiencing intimate partner violence. The trial court should have viewed her this way. Stereotype and bias kept it from doing so.
Conclusion
Kalina Gillum and MC’s cases demonstrate the unwillingness of trial courts, despite decades of jurisprudence and legislation recognizing the relevance of evidence of intimate partner violence for defendants in criminal cases, to admit that evidence in cases involving self‑managed abortion and pregnancy loss criminalization. This omission is profound because abortion is a site of intimate partner violence, and evidence about intimate partner violence is critical to help factfinders understand the actions and experiences of people prosecuted for their pregnancy outcomes. Without the benefit of this evidence, defendants in cases involving self‑managed abortion will remain imperfect victims, joining other criminalized survivors in feeding the increase in mass incarceration.
Ending intimate partner violence and abolishing systems of state punishment are the ultimate solutions—solutions that are lifetimes away for the people experiencing state and intimate partner violence right now. While we work toward that long‑term outcome, one simple answer to this problem would be for prosecutors to follow the law, and refrain from prosecuting people for miscarriages, stillbirths, and self‑managed abortions.[350]
Until prosecutors stop misusing the criminal codes to police and punish people’s reproductive lives, it falls to defense attorneys and judges to follow the law as it exists. As this Article has demonstrated, intimate partner violence evidence is relevant when such violence co‑occurs with self‑managed abortion and other pregnancy outcomes, and is, therefore, admissible under existing caselaw and rules of evidence. If prosecutors continue to insist on bringing these cases, we urge defense attorneys to put on testimony from experts in intimate partner violence and judges to ensure that all relevant evidence—including intimate partner violence victimization—be admitted.
* Sara L. Ainsworth is Chief Legal and Policy Director at If/When/How: Lawyering for Reproductive Justice, a nonprofit organization that provides legal services, including criminal defense, for people’s legal needs related to their reproductive decisions. Leigh Goodmark is the Associate Dean for Research and Faculty Development, Marjorie Cook Professor of Law, and Director of the Gender, Prison, and Trauma Clinic at the University of Maryland Francis King Carey School of Law. The authors thank Sarah Lorr, Leslie Meltzer Henry, and Farah Diaz Tello for their feedback and our research assistants, Fiona Carmichael and Carolyn Wetzel, for their invaluable work. This work owes a great debt to the many people who have experienced and survived violence and abuse by an intimate partner, only to have that violence compounded by cruel and punitive state responses—including the courageous Kalina Gillum and MC, whose cases and personal resilience inspired this Article. We also thank the lawyers, scholars, and activists whose work to end criminalization of survivors and pregnant people laid the groundwork for this piece. In particular, Sara thanks the If/When/How Litigation Team—Farah Diaz-Tello, Yveka Pierre, Shantal McNeil, Megan Hill, Kea Stewart, and Prachi Dave. Any mistakes are, of course, ours.
- Self‑managed abortion is “[a]n abortion that occurs outside of the clinical medical system and without the help of a licensed health care provider.” Laura Huss et al., If/When/How, Self‑Care, Criminalized: The Criminalization of Self‑Managed Abortion from 2000 to 2020 13 (2023); see also Am. Coll. of Obstetricians & Gynecologists, ACOG Committee Statement No. 13: Self‑Managed Abortion, 144 Obstet & Gynecol e152, e152 (2024) [hereinafter ACOG Committee Statement on SMA] (emphasis removed) (“Self‑managed abortion (SMA) refers to actions people take to end a pregnancy outside the formal health care system.”); Nisha Verma & Daniel Grossman, Self‑Managed Abortion in the United States, 12 Current Obstetric & Gynecology Reps. 70, 70 (2023) (noting that self‑managed abortion “could include self‑sourcing medications . . . ; using herbs, plants, vitamins, or supplements; consuming drugs, alcohol or toxic substances; and using physical methods”). The methods people use to end or attempt to end their own pregnancies vary across time and culture and include using herbs, tisanes, massage, invasive methods like inserting something into the body, and, increasingly now, using the medications mifepristone and misoprostol together, or misoprostol alone. Heidi Moseson et al., Self‑Managed Abortion: A Systematic Scoping Review, 63 Best Prac. & Rsch. Clin Obstet & Gynaecol 87, 88 (2020). The World Health Organization now recommends self‑managed abortion with pills as a model of abortion care for people whose pregnancies are at less than twelve weeks gestation and who have access to abortion medications, information on how to use them, and access to clinical care if needed. WHO, Clinical Practice Handbook for Quality Abortion Care 30 (2023), https://iris.who.int/server/api/core/bitstreams/44ba191a-1e0c-4d5a-9383-45a1d7aa4d60/content [https://perma.cc/3SE6-H62U]. ↑
- Lauren Ralph et al., Self‑Managed Abortion Attempts Before vs After Changes in Federal Abortion Protections in the US, JAMA Network Open (July 30, 2024), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2821654 [https://perma.cc/M2NP-6LLM] (noting that lifetime incidence of self‑managed abortion for U.S. women of reproductive age increased from an estimated 5 percent pre‑Dobbs to 7 percent post‑Dobbs when accounting for underreporting); see also Caitlin Gerdts et al., Self‑Managed Abortion and Criminalization in the Post‑Dobbs US, JAMA Network Open (July 30, 2024), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2821660 [https://perma.cc/RKJ6-HMP8] (reviewing Ralph et al., supra and their survey results to conclude that the increase in self‑managed abortions post‑Dobbs will likely coincide with an increase in criminalization of self‑managed abortions). Researchers attribute the increase in self‑managed abortion, particularly in the United States, to several factors, including the post‑Dobbs bans on abortion in several states. See Laura E. Jacobson & Caitlin Gerdts, Self‑Managed Medication Abortion: History, Evidence, Models of Care, and Policy Considerations, 115 Am. J. Pub. Health 1734, 1735 (2025) (“Because Dobbs . . . eliminated the constitutional right to abortion in the United States in 2022, the legality of abortion now depends on one’s geographic residence—with some states having moved to ban abortion entirely and others having expanded access.”). ↑
- Huss et al., supra note 1, at 36 (explaining that between 2017 and 2023, five of the seven states that criminalized self‑managed abortion explicitly repealed those laws: “Today, only Nevada retains an operational criminal ban on self‑managed abortion. Common sense would then suggest that criminal investigations and arrests of people for self‑managing abortions from 2000 to 2020 should have only occurred in the states with criminal prohibitions. But criminal laws have been misapplied to self‑managed abortion cases. . . . [C]riminal abortion or fetal harm laws a[re] particular classes of statutes ripe for misapplication”). ↑
- Huss et al., supra note 1, at 36–40. ↑
- Abortion stigma is a belief “that abortion is morally wrong and/or socially unacceptable. The stigma of abortion manifests within multiple levels, including media, law and policy, institutions, communities, relationships, and individuals.” Kate Cockrill et al., Addressing Abortion Stigma Through Service Delivery 3 (2013), https://www.ibisreproductivehealth.org/sites/default/files/files/publications/Addressing%20abortion%20stigma%20through%20service%20delivery.pdf [https://perma.cc/9XXQ-SJE7]; see also Anuradha Kumar et al., Conceptualising Abortion Stigma, 11 Cult Health & Sex 625, 628 (2009) (defining abortion stigma as “a negative attribute ascribed to women who seek to terminate a pregnancy that marks them, internally or externally, as inferior to ideals of womanhood”). ↑
- “Pregnancy criminalization” means law enforcement investigations, arrests, prosecutions, and criminal convictions of people for allegedly doing something (or not doing something) during their own pregnancy that may (or may not) have had an effect on the fetus they carry. In many cases, the pregnancy ended in a miscarriage, stillbirth, or death of a newborn, but people have been criminalized even when they gave birth to a healthy baby. See, e.g., Nina Martin & Amy Yurkanin, Take a Valium, Lose Your Kid, Go to Jail, ProPublica (Sep. 23, 2015), https://www.propublica.org/article/when-the-womb-is-a-crime-scene [https://perma.cc/6SXW-C8RL] (reporting the story of an Alabama mother experiencing intimate partner violence who was investigated for taking a valium prior to her son’s birth); Pregnancy Just., Confronting Pregnancy Criminalization 9–10 (2022), https://www.pregnancyjusticeus.org/confronting-pregnancy-criminalization [https://perma.cc/5NY8-D5YN] (documenting the hundreds of prosecutions of Alabama women for using drugs, including prescription medications, during pregnancy under the state’s “chemical endangerment of a child” law); People v. Jorgensen, 41 N.E.3d 778, 779–80 (N.Y. 2015) (reversing a vehicular manslaughter conviction that was based upon the pregnant defendant’s allegedly reckless conduct while in a car accident because the legislature “did not intend to hold pregnant women criminally responsible” for unintentional injuries to their unborn fetuses); McCormack v. Heideman, 694 F.3d 1004, 1008 (9th Cir. 2012) (describing the use of state abortion statutes against a defendant for allegedly ending her own pregnancy with a medication prescribed over the Internet). As the case studies in Section I.B, infra demonstrate, pregnancy criminalization extends to prosecuting people for their response after experiencing a pregnancy loss. See, e.g., Bynum v. State, 2018 Ark. App. 201, at 11–14, 546 S.W.3d 533, 541–43 (reversing Arkansas woman’s conviction for “concealing birth” for having a stillbirth and taking the remains to the hospital based on the state’s unfairly prejudicial introduction of evidence that the defendant took medication as part of her “motive or plan” to “have another abortion”). ↑
- 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, 310 (2013); see also Huss et al., supra note 1, at 55–56 (describing one mother’s story in detail and concluding that “the state punished her for trying to end her pregnancy and separated her from her [other] children” despite the strong evidence that “she was a victim of domestic violence,” including recent assault charges brought against her (now deceased) husband). ↑
- See, e.g., infra Section I.B; see also Huss et al., supra note 1, at 36, 55–56 (noting the role of intimate partner violence in self‑managed abortion prosecutions and that there were sixty‑one such prosecutions in the states reviewed between 2000 and 2020). At the time of this Article’s publication, If/When/How researchers are developing a follow‑up report detailing prosecutions post‑2020 (of which the case studies herein are a subset). ↑
- See, e.g., Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997); Jeanne Flavin, Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America (2009); Paltrow & Flavin, supra note 7; Farah Diaz‑Tello et al., Roe’s Unfinished Promise: Decriminalizing Abortion Once and For All (2018); Khiara M. Bridges, Race, Pregnancy, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During Pregnancy, 133 Harv. L. Rev. 770 (2020); Huss et al., supra note 1; Wendy Bach, Prosecuting Poverty, Criminalizing Care (2022); Wendy Bach & Mishka Terplan, Stopping Criminalization at the Bedside, 51 J.L. Med. & Ethics 533 (2023); Valena E. Beety & Jennifer D. Oliva, Policing Pregnancy “Crimes”, 98 NYU L. Rev. Online 29 (2023); Meghan Boone, Reversing the Criminalization of Reproductive Health Care Access, 48 Am. J.L. & Med. 200 (2022); Meghan Boone & Benjamin J. McMichael, State‑Created Fetal Harm, 109 Geo. L.J. 475 (2021); Sarah E. Burns & Sarah S. Wheeler, A Review and Look Ahead at Criminalizing Pregnancy in the Name of State Interest in Fetal Life, 76 SMU L. Rev. 369 (2023); Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 47 (2020); Grace E. Howard, The Pregnancy Police: Conceiving Crime, Arresting Personhood 21 (2024); Mridula S. Raman, Prosecutorial Discretion and the Crime of Abortion, 43 Yale L. & Pol’y Rev. 171 (2024). ↑
- See, e.g., Alisa Bierria & Colby Lenz, Battering Court Syndrome: A Structural Critique of “Failure to Protect”, in The Politicization of Safety: Critical Perspectives on Domestic Violence Responses 91 (Jane K. Stoever ed., 2019); Michal Buchhandler‑Raphael, Survival Homicide, 44 Cardozo L. Rev. 1673 (2023); Leigh Goodmark, Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism (2023); Elizabeth Langston Isaacs, The Mythology of the Three Liars and the Criminalization of Survival, 42 Yale L. & Pol’y Rev. 427 (2024); Lisa Young Larance, Broken: Women’s Stories of Intimate and Institutional Harm and Repair (2024); Lila Meadows & Leigh Goodmark, Discretion and Credibility, Dignity and Mercy: The Case of PT, a Criminalized Survivor, 38 Wis. J.L. Gender & Soc’y 53 (2023); Susan L. Miller, Victims as Offenders: The Paradox of Women’s Violence in Relationships (2005); Beth E. Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women (1996); Andrea J. Ritchie, Invisible No More: Police Violence Against Black Women and Women of Color (2017); Cesraéa Rumpf, Recovering Identity: Criminalized Women’s Fight for Dignity and Freedom (2023); Ellie Williams, Leaving Doesn’t Mean Living: Analyzing the Case of Angela Vaughn, Criminalized Survivors of Gender‑Based Violence, and International Human Rights Law, 51 Ga. J. Int’l & Comp. L. 587 (2023). For a historical perspective on criminalized survivors, see Emily Thuma, All Our Trials: Prisons, Policing, and the Feminist Fight to End Violence (2019). ↑
- Paltrow & Flavin, supra note 7, at 309–11. ↑
- Huss et al., supra note 1, at 21. That number includes pregnant people and the people who helped them secure abortions and is likely an undercount “[g]iven the criminal legal system’s ability to obscure cases related to abortion.” Id. at 5. Most of these cases arose not under abortion or fetal harm laws but through the misapplication of other criminal laws. Id. at 36–38. Of the forty‑two adults whose cases were prosecuted, over half were found or pled guilty. Id. at 25. But even for those whose cases were not prosecuted, the experience of arrest can be traumatic and stigmatizing and carry a number of other consequences. Id. at 52– 58; see also Goodmark, supra note 10, at 54–57 (noting that arrests can have damaging consequences “including creation of a permanent arrest record, bans on the receipt of public benefits, ineligibility for public housing, negative implications for child custody, and difficulty finding or keeping employment”). There is no definitive source on how prevalent self‑managed abortion criminalization has been since July of 2022, when Dobbs was handed down and states began enforcing old bans and enacting new ones. A full report on the numbers and patterns in such criminalization since 2020 is forthcoming from If/When/How. ↑
- Purvaja S. Kavattur et al., The Rise of Pregnancy Criminalization: A Pregnancy Justice Report 4 (2023). Although the vast majority (almost 80 percent) of the cases came from five states—Alabama, South Carolina, Tennessee, Oklahoma, and Mississippi—the study found cases of pregnancy criminalization in forty‑six states and U.S. territories. Id. ↑
- Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1419 (1991). ↑
- See Bridges, supra note 9, at 817–20, 825–27 (describing the shift from the prosecution and imprisonment of Black pregnant persons who used crack cocaine to the prosecution and treatment of white pregnant persons who used opioids and the corresponding change in national attitudes to a “general disposition” prone to “conceptualiz[ing] those who are addicted to opioids as people who, being ‘just like us,’ need treatment—and not incarceration”); see also Bach, supra note 9, at 18– 20, 47–49 (“During the second wave of prosecutions, beginning roughly in the early 2010s, prosecutions appear to have remained focused in the South and in poor communities, but the overall racial makeup of those prosecutions began to shift from Black to white. . . . [A]s the targeted substances shifted from cocaine to methamphetamine and opiates, the racial makeup of defendants shifted overall from Black to white.”). ↑
- See, e.g., Burns & Wheeler, supra note 9, at 373 (noting that “the state interest in fetal life has long been borrowed from abortion law to tyrannize and diminish pregnant people across their reproductive lives, regardless of whether they seek abortions”); Diaz‑Tello et al., supra note 9, at 16; Goodwin, supra note 9, at 47; Paltrow & Flavin, supra note 7, at 334– 35. ↑
- Darran Simon & Susan Scutti, DA Drops All Charges Against a Pregnant Woman Indicted in Her Baby’s Death After Shooting in Alabama, CNN, https://www.cnn.com/2019/07/03/us/pregnant-alabama-woman-manslaughter-indictment/index.html [https://perma.cc/YZD2-4ULV] (last updated July 13, 2019, at 4:16 PM). ↑
- See, e.g., Noah Addis, Pregnant on Opiates: When Following Doctors’ Orders Breaks the Law, NBC News, https://www.nbcnews.com/news/us-news/pregnant-opiates-when-following-doctors-orders-breaks-law-n100781 [https://perma.cc/G594-8YS2] (last updated May 9, 2014, at 2:42 AM) (describing the conflicting advice pregnant opiate users hear from health professionals, law enforcement members, and child welfare agents). As law professor Priscilla Ocen explains, criminalization of people who use drugs during pregnancy—designed, as she argues, to police and prevent reproduction among people the state deems “inferior” mothers—puts pregnant people in a double bind: “On the one hand, poor pregnant drug users wish to stop using drugs but do not have access to drug treatment programs. On the other hand, they cannot stop using drugs cold turkey for fear that they will suffer a miscarriage. Given these circumstances, a pregnant drug user runs the risk of punishment no matter what she does: she may be punished for using drugs during pregnancy if the child is born, and she may be charged with a homicide if she suffers a pregnancy loss after she stops using drugs.” Priscilla Ocen, Birthing Injustice, Pregnancy as a Status Offense, 85 Geo. Wash. L. Rev. 1163, 1202 (2017). ↑
- See, e.g., Akers v. State, 331 A.3d 853, 882 (Md. 2025) (reversing woman’s homicide conviction for the death of her newborn—that she and defense experts maintained was stillborn—because the trial court improperly admitted evidence that she had not obtained prenatal care and had considered an abortion); see also discussion on Akers case infra Section IV.B. ↑
- See B.S. v. State, 966 N.E.2d 619, 628–32 (Ind. Ct. App. 2012) (denying a motion to dismiss indictment for murder and attempted feticide brought against a woman who had become suicidal and attempted to take her own life during her pregnancy and whose premature baby died after birth). ↑
- See Theresa Morris & Joan H. Robinson, Forced and Coerced Cesarean Sections in the United States, Contexts, Spring 2017, at 24, 26–27 (describing court‑ordered cesarean surgeries and threats by child welfare agencies made to pregnant women that they will remove their newborn from their custody at birth if they refuse to consent to a cesarean surgery). ↑
- See People v. Jorgensen, 41 N.E.3d 778, 779–80 (N.Y. 2015) (reversing manslaughter conviction of woman for the death of her baby, delivered by emergency C‑section after the woman was in a car accident that she allegedly caused by reckless driving). ↑
- Julie Carr Smyth, A Black Woman Was Criminally Charged After a Miscarriage. It Shows the Perils of Pregnancy Post‑Roe, Associated Press, https://apnews.com/article/ohio‑miscarriage‑prosecution-brittany-watts-b8090abfb5994b8a23457b80cf3f27ce [https://perma.cc/YT3B-HWYA] (last updated Dec. 16, 2023, at 11:01 AM). ↑
- See generally Goodmark, supra note 10; Richie, supra note 10. ↑
- Aleks Kajstura & Wendy Sawyer, Women’s Mass Incarceration: The Whole Pie, Prison Pol’y Initiative: Reps. (Mar. 5, 2024), https://www.prisonpolicy.org/reports/pie2024women.html [https://perma.cc/J9XF-7U5B]. ↑
- The range of percentages is derived from several studies on this issue. Goodmark, supra note 10, at 12 (citing studies); see also Beth E. Richie, Panel Presentation on Abolition Feminism: The Heart and Soul of Transformative Justice (Oct. 22, 2020) (transcript of Zoom recording on file with the University of Colorado Law Review) (observing that “the apparatus of the prison nation doesn’t give power to survivors” but instead tends to “replicate [the] abusive relationships” experienced while not incarcerated). Kwaneta Harris, incarcerated in Texas, was astounded when, after fifteen years in prison, she finally met a woman who had not been a victim of abuse. E‑mail from Kwaneta Harris to Leigh Goodmark (Sep. 9, 2024) (on file with authors). ↑
- See generally Meda Chesney‑Lind, Patriarchy, Crime, and Justice: Feminist Criminology in an Era of Backlash, 1 Feminist Criminology 6 (2006); Alesha Durfee, Situational Ambiguity and Gendered Patterns of Arrest for Intimate Partner Violence, 18 Violence Against Women 64 (2012); Miller, supra note 10. ↑
- See generally Richie, supra note 10; Beth E. Richie, Arrested Justice: Black Women, Violence, and America’s Prison Nation (2012). ↑
- See generally Goodmark, supra note 10. ↑
- See, e.g., Bach, supra note 9, at 191; Goodmark, supra note 10, at 11, 51; Huss et al., supra note 1, at 22; Kavattur et al., supra note 13, at 4. See generally Richie, supra note 10; Ritchie, supra note 10. ↑
- Aziza Ahmed, Floating Lungs: Forensic Science in Self‑Induced Abortion Prosecutions, 100 B.U. L. Rev. 1111, 1146–47 (2020) (“[T]he prosecution of women for self‑inducing abortion or abandoning a stillbirth represents a moral panic rooted in the idea that women who are pregnant must behave in line with a true maternal instinct.”); A. Rachel Camp, Coercing Pregnancy, 21 Wm. & Mary J. Women & L. 275, 310 (2015) (“The narrative of what makes a good mother begins at pregnancy; to deviate from that narrative and share stories of coercion and harm simply may not be worth the social price, or may simply fall on the unsympathetic or judgmental ears.”); Howard, supra note 9, at 118 (“If pregnant people violate the norms associated with virtuous motherhood, either by way of their identity, reputation, or actions, they become fair game for disdain and punishment.”). ↑
- See Abigail Aiken et al., Demand for Self‑Managed Medication Abortion Through an Online Telemedicine Service in the United States, 110 Am. J. Pub. Health 90, 95 & tbl. 3 (2020) (describing the barriers to clinic‑based abortion and reporting survey responses from respondents who requested medication abortions); Verma & Grossman, supra note 1, at 72 (documenting reasons to self‑manage abortions); see also Heidi Moseson et al., Abortion Attempts Without Clinical Supervision Among Transgender, Nonbinary, and Gender Expansive People in the United States, 48 BMJ Sex Reprod. Health e22, e22–23 (2022) (noting systemic discrimination and barriers to accessing clinic‑based abortion care); Akers v. State, 331 A.3d 853, 873 (Md. 2025) (citing Ushma Upadhyay et al., Barriers to Abortion Care and Incidence of Attempted Self‑Managed Abortion Among Individuals Searching Google for Abortion Care: A National Prospective Study, 106 Contraception 49, 53 (2022)) (“Individuals consider self‑managed abortions for a variety of reasons, including because of barriers to clinic‑based abortion care, such as the distance to a clinic, financial challenges, or a lack of childcare availability.”). ↑
- See generally Jonathan Simon, Governing Through Crime (2007) (arguing that the United States has reconceptualized social problems as crimes and shifted responsibility for addressing social problems to the criminal legal system). ↑
- See, e.g., Ala. Code § 26‑23H‑4 (2024); Ark. Code Ann. §§ 5‑61‑301–304 (2024); Idaho Code § 18‑622(1)(a) (2025); S.B. 1, 122nd Leg., 1st Spec. Sess., 2022 Ind. Acts 179; Ky. Rev. Stat. Ann. § 311.772 (2025); La. Stat. Ann. §§ 14:87.7– 87.8, 40:1061 (2025); Miss. Code Ann. § 41‑41‑45 (2024); Okla. Stat. tit. 21, § 861 (2024); S.D. Codified Laws § 22‑17‑5.1 (2022); Tenn. Code Ann. § 39‑15‑213 (2024); Tex. Health & Safety Code Ann. §§ 170A.001–7 (2025); W. Va. Code § 16‑2R‑3 (2025). In November of 2024, Missouri voters passed Amendment 3, protecting abortion as a constitutional right. However, abortion remains unavailable in Missouri as of this writing. See Jeremy Kohler, Three Months After Missouri Voted to Make Abortion Legal, Access Is Still Being Blocked, ProPublica (Feb. 5, 2025, at 4:40 PM), https://www.propublica.org/article/missouri-abortion-ban-amendment-planned-parenthood-lawsuit [https://perma.cc/L8S4-ESU9]. During this writing, North Dakota’s highest court reinstated its ban on abortion. Sona A. Rao, Abortion Is Once Again Illegal in North Dakota, N.Y. Times (Nov. 22, 2025), https://www.nytimes.com/2025/11/22/us/politics/abortion-illegal-north-dakota.html [https://perma.cc/KR8F-RQN6]. The ban is codified at N.D. Cent. Code § 12.1‑19.1‑02 (2025). ↑
- See infra Sections I.A.3.c, III.C, III.D. ↑
- Usha Ranji et al., Dobbs‑Era Abortion Bans and Restrictions: Early Insights About Implications for Pregnancy Loss, KFF (May 2, 2024), https://www.kff.org/womens-health-policy/dobbs-era-abortion-bans-and-restrictions-early-insights-about-implications-for-pregnancy-loss [https://perma.cc/XQ58-ASSK]; Gabriela Weigel et al., Understanding Pregnancy Loss in the Context of Abortion Restrictions and Fetal Harm Laws, KFF (Dec. 4, 2019), https://www.supremecourt.gov/opinions/URLs_Cited/OT2021/19-1392/19-1392-12.pdf [https://perma.cc/SSU7-6HMT]. ↑
- See Isaac Maddow‑Zimet et al., Induced Abortion in the United States, guttmacher (Apr. 2025), https://www.guttmacher.org/fact-sheet/induced-abortion-united-states [https://perma.cc/S52Z-MDXC] (noting that the reported figure of around 1,038,000 is an undercount of the abortions in the United States in 2024). ↑
- Talla Curhan & Peter Ephross, State Bans on Abortion Throughout Pregnancy, guttmacher, https://www.guttmacher.org/state-policy/explore/state-policies-abortion-bans [https://perma.cc/F7JJ-KJ5L] (last updated Mar. 10, 2026); see also sources cited supra note 34. ↑
- Isaac Maddow‑Zimet & Candace Gibson, Despite Bans, Number of Abortions in the United States Increased in 2023, guttmacher, https://www.guttmacher.org/2024/03/despite-bans-number-abortions-united-states-increased-2023 [https://perma.cc/PSU8-NE4D] (last updated May 10, 2024); Alison Norris et al., #WeCount & Soc’y of Fam. Plan., #WeCount Report April 2022 Through December 2024 (2025),https://societyfp.org/wecount-report-9-december-2024-data [https://perma.cc/6QJ7-KYP8]. ↑
- Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 281–87 (1992) (showing the historic roots of abortion criminalization in sex inequality arguments put forward primarily by male physicians who opposed abortion—not only because they viewed women’s primary role as that of reproducers, but out of their interest in establishing their profession as bona fide). “At a time when medical practitioners could do little to prolong life, the doctors’ efforts to assert scientific authority over the inception of life enhanced the stature of the profession as a whole.” Id. at 284. ↑
- See, e.g., Roe v. Wade, 410 U.S. 113, 132–33 (1972); McCormack v. Heideman, 694 F.3d 1004, 1010–11 (9th Cir. 2012); State v. Carey, 56 A. 632, 636 (Conn. 1904) (“[A]n 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”); State v. Ashley, 701 So. 2d 338, 340 (Fla. 1997) (holding that a pregnant teenager who shot herself in the stomach could not be charged with murder for the death of her fetus because, under common law, a pregnant woman was not criminally liable for her actions that may have harmed her fetus); see also Huss et al., supra note 1, at 4–5 (noting that the “use of criminal codes to regulate abortion is hardly new, dating back to the mid‑ to late 1800s” but Dobbs has permitted the modern “far‑reaching culture of criminalization” to reach abortion rights). Contra Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 217 (2022). ↑
- See, e.g., Ashley, 701 So. 2d at 340–41. ↑
- Diaz‑Tello et al., supra note 9, at 6–8 (showing that as of 2017, the only states that had explicitly criminalized self‑managed abortion were Arizona, Delaware, Idaho, Nevada, New York, Oklahoma, and South Carolina). ↑
- As researchers Lauren Jacobson and Caitlin Gerdts explain, in the 1980s, women in Brazil, where abortion was heavily restricted, recognized from its warning label that the drug Cytotec (misoprostol) could cause miscarriages. Jacobson & Gerdts, supra note 2, at 1735. Their use of misoprostol for self‑managed abortion resulted in a measurable decrease in complications from unsafe abortion in that country. Its use spread to other legally restrictive countries. Id. In the same time period, the drug mifepristone was developed in Europe and was eventually approved for use in the United States in 2000. Id. These developments made self‑managed abortion with pills possible, but tracking the incidence is difficult for many reasons. See id. at 1736–37. Researchers in India estimate that more than 70 percent of abortions in India are self‑managed with pills; in the United States, researchers estimate that, post‑Dobbs, 10 percent of U.S. women will attempt a self‑managed abortion in their lifetimes. Id. at 1737. ↑
- See, e.g., McCormack v. Herzog, 788 F.3d 1017, 1028–30 (9th Cir. 2015) (finding that the threat of criminal charges was an undue burden on the then‑recognized constitutional right to an abortion, in part because a person should not have to police their health care provider’s compliance with abortion statutes); Reproductive Health Act of 2019, N.Y. Pub. Health Law §§ 2599‑aa to bb‑1 (repealing New York’s self‑managed abortion crime in 2019 and codifying the right to abortion and choose or refuse treatment). ↑
- Herzog, 788 F.3d at 1028–30, 1033. While discussed in the context of undue burden analysis, even post‑Roe that principle is important for analysis of a criminal statute’s constitutionality as well as a valuable mens rea defense for a criminalized person. ↑
- Diaz‑Tello et al., supra note 9, at 6–8; see also supra note 3. ↑
- The Nevada prohibition on self‑managed abortion begins after the twenty‑fourth week of pregnancy. Nev. Rev. Stat. § 200.220 (2025). Notably, in 2022, Nevada enacted the Equality of Rights Amendment to its constitution; under that provision, any sex‑specific legislation, such as the self‑managed abortion ban, is invalid. Nev. Const. art. 1, § 24. In February of 2025, a Nevada legislator introduced Senate Bill 139, a bill that would repeal section 200.220. S.B. 139, 83rd Leg., Reg. Sess. (Nev. 2025). In defiance of this trend, legislators in at least four states (Indiana, North Dakota, Oklahoma, and South Carolina) have introduced bills that would add abortion to the legal definition of homicide. Carter Sherman, As Trump Returns, State Lawmakers Pursue Bills That Would Treat Abortion as Homicide, Guardian (Jan. 23, 2025, at 12:23 PM), https://www.theguardian.com/world/2025/jan/23/abortion-homicide-bills [https://perma.cc/M43N-ECQ2]. Some of these legislators belong to the “abortion abolitionism” movement, which believes “that if abortion is murder, then abortion patients should be treated like murderers and punished accordingly.” Id. As of this writing, no state has actually enacted such a law, as opposition to criminalizing people who have abortions crosses ideological lines. See, e.g., Joint Open Letter of More than 70 Leading Pro‑Life Organizations: Criminalizing Women Who Have Abortions Is Not Pro‑life, Nat’l Right to Life (May 12, 2022) [hereinafter Joint Open Letter], https://nrlc.org/communications/releases/2022/051222openletter [https://perma.cc/ZTD3-BM8Q]. ↑
- See, e.g., Joint Open Letter, supra note 48. The opposition of even anti‑abortion groups to criminalizing people for having abortions has helped ensure the defeat of every state bill proposed since Dobbs that would criminalize a person for having an abortion. E.g., Kevin McGill, No More Murder Charge for Women in Louisiana Abortion Bill, Associated Press (May 12, 2022, at 7:45 PM), https://apnews.com/article/abortion-us-supreme-court-health-religion-louisiana-b73a7cfb0afc29c30d106a85c80c7c50 [https://perma.cc/TD7V-TPF3]. ↑
- Huss et al., supra note 1, at 36–40. ↑
- Id. at 36. See generally If/When/How, 2025 Strategic Plan (2025), https://ifwhenhow.org/wp-content/uploads/2025/10/IWH_Strategic-Plan_2025.pdf [https://perma.cc/6W5S-WRPD] (describing the organization’s client‑centered work to defend, ensure funding for a strong defense, and mobilize defense attorneys nationwide to fight the state violence of criminalization against people for their reproductive lives). ↑
- M. Antonia Biggs et al., Support for Criminalization of Self‑Managed Abortion (SMA): A National Representative Survey, Soc. Sci. & Med., Jan. 2024, at 1, 7. ↑
- ACOG Committee Statement on SMA, supra note 1, at e153. ↑
- See Tracy X. Chen et al., Roots, Leaves, and Flowers: A Narrative Review of Herbs and Botanicals Used for Self‑Managed Abortion in Asia and the Pacific, 68 J. Midwifery & Women’s Health 710, 714–15 (2023) (providing examples of historical practices); Michele Goodwin, The Racist History of Abortion and Midwifery Bans, ACLU (July 1, 2020), https://www.aclu.org/news/racial-justice/the-racist-history-of-abortion-and-midwifery-bans [https://perma.cc/JP6W-6666] (providing details on marginalization). ↑
- David S. Cohen et al., Abortion Pills, 76 Stan. L. Rev. 317, 336 (2024); Gerdts et al., supra note 2. ↑
- Jenna Jerman et al., What Are People Looking for When They Google “Self‑Abortion”?, 97 Contraception 510, 512–13 (2018). ↑
- Abigail Aiken et al., Requests for Self‑Managed Medication Abortion Provided Using Online Telemedicine in 30 US States Before and After the Dobbs v Jackson Women’s Health Organization Decision, 328 JAMA 1768, 1769 (2022). ↑
- Abigail Aiken et al., Provision of Medications for Self‑Managed Abortion Before and After the Dobbs v Jackson Women’s Health Organization Decision, 331 JAMA 1558, 1561 (2024). ↑
- Ralph et al., supra note 2. ↑
- Id.; Huss et al., supra note 1, at 15, 18. ↑
- Abigail Aiken et al., Factors Associated with Knowledge and Experience of Self‑Managed Abortion Among Patients Seeking Care at 49 US Abortion Clinics, JAMA Network Open (Apr. 18, 2023), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2803942 [https://perma.cc/62PG-UC4K]. ↑
- Aiken et al., supra note 32, at 95; Verma & Grossman, supra note 1, at 72; Akers v. State, 331 A.3d 853, 873 (Md. 2025). ↑
- E.g., State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶ 7; Patel v. State, 60 N.E.3d 1041, 1047 (Ind. Ct. App. 2016); Huss et al., supra note 1, at 16. ↑
- E.g., Minor Child v. State, 2024 Ark. App. 393, at 10, 701 S.W.3d 751, 758– 59 (describing testimony from police officers that, upon arresting a seventeen‑year‑old after an alleged self‑managed abortion, none of them called an ambulance or took her to the hospital, but instead, they took her, still bleeding, to the police station—rather than express concern about the fact that she was “bleeding everywhere[,] I mean it was all over her sweatpants,” officers described her as “disrespectful” because she sat in three different chairs and the chairs had to be “replaced”). ↑
- See, e.g., Patel, 60 N.E.3d at 1046, 1051 (documenting the evidence that was used against the defendant at trial court, including her panicked text messages, to paint her as someone who had no care for her deceased fetus); Gillum, 2022 WL 2118008, at ¶¶ 2, 7–8 (emphasizing that the defendant arrived at the hospital with “an umbilical cord ‘hanging out,’ but no baby” and using deleted text messages between the defendant and the father to try to establish her guilt); Akers v. State, No. 0925, 2024 WL 338958, at *1–2 (Md. App. Ct.) (describing the defendant’s arrival at the hospital and asserting that she was “calm and answering questions,” suggesting she should not have been calm given her pregnancy loss and alleged attempt to hide it), cert. granted, 316 A.3d 518 (Md. 2024), rev’d, 331 A.3d 853 (Md. 2025). ↑
- In the two cases we discuss below, abusive partners were also criminalized—but for acts involving the alleged self‑managed abortion, not for allegedly threatening, assaulting, isolating, stalking, or even strangling, the pregnant person. See infra Section I.B. In these and other cases, evidence of harm against the pregnant person did not result in criminal proceedings against the perpetrators for that violence. See infra Section I.B; see also Howell v. Frazier, No. 83224 (Nev. Aug. 10, 2023) (on file with authors) (affirming the district court’s postconviction order that had set aside Ms. Frazier’s conviction and concluded her defense attorney was ineffective, in part due to his failure to introduce evidence of intimate partner violence and other history of abuse). ↑
- See infra Section I.B. ↑
- Deep racial disparities persist in criminalization and incarceration; seven of ten people incarcerated in the United States are people of color. Ashley Nellis, The Sent’g Project, Mass Incarceration Trends 6 (2024). ↑
- Black women were disproportionately criminalized for pregnancy loss between 1973 and 2005. Paltrow & Flavin, supra note 7, at 311–12. Between 2000 and 2020, Black and Latina adults were disproportionately criminalized for self‑managed abortion. Huss et al., supra note 1, at 22. Similarly, Black women were overrepresented in criminalization of all pregnancy outcomes between 2006 and 2022, although, notably, that research also found that white women have been increasingly criminalized in more recent years, particularly for alleged drug use during pregnancy. Kavattur et al., supra note 13, at 4. ↑
- Kavattur et al., supra note 13, at 4 (“Nearly 85% of cases involved criminal charges against a pregnant person who was deemed legally ‘indigent’ . . . .”); Huss et al., supra note 1, at 26 (finding that 57 percent of sampled self‑managed abortion cases proceeding through court qualified for indigent defense or pro bono attorney); Paltrow & Flavin, supra note 7, at 310 tbl. 1 (finding that 71 percent of the women deprived of their liberty due to pregnancy qualified for indigent defense). ↑
- Nazgol Ghandoosh & Celeste Barry, The Sent’g Project, One in Five: Disparities in Crime and Policing 5–6, 8–11 (2023), https://www.sentencingproject.org/app/uploads/2023/11/One-in-Five-Disparities-in-Crime-and-Policing.pdf [https://perma.cc/3MRJ-SN8G]. This kind of surveillance is also responsible for the overrepresentation of Black and Native American people in child welfare investigations and attendant separations of children from their parents. See generally Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World (2022) (detailing how the child welfare system polices and punishes Black families). ↑
- Thaddeus L. Johnson & Natasha N. Johnson, Police Facial Recognition Can’t Tell Black People Apart, Sci. Am. (May 18, 2023), https://www.scientificamerican.com/article/police-facial-recognition-technology-cant-tell-black-people-apart [https://perma.cc/GY39-A794]; see also Dorothy E. Roberts, Digitizing the Carceral State, 132 Harv. L. Rev. 1695, 1712–20 (2019) (reviewing Virginia Eubanks, Automating Inequality: How High‑Tech Tools Profile, Police, and Punish the Poor (2018)) (arguing that the rise of predictive technologies has enabled racialized criminalization because “their forecasts of the future are based on data that were produced by existing racial discrimination in systems such as policing, housing, education, health care, and public assistance” and that predictive policing in particular has “become a ‘self‑fulfilling feedback loop’ where the prediction ensures future detection” of supposed criminal activity in the same communities of color). ↑
- E.g., Rina Torchinsky, How Period Tracking Apps and Data Privacy Fit into a Post‑Roe v. Wade Climate, NPR, https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps [https://perma.cc/6S9Y-HN3Q] (last updated June 24, 2022, at 3:06 PM). ↑
- If/When/How tracks daily all media references to pregnancy criminalization and regularly searches the Lexis database for pregnancy criminalization cases. If/When/How represents every person that it can who has faced these charges; many of them directly contact the Repro Legal Helpline before they are charged or anything is reported in the media. These tracking results will be included in the update to Huss et al., supra note 1, which is in production but not yet available at the time of this Article’s publication. ↑
- See, e.g., Huss et al., supra note 1, at 30–34; Patel v. State, 60 N.E.3d 1041, 1046 (Ind. Ct. App. 2016); see also McCormack v. Herzog, 788 F.3d 1017, 1022 (9th Cir. 2015); Ada Calhoun, The Rise of DIY Abortions, New Republic (Dec. 20, 2012), https://newrepublic.com/article/111368/the-rise-diy-abortions [https://perma.cc/4W8M-HLGP]. ↑
- Huss et al., supra note 1, at 62; see also Atara Rich‑Shea & Em Lawler, Cmty. Just. Exch. & Reprod. Legal Def. Fund, Dobbs Was Not the Beginning: A Guide On Pregnancy Criminalization 9 (2023), https://ifwhenhow.org/wp-content/uploads/2023/06/DobbsWasNotTheBeginning_FINAL.pdf [https://perma.cc/8UAX-4CXX]. ↑
- Huss et al., supra note 1, at 30; see, e.g., Patel, 60 N.E.3d at 1046; Plaintiff’s Omnibus Response in Opposition to Defendant’s Motion to Dismiss at 3–4, Gonzalez v. Ramirez, No. 24‑cv‑00132 (S.D. Tex. June 18, 2024); State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶ 2. ↑
- HIPAA regulations prohibit health care entities from disclosing private health care information, including to law enforcement, unless specific requirements are met. 45 C.F.R. § 164.512 (2024). However, explicit protections for reproductive health care information enacted by the Biden Administration are currently enjoined. See Purl v. U.S. Dep’t of Health & Hum. Servs., 787 F. Supp. 3d 284, 296– 97 (N.D. Tex. 2025). ↑
- #CopsOutOfCare Working Grp., Interrupting Criminalization, Timeline of Hospital Criminalization & Interrupting Criminalization in Health Care Settings (2021), https://static1.squarespace.com/static/5ee39ec764dbd7179cf1243c/t/63f436090e124f3e2286dc16/1676949010761/Timeline+of+Hospital+Criminalization.pdf [https://perma.cc/SP3H-D9LU]. ↑
- Carmen R. Green et al., Visiting Black Patients: Racial Disparities in Security Standby Requests, 110 J. Nat’l Med. Ass’n 37, 37 (2018). ↑
- ACOG Committee Statement on SMA, supra note 1. ↑
- HIPAA Privacy Rule to Support Reproductive Health Care Privacy, 89 Fed. Reg. 32976, 32978 (Apr. 26, 2024) (to be codified at 45 C.F.R. pts. 160, 164) (“Th[e] [shift]ing legal landscape increases the likelihood that an individual’s PHI [private health information] may be disclosed in ways that cause harm to the interests that HIPAA seeks to protect, including the trust of individuals in health care providers and the health care system. The threat that PHI will be disclosed and used to conduct such an investigation against, or to impose liability upon, an individual or another person is likely to chill an individual’s willingness to seek lawful health care treatment or to provide full information to their health care providers when obtaining that treatment, and on the willingness of health care providers to provide such care.”). ↑
- Huss et al., supra note 1, at 30–32. ↑
- Laura Huss et al., If/When/How, Executive Summary: Self‑Care, Criminalized 2 (2023) (“When people were charged with crimes, they were not commonly charged under laws banning self‑managed abortion. Rather, police and prosecutors often misrepresented and misapplied the law to find ways to punish someone for an abortion.”). ↑
- See supra note 48. ↑
- See, e.g., Ala. Code § 26‑23H‑5 (2026) (“No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.”); Ark. Code Ann. § 5‑61‑304(c)(1) (2025) (“This section does not: [a]uthorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child . . . .”); Idaho Code § 18‑622(5) (2025) (“Nothing in this section shall be construed to subject a pregnant woman on whom any abortion is performed or attempted to any criminal conviction and penalty.”); Ky. Rev. Stat. Ann § 311.7705(4) (2025) (stating that “[a] pregnant woman on whom an abortion is intentionally performed or induced” is not guilty of violating or conspiring to violate the law and cannot be held civilly liable); La. Stat. Ann. § 40:1061(H) (2025) (“Nothing in this Section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.”); Miss. Code Ann. § 41‑41‑45(4) (2025) (stating that “[a]ny person, except the pregnant woman,” who provides an abortion can be held criminally liable except in certain extraordinary circumstances); S.B. 2150, 68th Legis. Assemb., Reg. Sess., 2023 N.D. Laws ch. 122, § 1 (“It is a Class C felony for any person, other than the pregnant female upon whom the abortion was performed, to perform an abortion.”); Okla. Stat. tit. 21, § 861 (2026) (lacking application by its terms to a person who themselves has an abortion, an interpretation that caselaw affirms in Cahill v. State, 178 P.2d 657, 659 (Okla. Crim. App. 1947) (clarifying that a pregnant person cannot become an accomplice by consenting to an abortion performed on them by another)); S.D. Codified Laws § 22‑17‑5.1 (2025) (criminalizing “prescrib[ing] or procur[ing] for” abortions, which precludes the law from applying to a person who has an abortion, since they cannot “prescribe[] or procure[] for” one); Tenn. Code Ann. § 39‑15‑213(e) (2025) (“This section does not subject the pregnant woman upon whom an abortion is performed or attempted to criminal conviction or penalty.”); Tex. Health & Safety Code § 170A.003 (2025) (“This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted.”); W. Va. Code § 16‑2R‑3 (2025) (applying only to those performing or providing abortion to another person by its terms). ↑
- See supra note 86 (state abortion ban exemptions); see also In re Silva, 692 S.W.3d 324, 326–27 (Tex. 2024) (Blacklock, J., concurring) (mem.) (quoting Crissman v. State, 245 S.W. 438, 438 (1922)) (“Texas’s recently enacted abortion laws . . . contain clear provisions exempting from prosecution women who obtain abortions. And Texas’s longest‑standing criminal prohibition on abortion, which pre‑dates Roe v. Wade, has for over a hundred years been subject to the Court of Criminal Appeals’ repeated, unequivocal holding that ‘a woman who voluntarily submits to an abortion, or advises, encourages or procures it to be done, is not a principal offender nor accomplice.’”); Minor Child v. State, 2024 Ark. App. 393, at 19, 701 S.W.3d 751, 763 (“[T]he legislature has specifically forbidden that a mother be criminally charged for the death of her unborn child as a result of her ingestion of the abortion pills.”). ↑
- See, e.g., Patel v. State, 60 N.E.3d 1041, 1046 (Ind. Ct. App. 2016) (discussing the evidence presented at trial accusing defendant of having a live birth and not seeking aid for the allegedly living baby); State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶¶ 9–15 (discussing the conflicting expert testimony presented at trial offered to prove the issue of live birth versus fetal death); infra Section I.B. (discussing case studies where the prosecutor attempted to show live birth). ↑
- See Huss et al., supra note 1, at 38–40 (discussing the distribution of charge types in cases of self‑managed abortions); Kavattur et al., supra note 13, at 31 (explaining that about 6 percent of pregnancy criminalization cases with charge information involved a charge of felony feticide, murder, or manslaughter). ↑
- Huss et al., supra note 1, at 27. Of course, just the experience of arrest can be damaging for criminalized survivors. See Goodmark, supra note 10, at 19–21 (discussing the harms associated with arrest, including trauma, stigma, cost, loss of employment, loss of children, and the inability to access public benefits). ↑
- E.g., Gillum, 2022 WL 2118008, at ¶ 17; Bynum v. State, 2018 Ark. App. 201, at 1, 546 S.W.3d 533, 536 (noting that the jury took four minutes to deliberate and convict); Huss et al., supra note 1, at 17, 43. ↑
- See, e.g., Akers v. State, 331 A.3d 853, 873–74 (Md. 2025) (discussing the role abortion stigma plays in determining evidence admissibility). ↑
- Huss et al., supra note 1; see infra Part IV. ↑
- The State v. Gillum trial docket and rulings are not in a public database but may be available by registering with the Licking County Court of Appeals. All trial documents are on file with the authors. For the decision upholding Ms. Gillum’s conviction on appeal, see State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, discretionary appeal not allowed by 2022‑Ohio‑3546, 195 N.E.3d 1050 (unpublished table decision). ↑
- If/When/How attorney Yveka Pierre, along with Ohio‑based counsel, represented Ms. Gillum at trial. Along with her colleagues at If/When/How and Ohio counsel, author Sara Ainsworth was Ms. Gillum’s counsel on appeal. It feels particularly important to understand the legal risks people face as a federal executive hostile to civil and human rights, and particularly to sexual, reproductive, and gender‑affirming care and the human beings who need such care, asserts its power. Criminalized people—who may have been jailed, had their children removed from their care, faced the loss of their jobs, homes, health, and resources, as well as the twin stigmas of criminalization and anti‑abortion rhetoric—have been subjected to the brutality of state violence, with little to no control over how their private reproductive experiences are shared with the public, in the press, in social media, and to judges and juries. Consequently, at If/When/How, in addition to fulfilling our ethical obligation to our clients to keep even the fact of our representation privileged and confidential, we limit our public discussion of our clients’ cases to situations where they have given their informed consent and only when we determine together that public discussion poses no risks that the state will further target them, or that individuals will harass, threaten, dox, or abuse them or their families. We follow that practice in this Article, as well. ↑
- Rep. for Sent’g at 2, State v. Gillum, No. 2020 CR 00088 (Ohio C.P. Licking Cnty. July 15, 2021). ↑
- Id. ↑
- Id. at 2–7; Defendant’s Response to State’s Motion in Limine Regarding Expert Witness Dr. Karla Fischer at 2–4, Gillum, No. 2020 CR 00088. ↑
- Rep. for Sent’g, supra note 96, at 2–7. ↑
- See id. at 3–6 (recounting the history of intimate partner violence against Kalina as she recalled it). ↑
- Id. at 7; Merit Brief of Kalina Gillum at 1, State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008. Whether Kalina experienced a pregnancy loss or instigated a self‑managed abortion was a contested issue in her case, as was the question of whether she had a stillbirth or an extremely premature baby who died after birth. See Gillum, 2022 WL 2118008, at ¶¶ 12, 16–17 (noting that the jury was required to make a “‘Special Finding’ that ‘Cayden Gillum was born alive’ in order to convict” Kalina). Note, however, pregnancy loss, perinatal loss, and self‑managed abortion were not crimes in Ohio in September 2019 and are not crimes now. Ohio Rev. Code Ann. § 2901.01(B)(2)(b)(i)–(v) (2025) (prohibiting prosecutions for actions or omissions during pregnancy that result in fetal or neonatal death or injury to a baby after birth); cf. State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (interpreting a child endangerment statute as inapplicable to a pregnant defendant when the alleged victim is her unborn child and the alleged misconduct was the defendant’s use of drugs during her pregnancy). ↑
- Rep. for Sent’g, supra note 96, at 15–16; Gillum, 2022 WL 2118008, at ¶¶ 7−8. ↑
- Rep. for Sent’g, supra note 96, at 15–17; Gillum, 2022 WL 2118008, at ¶¶ 2−3. ↑
- Gillum, 2022 WL 2118008, at ¶ 2. ↑
- Id.; Merit Brief of Kalina Gillum, supra note 101, at 1. ↑
- Gillum, 2022 WL 2118008, at ¶ 2. If/When/How’s research revealed that, of the sixty‑one people criminalized for alleged self‑managed abortion or helping another person self‑manage between 2000 and 2020, 45 percent were reported to law enforcement by a care provider—either a health care provider or a social worker. Huss et al., supra note 1, at 31. In addition to the ethical and public health implications of violating a patient’s trust and privacy in this manner, and the negative consequences of criminalization to their health, such reports are not only not required by law, but they are prohibited by the Health Insurance Portability and Accountability Act and state medical privacy laws. Id.; see also Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, Am. Coll. of Obstetricians & Gynecologists: Pol’y & Position Statements, https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period [https://perma.cc/62G7-RBGD] (last updated July 2024) (opposing criminalizing people for their conduct or omissions that may have a harmful impact on their pregnancy or pregnancy outcomes, explaining that these “[p]olicies and practices that criminalize individuals during pregnancy and the postpartum period create fear of punishment that compromises this relationship and prevents many pregnant people from seeking vital health services” and “have a long history of inequitable application to historically‑marginalized populations, especially people of color and people with lower incomes”). ↑
- Defendant’s Motion to Suppress at 5–7, State v. Gillum, No. 2020 CR 00088 (Ohio C.P. Licking Cnty. July 15, 2021). Licking County Hospital, where Ms. Gillum received emergency care, has its own on‑site police force that “assist[s] outside law enforcement agencies.” Behind the Scenes—LMH Police, Licking Mem’l Health Sys. (May 28, 2020, at 11:05 AM), https://www.lmhealth.org/Community/Licking-Memorial-Health-Systems-Community-Blog/May-2020/Behind-the-Scenes-LMH-Police [https://perma.cc/9C4U-UWPW]; see also #CopsOutOfCare Working Grp., supra note 79 (discussing the ways in which the intertwined systems of hospitals and police lead to criminalization, as well as fear of seeking medical care at all). ↑
- Defendant’s Motion to Suppress, supra note 107, at 5–6. ↑
- Id. at 2, 9–10; Gillum, 2022 WL 2118008, at ¶ 7. A gentle reminder to readers to know your rights. You do not have to give your phone and/or its passcode to law enforcement unless they have a warrant for it signed by a judge. See Riley v. California, 573 U.S. 373, 403 (2014) (“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”). ↑
- Gillum, 2022 WL 2118008, at ¶¶ 3–4, 6. ↑
- Id. at ¶ 4. ↑
- Id. at ¶ 9. ↑
- Id. at ¶ 12 (granting motion for acquittal of involuntary manslaughter); id. at ¶ 17 (finding Kalina guilty of endangering, tampering, and abuse of a corpse). ↑
- See Transcript of Sent’g Hearing at 16, State v. Gillum, No. 2020 CR 00088 (Ohio C.P. Licking Cnty. July 15, 2021); Kent Mallett, Judge Sentences Lexington Mom to Probation in Heath Infant Death Case, Newark Advoc.: News, https://www.newarkadvocate.com/story/news/2021/07/15/judge-sets-aside-jury-verdict-infant-death-case-mom-gets-probation/7977901002 [https://perma.cc/2UZG-BB35] (last updated July 15, 2021, at 2:23 PM). ↑
- Motion to Dismiss at 2–7, Gillum, No. 2020 CR 00088; Merit Brief of Kalina Gillum, supra note 101, at 1, 16–17. ↑
- See Gillum, 2022 WL 2118008, at ¶¶ 25–34 (considering and rejecting Kalina’s arguments that the trial court erred in denying her motion to dismiss the indictment prior to trial). ↑
- Transcript of Jury Trial at 9–11, Gillum, No. 2020 CR 00088 (May 13, 2021). ↑
- Defendant’s Omnibus Motions in Limine at 5–16, Gillum, No. 2020 CR 00088. ↑
- Ohio Rev. Code Ann. § 2903.09(C)(2)(a)–(e) (2025). ↑
- Transcript of Jury Trial, supra note 117, at 9–11. Prosecutors have made similar arguments in other pregnancy criminalization cases. See, e.g., Akers v. State, 331 A.3d 853, 882 (Md. 2025) (reversing the defendant’s conviction for second degree murder and holding that evidence that she considered having an abortion and did not obtain prenatal care has no relevance to whether she harmed her newborn infant). ↑
- Defendant’s Omnibus Motions in Limine, supra note 118, at 5–16. ↑
- Transcript of Jury Trial, supra note 117, at 11. ↑
- Merit Brief of Kalina Gillum, supra note 101, at 3–4, 6–7, 18–20. ↑
- State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶¶ 9, 13. ↑
- Id. at ¶¶ 11, 39–45. Such dubious “scientific” testimony is frequently admitted in pregnancy criminalization cases. See Ahmed, supra note 31, at 1125–27 (explaining that the floating lung test’s repeated false positives make it unreliable); see also Yveka Pierre, Gatekeeping Unreliable Forensic Evidence in Pregnancy Criminalization Cases: Good Fences Make Good Neighbors, Crim. Just., Summer 2025, at 14, 16 (noting that none of the “signs of life” described by medical examiners and forensic pathologists are conclusive and tend to depend on the “lens through which an investigator views the facts . . . and what narratives are given to experts”); Alison Krywanczyk et al., The National Association of Medical Examiners Position Paper on the Investigation and Certification of Fetal Demise, Stillborn, and Early Neonatal Deaths, 47 Am. J. Forensic Med. & Pathol 15, 21 (2025) (questioning the continued use of the lung float test, explaining that “few studies have systematically examined the potential for false‑positive or false‑negative results” and that “unlike gross photographs or glass slides, the lung float test cannot be replicated or reviewed by another forensic pathologist after the original autopsy”). ↑
- In contrast to the State’s opening assertions, testimony established that Braden put the deceased infant’s body in a plastic bag in the shoebox. See Transcript of Jury Trial, supra note 117, at 34, 182. ↑
- Gillum, 2022 WL 218008, at ¶¶ 8, 17, 32. ↑
- Id. at ¶ 12. ↑
- Reply Brief of Kalina Gillum at 2–3, State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008; Defendant’s Response to State’s Motion in Limine Regarding Expert Witness Dr. Karla Fischer, supra note 98, at 9–13. ↑
- See, e.g., State v. Haines, 2006‑Ohio‑6711, 860 N.E.2d 91, at ¶¶ 29–32, 65 (citing State v. Koss, 551 N.E.2d 970, 973–74 (Ohio 1990)) (reviewing Ohio caselaw and holding that an expert on intimate partner violence evidence is admissible both in support of an affirmative defense and during the State’s own case in chief “to aid the trier‑of‑fact in determining the victim’s state of mind, e.g., to explain why she returned to the defendant despite his aggressions towards her”). ↑
- See, e.g., id. at ¶ 44 (citation omitted) (observing that such evidence can be “relevant and helpful” in explaining a victim’s actions and credibility, “such as prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting . . . or recanting allegations”); State v. Fry, 2010‑Ohio‑1017, 926 N.E.2d 1239, at ¶ 93 (“Here, testimony about the ‘cycle of violence’ was relevant in explaining Hardison’s actions, such as talking to Fry twice on the phone on the day of his arrest, obtaining money to post bail, and asking the judge to drop the case.”); State v. Kraus, No. 2006‑10‑114, 2007‑Ohio‑6027, 2007 WL 3348426, at ¶¶ 39–40 (citing State v. Dyson, No. 2000CA2, 2000 WL 1597952, at *1 (Ohio Ct. App. Oct. 27, 2000)) (“Appellee introduced the testimony of Ms. Wilson to help the jury understand domestic violence, the dynamics of relationships in which domestic violence occurs, and the effects domestic violence can have on victims like K.F. Other courts in this state have upheld a trial court’s decision to allow such expert testimony on . . . ‘the frequency with which victims recant their stories of abuse due to the control that the perpetrator has over them and their own feelings of being responsible for the abuse.’”). ↑
- See State v. Lillo, No. H‑10‑001, 2010‑Ohio‑6221, 2010 WL 5271307, at ¶¶ 14, 21–22, 30–31 (recognizing that “battered woman syndrome” evidence “could have been” offered to “assist the jury in determining whether the defendant acted out of a reasonable belief that she was in imminent danger” to support an affirmative defense of duress but ultimately holding that the failure to give jury instructions on such in this case was harmless error because “the duress instruction [wa]s nearly identical” (emphasis added)). But see State v. Sorah, No. CA2006‑08‑056, 2007‑Ohio‑5898, 2007 WL 3243536, at ¶¶ 46–47 (rejecting general use of expert testimony about intimate partner violence to negate mens rea element for child endangering charge). ↑
- Transcript of Oral Hearing at 10–12, State v. Gillum, No. 2020 CR 00088 (Ohio C.P. Licking Cnty. May 10, 2021). ↑
- Id. at 12; accord Transcript of Jury Trial at 690–94, Gillum, No. 2020 CR 00088 (May 18, 2021). ↑
- Merit Brief of Kalina Gillum, supra note 101, at 20–23. ↑
- State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶ 17. ↑
- Rep. for Sent’g, supra note 96. ↑
- Transcript of Sent’g Hearing, supra note 114, at 8. ↑
- Braden Mull was charged with the same crimes as Kalina: involuntary manslaughter, endangering a child, abuse of a corpse, and tampering with evidence. Michaela Sumner, Newark Man Pleads Guilty to Charges in Infant’s Death After Abortion Attempt, Newark Advoc.: News, https://www.newarkadvocate.com/story/news/2020/10/27/newark-man-pleads-guilty-some-charges-attempted-abortion-case/3745442001 [https://perma.cc/N4ZK-8DPH] (last updated Oct. 27, 2020, at 11:52 AM). He pled guilty to endangering a child and abuse of a corpse in a plea deal in exchange for dismissal of the two other charges and for his agreement to testify against Kalina. Id. He was sentenced to one year of incarceration. Kent Mallett, Newark Man Gets 1‑Year Sentence, Could Serve Much Less in Infant Death Case, Newark Advoc.: News (May 28, 2021, at 12:37 PM), https://www.newarkadvocate.com/story/news/2021/05/28/newark-man-gets-1-year-sentence-infant-death-case/7487575002 [https://perma.cc/KN6P-3TEA]. However, the State never called Braden to testify in Kalina’s trial. See Transcript of Jury Trial, supra note 117, at 3–6 (listing the witnesses called by both sides throughout the course of the trial, none of whom are Braden). ↑
- Transcript of Sent’g Hearing, supra note 114, at 16–17 (confirming that “the state took no position with regard to what sentence Braden should receive” before sentencing Kalina to probation). ↑
- Id. at 16. ↑
- Merit Brief of Kalina Gillum, supra note 101, at 20–23. ↑
- State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶¶ 58–60. The appellate court’s reasoning centered on the fact that the trial court’s initial decision to exclude Dr. Fischer’s testimony was an “in limine ruling.” Id. at ¶ 58. Because the defense did not call Dr. Fischer to testify during trial, lodge an additional objection during trial, or make a proffer as to what Dr. Fischer’s testimony would have been, the appellate court found that the right to object to the exclusion of Dr. Fischer’s testimony had been waived. Id. at ¶ 61. ↑
- See Memorandum in Support of Jurisdiction of Appellant Kalina Gillum at 1–2, State v. Gillum, 2022‑Ohio‑3546, 195 N.E.3d 1050 (unpublished table decision) (explaining that two key trial court rulings prejudiced Ms. Gillum and warranted discretionary review, neither of which was the trial court’s failure to admit intimate partner violence evidence). ↑
- Gillum, 2022‑Ohio‑3546 (denying discretionary review). ↑
- The error is of constitutional magnitude. Cf. United States v. Odeh, 815 F.3d 968, 977 (6th Cir. 2016) (holding that it was constitutional error to categorically exclude evidence of PTSD and torture for a defendant charged with making false statements in an immigration proceeding and that this error deprived her of her constitutional right to a fair trial). ↑
- The records of this juvenile criminal proceeding are sealed from the public. See generally Ark. Code Ann. § 9‑35‑405 (2025) (generally prohibiting the disclosure of juvenile records and providing for explicit circumstances in which they can be unsealed). Such records are typically expunged when the minor turns twenty‑one. Id. § (b)(2). Accordingly, this Section references only the discussion in the published appellate decision, Minor Child v. State, 2024 Ark. App. 393, 701 S.W.3d 751. ↑
- Stephen Simpson, Arkansas Attorney General Implements State’s Abortion Ban; Governor Hails Court’s Decision, Ark. Democrat Gazette, https://www.arkansasonline.com/news/2022/jun/24/watch-live-arkansas-attorney-general-governor-to-certify-trigger-law-discuss-rulings-effect-on-state [https://perma.cc/4KDZ-PJ6V] (last updated June 24, 2022, at 3:05 PM). ↑
- Minor Child, 2024 Ark. App. 393, at 1, 701 S.W.3d at 754. ↑
- See id. at 18, 701 S.W.3d at 763 (rejecting State’s argument that “evidence that [MC] . . . took the abortion pills to terminate her pregnancy was relevant to the court’s findings that she and Matthew planned, participated, and committed the offense in a premeditated, willful, and violent manner”). ↑
- Id. at 4–5, 701 S.W.3d at 755–56. ↑
- Id. at 4, 701 S.W.3d at 756. ↑
- Id. ↑
- Id. at 6, 701 S.W.3d at 756–57. ↑
- Id. at 31–32, 701 S.W.3d at 770–71. ↑
- Id. at 7–8, 701 S.W.3d at 757. ↑
- Id. ↑
- Id. at 9, 701 S.W.3d at 758. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 9–10, 701 S.W.3d at 758. ↑
- Id. ↑
- Id. ↑
- Id. at 3, 701 S.W.3d at 755. ↑
- Id. ↑
- Id. ↑
- Id. at 4, 701 S.W.3d at 755. The difference between being charged as an adult and as a juvenile is stark. For example, children and youth tried in adult court face longer sentences. Edward P. Mulvey & Carol A. Schubert, Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court, Juv. Just. Bull., Dec. 2012, at 1, https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/232932.pdf [https://perma.cc/4HHY-E2DA]. And youth treated as adults in criminal courts face heightened risk of experiencing sexual and physical violence, being arrested again, and not finishing school. Youth Tried as Adults, Juv. L. Ctr.: Issues, https://jlc.org/issues/youth‑tried‑adults [https://perma.cc/AP5A-SMFD]. ↑
- Minor Child, 2024 Ark. App. 393, at 3, 701 S.W.3d at 755. ↑
- Id. at 1, 701 S.W.3d at 754. ↑
- Judges must consider whether the offense involved violence, the culpability of the juvenile in the offense, the juvenile’s previous history, the maturity or sophistication of the juvenile, whether the juvenile acted alone, the likelihood that they will benefit from supportive services, and any reports relating to the juvenile’s mental, physical, educational, and social history. Ark. Code Ann. § 9‑35‑412(g) (2025). ↑
- Minor Child, 2024 Ark. App. 393, at 16–19, 23–27, 701 S.W.3d at 762–64, 766–68. ↑
- Id. at 6, 701 S.W.3d at 756–57. ↑
- Id. at 29, 701 S.W.3d at 769. Dr. Fischer is a recognized national expert on intimate partner violence who has been qualified as an expert by numerous state and federal courts. See, e.g., United States v. Brown, No. CR. 19‑50085, 2020 WL 708713, at *1–2 (D.S.D. Feb. 12, 2020) (qualifying Dr. Fischer to testify about domestic violence following Daubert hearing and concluding that “Dr. Fischer can opine whether Ms. Brown’s behavior in killing the decedent is consistent with the behavior of a battered person”). ↑
- Minor Child, 2024 Ark. App. 393, at 10, 701 S.W.3d at 759. ↑
- Id. at 17, 21–23, 25–26, 28, 701 S.W.3d at 762, 765–68. ↑
- Id. at 34, 701 S.W.3d at 772. Minor Child was the first time an Arkansas appeals court had reversed a juvenile transfer decision in over two decades. John Lynch, Appeals Court Overturns Decision to Try Sevier County 17‑Year‑Old as Adult in Baby’s Death, Ark. Democrat Gazette (June 10, 2024), https://www.arkansasonline.com/news/2024/jun/10/appeals-court-overturns-decision-to-try-sevier [https://perma.cc/CM2N-ZAKQ]. A defendant’s attorney in a subsequent juvenile transfer case called the decision “a seismic event.” Rolfe v. State, 2024 Ark. App. 603, at 5 n.1, 703 S.W.3d 510, 513 n.1. ↑
- Minor Child, 2024 Ark. App. 393, at 10, 701 S.W.3d at 771. ↑
- Id. at 17–18, 701 S.W.3d at 762–63 (citing Bynum v. State, 2018 Ark. App. 201, 546 S.W.3d 533). ↑
- Id. at 18–19, 701 S.W.3d at 763–64 (citing Ark. Code Ann. § 5‑61‑404(c)(1) (2025)). ↑
- Id. at 29, 701 S.W.3d at 769. ↑
- Lenore E. Walker, The Battered Woman (1st ed. 1979). ↑
- Battered woman syndrome combined two theories: the cycle of violence and learned helplessness. The cycle of violence purportedly came from Dr. Walker’s research (though others have subsequently called her data into question). In her 1979 book, The Battered Woman, Dr. Walker described the cycle of violence as having three phases: the tension building phase, the acute battering phase, and the honeymoon phase. Id. at 55. Dr. Walker argued that battered women experienced learned helplessness (a concept taken from psychologist Martin Seligman’s work with abused dogs), rendering them incapable of leaving violent relationships. Id. at 42–52. But see Christopher Peterson et al., Learned Helplessness: A Theory for the Age of Personal Control 239 (1993) (concluding that Dr. Walker’s results “do not constitute the best possible support for concluding that these women show learned helplessness”). Dr. Walker contended that as the cycle of violence increased in frequency and severity, women who had previously been immobilized were forced to kill in order to escape their abusive partners. See Walker, supra note 183, at 53–55 (“As we begin to see more battered women, we also realize the high probability that as the violence escalates, they will eventually be killed by or kill their men.”). Dr. Walker’s original theory has since been criticized for, among other things, failing to accurately represent the findings of her research and its stigmatizing effect on people subjected to abuse. E.g., Anne M. Coughlin, Excusing Women, 82 Calif. L. Rev. 1, 5–7 (1994); David L. Faigman, The Battered Woman Syndrome and Self‑Defense: A Legal and Empirical Dissent, 72 Va. L. Rev. 619, 621–23 (1986); David L. Faigman & Amy J. Wright, The Battered Woman Syndrome in the Age of Science, 39 Ariz. L. Rev. 67, 69 (1997). Dr. Walker herself reconceptualized the theory in later, expanded editions of The Battered Woman Syndrome. Lenore E. Walker, The Battered Woman Syndrome 41–42 (3d ed. 2009). Federal agencies, scholars, and advocates have urged that courts admit expert testimony on intimate partner violence and its effects rather than requiring experts to testify on battered woman or spouse syndrome. See, e.g., Nat’l Inst. of Just. & Nat’l Inst. of Mental Health, NCJ No. 160972, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (1996) (concluding ultimately that the terminology of “battered women’s syndrome” limits the trier‑of‑fact from understanding the issues and encourages stereotypes); Sue Osthoff & Holly Maguigan, Explaining Without Pathologizing: Testimony on Battering and Its Effects, in Current Controversies on Family Violence 225, 236–37 (Donileen R. Loseke et al. eds., 2d ed. 2005) (describing the need to “move beyond the limitation” of battered woman syndrome testimony). The law has yet to catch up to the theory, which may be one reason why admission of evidence of intimate partner violence in cases that do not involve self‑defense is still contested. ↑
- Battered Woman Syndrome, 10 Geo. J. Gender & L. 333, 333–34 (2009); see also Arcoren v. United States, 929 F. 2d 1235, 1243 (8th Cir. 1991) (citing state court cases in holding that the district court did not err by admitting evidence of battered woman syndrome under Federal Rule of Evidence 702). ↑
- See, e.g., Fla. R. Crim. P. 3.201; Md. Code Ann., Cts. & Jud. Proc. 10‑916 (2025); Mo. Rev. Stat. § 563.033 (2025); S.C. Code § 17‑23‑170 (2025). ↑
- § 563.033. ↑
- See, e.g., Ky. Rev. Stat. § 503.050(3) (2025) (“Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse . . . by the person against whom the defendant is charged with employing physical force shall be admissible under this section.”); La. Code Evid. Ann. art. 404(B)(2) (2025) (“[W]hen the accused pleads self‑defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship . . . it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence . . . .”); Va. R. Evid. 2:409 (“In any criminal prosecution alleging personal injury or death, or the attempt to cause personal injury or death, relevant evidence of repeated physical and psychological abuse of the accused by the victim shall be admissible . . . .”). ↑
- See, e.g., Johnson v. United States, 860 F. Supp. 2d 663, 820 (N.D. Iowa 2012) (finding ineffective assistance during the mitigation phase of sentencing based on counsel’s failure to counter the prosecution’s theory with evidence of battered woman syndrome); State v. Curley, 2016‑1708, p. 1 (La. 6/27/18), 250 So. 3d 236, 237–38 (concluding that the failure to investigate battered woman syndrome defense constituted deficient performance of counsel and prejudiced the defendant). But see State v. Sallie, 693 N.E. 2d 267, 271 (Ohio 1998) (holding the failure to present expert testimony on battered woman syndrome did not constitute ineffective assistance of counsel); People v. Rollock, 577 N.Y.S.2d 90, 91 (N.Y. App. Div. 1991) (holding that counsel’s failure to introduce expert testimony on battered woman syndrome did not constitute ineffective assistance). ↑
- Fed. R. Evid. 404. ↑
- United States v. James, 169 F.3d 1210, 1214 (9th Cir. 1999). ↑
- See, e.g., Ala. R. Evid. 404(a)(2)(A)(i) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . . [i]n Criminal Cases . . . [e]vidence of a pertinent trait of character of the victim of the crime offered by an accused . . . .”); Alaska R. Evid. 404(a)(2) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except . . . [e]vidence of a relevant trait of character of a victim of crime offered by an accused . . . .”); Colo. R. Evid. 404(a)(2) (“Evidence of a person’s character of a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except . . . [i]n a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused . . . .”); Conn. Code Evid. § 4‑4(a)(2) (“Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible . . . [e]vidence offered by an accused in a homicide or criminal assault case, after laying a foundation that the accused acted in self‑defense, of the violent character of the victim to prove that the victim was the aggressor . . . .”); Del. R. Evid. 404(a)(1)–(2)(B) (“Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The following exceptions apply in a criminal case: . . . [A] defendant may offer evidence of an alleged victim’s pertinent trait . . . .”); Fla. Stat. § 90.404(1)(b)(1) (2025) (same); Ga. Code Ann. § 24‑4‑404(a)(2) (2025) (same); Va. R. Evid. 2:404(a)(2) (same). Some states have established this rule in caselaw. See, e.g., Commonwealth v. Dillon, 598 A.2d 963, 964–65 (Pa. 1991) (explaining that “the defendant may introduce evidence of the turbulent or dangerous character of the decedent . . . to corroborate the defendant’s knowledge of the victim’s violent character in an effort to show that the defendant reasonably believed that her life was in danger; and/or . . . to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor”). Chief Justice Nix’s concurrence suggests that the existence of this rule precludes the need to establish battered woman syndrome as “a separate and distinct defense to homicide.” Id. at 967 (Nix, J., concurring). ↑
- Nev. Rev. Stat. Ann. § 48.061(1) (2025). Such expert testimony cannot be offered against the defendant to prove the occurrence of the act that is the basis of the charge, however. Id. § 48.061(2). ↑
- Cal. Evid. Code § 1370 (2025). Statements must have been made within five years of the filing of the action in which they are being offered. Id. § 1370(a)(3). The hearsay exception was enacted after Nicole Brown Simpson’s statements in her diary were excluded from the criminal trial of her ex‑husband, O.J. Simpson, as inadmissible under the hearsay rule. Karleen F. Murphy, Note, A Hearsay Exception for Physical Abuse, 27 Golden Gate U. L. Rev. 497, 500–01 (1997). ↑
- Cal. Evid. Code § 1107 (2025). As in Nevada, this evidence cannot be offered “against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” Id. § 1107(a). The section also asserts the reliability of expert testimony on intimate partner violence and its effects. Id. § 1107(b). ↑
- See, e.g., State v. Haines, 2006‑Ohio‑6711, 860 N.E. 2d 91, at ¶¶ 29–32. Courts have admitted such testimony to support claims of self‑defense and duress and to provide context when a victim’s credibility is at issue. See State v. Koss, 551 N.E. 2d 970, 973–74 (Ohio 1990) (self‑defense); State v. Engle, 684 N.E.2d 1311, 1317 (Ohio C.P. 1997) (mem.) (duress); Haines, 2006‑Ohio‑6711, at ¶¶ 56–65 (credibility). The appellate court in Gillum found that because the defense did not re‑raise the admissibility of expert testimony after the motion in limine to exclude that evidence was granted or attempt to call an expert at trial, the defense had waived its right to object to the exclusion of the testimony. State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶¶ 58–60. ↑
- See, e.g., López‑Correa v. United States, 537 F. Supp 3d 169, 191–92 (D. Puerto Rico 2020) (holding that failure to introduce evidence of intimate partner violence to establish lack of mens rea and support duress defense constituted ineffective assistance of counsel). ↑
- See, e.g., Barrett v. State, 675 N.E. 2d 1112, 1117–18 (Ind. Ct. App. 1996) (recognizing that the defendant should have had the opportunity to offer such evidence to rebut the prosecution’s argument that she “knowingly or intentionally placed the dependent in a dangerous situation” and “reject[ing] the State’s contention that BWS is only relevant in cases in which self‑defense is argued”); State v. Mott, 901 P. 2d 1221, 1225 (Ariz. Ct. App. 1996) (“[Dr.] Karp’s [expert] testimony about Mott’s battered woman characteristics tended to negate the state’s contention that Mott acted with intent or knowledge when she temporarily left Sheena with [her boyfriend] Near, and when she failed to promptly take Sheena to the hospital. The trial court, in failing to recognize the relevance of this testimony, effectively denied Mott the opportunity to present evidence essential to her defense.”). ↑
- See, e.g., Dunn v. Roberts, 963 F.2d 308, 313–14 (10th Cir. 1992) (finding that the state court’s failure to allocate funding for an intimate partner violence expert meant the defendant could not “present[] relevant information directly bearing on an essential element of the crime of which she was convicted”). ↑
- See, e.g., United States v. Marenghi, 893 F. Supp. 85, 87, 97 (D. Me. 1995) (considering and rejecting a state motion in limine to exclude battered woman syndrome in a drug conspiracy case). ↑
- See, e.g., United States v. Haischer, 780 F.3d 1277, 1279 (9th Cir. 2015) (concluding in a conspiracy to commit wire fraud case that “the district court’s decision to exclude all evidence of Haischer’s alleged abuse at the hands of her then‑boyfriend (and alleged co‑conspirator)” was constitutional error). ↑
- See, e.g., State v. Lambert, 312 S.E.2d 31, 35 (W. Va. 1984) (holding that the failure to allow the defendant to present a battered spouse theory along with corresponding proper jury instructions was error because it “left the jury with no criteria with which to determine whether criminal intent had been negated”). ↑
- Leigh Goodmark, The Impact of Prosecutorial Misconduct, Overreach, and Misuse of Discretion on Gender Violence Victims, 123 Dick. L. Rev. 627, 633–34 (2019). ↑
- E.g., Andrea M. Kovach, Prosecutorial Use of Other Acts of Domestic Violence for Propensity Purposes: A Brief Look at Its Past, Present, and Future, 2003 U. Ill. L. Rev. 1115, 1138–39; Lisa DeSanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359, 367–68 (1996). For that reason, DeSanctis drafted and championed legislation allowing courts to consider uncharged acts of domestic violence in domestic violence prosecutions. DeSanctis, supra, at 361–63, 401–02. DeSanctis’ proposed statute became law in 1996. Cal. Evid. Code § 1109 (2025). ↑
- Sherrie Bourg Carter & Bruce M. Lyons, The Potential Impact of Crawford v. Washington on Child Abuse, Elderly Abuse and Domestic Violence Litigation, Champion, Sep./Oct. 2004, at 21, 22; Andrew King‑Ries, Crawford v. Washington: The End of Victimless Prosecution?, 28 Seattle U. L. Rev. 301, 301 (2005). ↑
- King‑Ries, supra note 205, at 308–11. ↑
- Cal. Evid. Code § 1370(a) (2025). ↑
- Id. The statement must have been made at or near the time of the infliction or threat of injury and describe an event that occurred within five years of the filing of the current action. Id. § 1370(a)(3). The statement must be deemed trustworthy and must have been written, recorded electronically, or made to a physician, nurse, paramedic, or law enforcement officer. Id. § 1370(a)(4)–(5). Similarly, Oregon law permits the introduction of hearsay statements made within twenty‑four hours of an incident of domestic violence, regardless of the witness’ availability. Or. Rev. Stat. Ann. § 40.460(26)(a) (2025). The statement must be recorded electronically or in writing or made to law enforcement or medical providers and must be deemed reliable. Id. ↑
- King‑Ries, supra note 205, at 307. ↑
- See, e.g., People v. Dillard, 53 Cal. Rptr. 2d 456, 463–64 (Ct. App. 1996) (admitting expert testimony offered by the prosecution that people with battered spouse syndrome often recant their allegations and discussing other instances where sister courts have done the same). ↑
- See, e.g., United States v. Arcoren, 929 F.2d 1235, 1240 (1990) (“The jury in the present case was faced with a bizarre situation. . . . If the jury concluded that Brave Bird suffered from battered woman syndrome, that would explain her change in testimony—her unwillingness to say something damaging against her husband.”). Arcoren was the first federal case to admit battered woman syndrome evidence. Id. at 1240. The court specifically rejected the defendant’s argument that such evidence should only be admitted to support a claim of self‑defense. Id. at 1241. ↑
- See Jennifer G. Long, Nat’l Dist. Att’ys Ass’n & Am. Prosecutors Rsch. Inst., Introducing Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions 17 (2007) (“[V]ictims often . . . testify on behalf of their batterers. When these behaviors are present in a case, a prosecutor must be ready to address them either through the victim’s testimony or an expert.”). ↑
- Erin R. Collins, The Evidentiary Rules of Engagement in the War Against Domestic Violence, 90 N.Y.U. L. Rev. 397, 425, 427 (2015) (citing cases); accord Kovach, supra note 204, at 1138 (discussing use of evidence of domestic violence to impeach one victim under Cal. Evid. Code § 1109 (2025)). Erin Collins argues that evidence that the witness has been abused by the defendant is not probative of credibility under “traditional impeachment theories” and instead improperly acts to suggest the defendant’s propensity for violence. Collins, supra, at 427; see, e.g., State v. Haines, 2006‑Ohio‑6711, 860 N.E. 2d 91, at ¶¶ 44–45. The Supreme Court of Ohio held that “when a victim’s credibility is challenged upon cross‑examination during the state’s case‑in‑chief, the state may introduce expert testimony regarding battered‑woman syndrome to aid the trier‑of‑fact in determining the victim’s state of mind.” Haines, 2006‑Ohio‑6711, at ¶ 65. The court further held that “to be classified as a battered woman, the couple must go through the battering cycle at least twice. . . . If it occurs a second time, and she remains in the situation, she is defined as a battered woman.” Id. at ¶ 40 (quoting State v. Koss, 551 N.E. 2d 970, 973–74 (Ohio 1990)); see also Arcoren, 929 F.2d at 1243 (noting that the victim recanted her previous statement due to fear of retaliation and to protect her abuser and holding that the district court did not abuse its discretion in admitting relevant evidence that she had contrarily testified at the grand jury hearing). ↑
- Leigh Goodmark, A Troubled Marriage: Domestic Violence and the Legal System 63–70 (2012). ↑
- See generally Goodmark, supra note 10 (discussing how the failure to comply with victim stereotypes exposes intimate partner violence survivors to criminalization). ↑
- Camp, supra note 31, at 291–92; Ann M. Moore et al., Male Reproductive Control of Women Who Have Experienced Intimate Partner Violence in the United States, 70 Soc. Sci. & Med. 1737, 1737 (2010). Theories as to why abuse and pregnancy are linked include jealousy and resentment towards the fetus, increased insecurity and possessiveness resulting from the pregnancy, increased financial strain, decreased physical and emotional availability during pregnancy, and a desire to end the pregnancy. Moore et al., supra, at 1737. Three to 9 percent of pregnant people report being abused during pregnancy. Howard, supra note 9, at 21. ↑
- Moore et al., supra note 216, at 1737. ↑
- Id. ↑
- Sarah CM Roberts et al., Risk of Violence from the Man Involved in the Pregnancy After Receiving or Being Denied an Abortion, BMC Med., Dec. 2014, at 1, 6. ↑
- Camp, supra note 31, at 291–92, 296; Courtenay Schwartz et al., Dobbs in the Context of Intimate Partner Violence: The Case for a Virginia Constitutional Amendment Protecting Reproductive Choice, 26 Rich. Pub. Int. L. Rev. 119, 126, 128 (2023). ↑
- Jacquelyn Campbell et al., Pregnancy‑Associated Deaths from Homicide, Suicide, and Drug Overdose: Review of Research and the Intersection with Intimate Partner Violence, 30 J. Women’s Health 236, 236–37, 240 (2021). ↑
- Karuna S. Chibber et al., The Role of Intimate Partners in Women’s Reasons for Seeking Abortion, 24 Women’s Health Issues e131, e134–36 (2014); see also Karen Trister Grace & Jocelyn C. Anderson, Reproductive Coercion: A Systematic Review, 19 Trauma Violence & Abuse 371, 386 (2018). ↑
- Nat’l Domestic Violence Hotline & If/When/How, Reproductive Coercion and Abuse Report 18 (2024), https://www.thehotline.org/wp-content/uploads/media/2025/04/ReproductiveCoercionAndAbuseReport.pdf [https://perma.cc/HZG5-5G6Y]. ↑
- Id. at 4; see also Grace & Anderson, supra note 222, at 371 (defining reproductive coercion as “behavior that interferes with the autonomous decision‑making of a woman, with regards to reproductive health”); Camp, supra note 31, at 280 (citation omitted) (“Reproductive coercion broadly is the ‘deliberate restriction of options’ intended to control and regulate autonomous and informed decision‑making regarding whether and when to become pregnant, or whether to maintain or terminate an existing pregnancy.”). Some researchers use the term reproductive control instead to describe these behaviors. See, e.g., Moore et al., supra note 216, at 1738 (“Reproductive control occurs when women’s partners demand or enforce their own reproductive intentions whether in direct conflict with or without interest in the woman’s intentions, through the use of intimidation, threats, and/or actual violence.”). Others distinguish reproductive coercion (“the threat of consequences for non‑compliance with a demand”) from control (“the influence one person has over another,” which “encompasses coercion.”). Grace & Anderson, supra note 222, at 371. Although the term “reproductive coercion” is contemporary, Michele Goodwin notes that reproductive coercion and terror, including forced pregnancy, was a regular experience for enslaved Black women. Goodwin, supra note 9, at 47. ↑
- Alexandra Brodsky, “Rape‑Adjacent”: Imagining Legal Responses to Nonconsensual Condom Removal, 32 Colum. J. Gender & L. 183, 184 n.6 (2017); Grace & Anderson, supra note 222, at 381; Elizabeth Miller, Abuse by Birth Control Sabotage, Bedsider (Dec. 19, 2012), https://www.bedsider.org/features/252-abuse-by-birth-control-sabotage [https://perma.cc/2Q68-U3LS]; Moore et al., supra note 216, at 1739 tbl. 1; Schwartz et al., supra note 220, at 126–27. ↑
- Camp, supra note 31, at 281–82; Grace & Anderson, supra note 222, at 1739 tbl. 1. Other forms of “pregnancy pressure” include “manipulating a woman into having sex without contraception . . . ; threatening to leave a woman if she doesn’t get pregnant; accusing a woman of using birth control in order to be promiscuous; scaring a partner about side effects of birth control with the intent to prevent her from using it; or asserting that if his girlfriend ‘really loved’ him she would have a baby with him.” Camp, supra note 31, at 281–82 (citing studies on the various forms of pregnancy pressure). ↑
- Grace & Anderson, supra note 222, at 372. ↑
- Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 8. Seventy‑four percent of survey respondents identified themselves as survivors of intimate partner violence, sexual assault, or other gender‑based violence; 17 percent of those who did not identify as survivors reported experiencing sexual coercion. Id. at 4. One could argue, then, that 91 percent of respondents had, in one way or another, identified as victims of intimate partner violence. What is clear from the study is that even people who do not recognize themselves or self‑identify as victims of reproductive coercion are experiencing reproductive coercion. ↑
- Id. at 3. ↑
- Id.; see also Michele C. Black et al., Nat’l Ctr. for Inj. Prevention, National Intimate Partner and Sexual Violence Survey: 2010 Summary Report 48 (2011), https://www.nsvrc.org/wp-content/uploads/2024/11/NISVS_Report2010-a.pdf [https://perma.cc/36DS-UDWE] (finding that almost 9 percent of women report experiencing pregnancy coercion in a 2010 study). ↑
- Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 4. ↑
- Id. at 11. ↑
- Karen Trister Grace, Caring for Women Experiencing Reproductive Coercion, 61 J. Midwifery & Women’s Health 112, 112 (2016) (citing studies). ↑
- Id. ↑
- Id.; see also Grace & Anderson, supra note 222, at 381 (citing studies). ↑
- Sahba Taslim Saravi, Comment, Addressing Abusers Attack on Women’s Right to Reproductive Autonomy: Birth Control Sabotage, 23 Rich. Pub. Int. L. Rev. 91, 98 (2020). ↑
- Camp, supra note 31, at 286–87; Moore et al., supra note 216, at 1738–39 (describing reproductive control as an interference with a woman’s reproductive autonomy). ↑
- Evan Stark, Coercive Control: How Men Entrap Women in Personal Life 4 (2007). The term “coercive control” was first coined by Susan Schechter in 1987 and later popularized by Stark. Susan Schechter, Guidelines for Mental Health Practitioners in Domestic Violence Cases 4 (1987). ↑
- Stark, supra note 238, at 15–16. ↑
- Law professor Rachel Camp explains that resisting pregnancy coercion “may simply be too intimidating, too coercive, or too dangerous” and that the result of pregnancy coercion can be “emotional, physical, and financial dependence that, both in the short and long term, may be exploited by the batterer and used to more easily and effectively dominate and control his pregnant partner.” Camp, supra note 31, at 288. ↑
- For example, reproductive coercion is not a crime and does not provide grounds for obtaining a domestic violence protective order in most states. But see Wash. Rev. Code § 7.105.010(4)(a) (2025) (“‘Coercive control’ means a pattern of behavior that is used to cause another to suffer physical, emotional, or psychological harm, and in purpose or effect unreasonably interferes with a person’s free will and personal liberty.”); Cal. Fam. Code § 6320(c) (2025) (defining coercive control as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty”); see also § 6320(c)(5) (providing reproductive coercion as a form of coercive control, then defining the former as “consist[ing] of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes”). ↑
- Roberts et al., supra note 219, at 1 (citing studies); see also Chibber et al., supra note 222, at e136 (finding that about 10 percent of women who sought abortions reported experiencing intimate partner violence in the previous year). ↑
- Roberts et al., supra note 219, at 3. ↑
- Jay G. Silverman et al., Male Perpetration of Intimate Partner Violence and Involvement in Abortions and Abortion‑Related Conflict, 100 Am. J. Pub. Health 1415, 1416 (2010). ↑
- Id. ↑
- Chibber et al., supra note 222, at e134–36 (noting that 2.5 percent of all women who sought abortions did so because of concerns about abuse and that 23 percent of women who reported intimate partner violence said that having an abusive partner motivated their decision); see also Marisa Iati, Without Abortion, Advocates Worry that Abuse Victims Will Be Trapped, Wash. Post (July 9, 2022), https://www.washingtonpost.com/nation/2022/07/09/abortion-domestic-violence-abuse [https://perma.cc/JJ6N-8N96] (“When Katherine found out that she was pregnant, the man who was allegedly abusing her . . . was by her side. He celebrated. She burst into tears. Katherine . . . couldn’t imagine being forever tied to a man who she feared could hurt their child. She decided immediately to have an abortion.”). ↑
- Iati, supra note 246. ↑
- Roberts et al., supra note 219, at 5. ↑
- Id.; see also Alice Cruse, Iowa’s Abortion Law Is Dangerously Vague, Iowa Health Providers, Advocates, and Democrats Warn, Little Vill. (Feb. 17, 2025), https://littlevillagemag.com/iowas-abortion-law-is-dangerously-vague-iowa-health-providers-advocates-and-democrats-warn [https://perma.cc/GS3L-BGLT] (noting that “intimate partner violence is one of the most common reasons she [an Iowa City‑based abortion provider] sees women seeking an abortion”). ↑
- Moore et al., supra note 216, at 1741 (alterations in original) (“I was real scared; I didn’t wanna have a baby. I just got into [college] on full scholarship, I just found out, I wanted to go to college and didn’t want to have a baby but I was really scared. I was scared of him.”). Other tactics used to prevent women from seeking abortion included begging, badgering, withholding the money to have an abortion, interfering with the preparation for the procedure, destroying property in the clinic, refusing to leave a partner alone with a doctor, threatening self‑harm, and withholding transportation. Id.; see also Goodwin, supra note 9, at 46 (describing one woman whose boyfriend “would simply not let . . . [her] out of his sight and reach”); Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 12–13 (noting that 7 percent of respondents reported being prevented from having a medication abortion and 9 percent experienced or were threatened with violence when they expressed a desire to have or attempted to have an abortion). Intimate partner violence may also result from a person’s refusal to seek an abortion. Women report being assaulted by partners trying to force miscarriages and threatened with violence if they do not seek an abortion. Chibber et al., supra note 222, at e132 (citing studies). ↑
- Huss et al., supra note 1, at 15. ↑
- Twenty‑four states require counseling before a person can obtain an abortion. In twenty‑two of those states, there is a waiting period between the counseling and the abortion ranging from eighteen to seventy‑two hours. Thirteen states require that counseling be in person, which means making two trips to the provider before receiving an abortion. Talia Curhan, Counseling and Waiting Period Requirements for Abortion, guttmacher, https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion [https://perma.cc/2FN4-LGZM] (last updated Feb. 6, 2026). ↑
- See Saeed Husseini Barghazan et al., Economic Evaluation of Medical Versus Surgical Strategies for First Trimester Therapeutic Abortion: A Systematic Review, J. Educ. & Health Promotion, June 2022, at 1, 1, 4, https://pmc.ncbi.nlm.nih.gov/articles/PMC9393924 [https://perma.cc/A8TN-S67Z] (reviewing twenty studies from around the world and finding that medical abortions are between $6 and $2,373 cheaper than surgical abortions). ↑
- Roberts et al., supra note 219, at 5; see also Aixa Garcia‑Ramos & Mayra Pineda‑Torres, Access to Abortion and Intimate Partner Violence 2 (Aug. 31, 2025) (unpublished manuscript not yet peer reviewed), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5417185&dgcid=ejournal [https://perma.cc/KLT5-CV6W] (finding that legalization of abortion in Mexico City decreased intimate partner violence by 9 percent). ↑
- Roberts et al., supra note 219, at 5. ↑
- Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 14. ↑
- See Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1051 (1991) (describing abused women’s legal difficulties when leaving with children and their reluctance to flee without them); Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 Am. U. J. Gender Soc. Pol’y & L. 657, 717 (2003) (describing the skepticism that protective parents, particularly mothers, face when seeking to protect their children from abuse through the family law system). ↑
- Schwartz et al., supra note 220, at 138. State‑created obstacles to abortion, like waiting periods, prohibitive requirements for providers and clinics who perform abortions, and unnecessary and invasive procedures for people seeking abortions, facilitate these exercises of control. Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 18. ↑
- Kebé et al., If/When/How, A Repro Legal Helpline Report: State Violence and the Far‑Reaching Impact of Dobbs 24 (2024), https://ifwhenhow.org/wp-content/uploads/2024/06/Repro-Legal-Helpline-Report-June-24.pdf [https://perma.cc/7ELC-YTTM]. ↑
- Id. at 24–25; Eleanor Klibanoff, Three Texas Women Are Sued for Wrongful Death After Allegedly Helping Friend Obtain Abortion Medication, Tex. Trib., https://www.texastribune.org/2023/03/10/texas-abortion-lawsuit [https://perma.cc/V5W3-5LJV] (last updated Mar. 10, 2023, at 4:27 PM); see also In re Silva, 692 S.W.3d 324, 325 (Tex. 2024) (Blacklock, J., concurring) (mem.) (disagreeing with appellate court’s lack of analysis but agreeing with the ultimate disposition—denial of plaintiff’s petition for writ of mandamus requesting review of the appellate court action to vacate the trial order’s broad discovery order—because the plaintiff ex‑husband’s “atrocious treatment” of his ex‑wife, which included attempting to subpoena her health records and private communications with the defendants, made him “a particularly unsuitable beneficiary of this Court’s discretionary mandamus jurisdiction”). ↑
- Collin Davis, represented by “a high‑powered anti‑abortion attorney,” used “an unusual legal mechanism often used in Texas to investigate suspected illegal actions before a lawsuit is filed,” alleging that he could sue under either Texas’ wrongful death statute or Senate Bill 8, which authorizes actions “against anyone who ‘aids or abets’ an illegal abortion.” Caroline Kitchener, Texas Man Files Legal Action to Probe Ex‑Partner’s Out‑Of‑State Abortion, Wash. Post (May 3, 2024), https://www.washingtonpost.com/investigations/2024/05/03/texas-abortion-investigations [https://perma.cc/VTJ2-7TMV]. ↑
- Caroline Kitchener, Antiabortion Advocates Look for Men to Report Their Partners’ Abortions, Wash. Post (Jan. 17, 2025), https://www.washingtonpost.com/investigations/2025/01/17/texas-abortion-pills-lawsuit [https://perma.cc/35V9-95NY]. In one such case, a man filed a complaint with the Texas attorney general when his girlfriend sought emergency care after taking mifepristone and misoprostol. Cecilia Nowell, Texas Judge Fines New York Doctor for Mailing Abortion Pills to Patient in Texas, Guardian (Feb. 13, 2025, at 9:13 PM), https://www.theguardian.com/world/2025/feb/13/texas-abortion-pills-shield-laws-new-york-doctor [https://perma.cc/B2HQ-HWF9]. A Texas court ordered Dr. Margaret Daley Carpenter, a New York doctor, to stop seeing patients to provide abortion care remotely and fined her more than $100,000. Id. ↑
- The family policing system is also known as the child welfare system. Roberts, supra note 71, at 24. ↑
- Kebé et al., supra note 259, at 24–25. For example, one caller to If/When/How’s Repro Legal Helpline described how her partner “threatened to report her and her family members to the police for her self‑managed abortion. Specifically, he threatened to give police screenshots from a text conversation about how her family may have supported her in accessing abortion pills.” Id. ↑
- In its survey of criminal proceedings involving people who self‑managed abortions from 2000 to 2020, If/When/How found that 57 percent of those who became involved with the family policing system either temporarily or permanently lost custody of their children. Huss et al., supra note 1, at 54. A Michigan appellate court, for example, upheld a lower court’s decision that partially justified terminating a mother’s parental rights based on her attempt to end her pregnancy through self‑managed abortion. Id. at 55. ↑
- Racism influences who is reported to these systems and how they fare once they are reported. Id. at 31–32; Kebé et al., supra note 259, at 12; Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 18. ↑
- See generally Jude Mary Cénat et al., Overrepresentation of Black Children in the Child Welfare System: A Systematic Review to Understand and Better Act, Child. & Youth Servs. Rev., Jan. 2021, at 1 (observing that the overrepresentation of Black children in family policing has been “reported continuously,” but is still “poorly understood”); Dorothy Roberts, Shattered Bonds: The Color of Child Welfare, at vi (2002) (detailing and offering solutions to address the extreme racial disparity in children living in foster care in Chicago and nationwide and noting that 95 percent of children in foster care in Chicago were Black children). ↑
- Doris Marie Provine, Institutional Racism in Enforcing Immigration Law, Norteamérica (Special Issue), 2013, at 31, 35–36, 39–43. The Supreme Court recently upheld the use of racial profiling in immigration enforcement in Noem v. Perdomo, 146 S. Ct. 1, 3 (2025) (mem.) (Kavanaugh, J., concurring) (finding racial profiling permissible because immigration officers rely on their experience and “might not rely only on those factors if and when they stop plaintiffs in the future”). ↑
- The thirteen states were Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. Elizabeth Wolfe, 13 States Have Passed So‑Called ‘Trigger Laws,’ Bans Designed to Go into Effect if Roe v. Wade Is Overturned, CNN, https://www.cnn.com/2022/05/03/us/state-abortion-trigger-laws-roe-v-wade-overturned [https://perma.cc/9DGR-JYSV] (last updated May 3, 2022, at 1:00 PM). Some states have also tried to rely on laws criminalizing abortion pre‑Roe, arguing that those laws, which had been nullified by Roe, were once again valid once Roe was overturned. Klibanoff, supra note 260. ↑
- For a current map of state abortion laws maintained by If/When/How, see Legal Services for Your Reproductive Life, Repro Legal Helpline, https://reprolegalhelpline.org [https://perma.cc/AGT4-W88X]. ↑
- Meg O’Connor, Abortion ‘Trafficking’ Laws, Travel Bans, Medication Crackdowns: How the GOP Is Criminalizing Abortion Post‑Dobbs, Appeal (July 2, 2024), https://theappeal.org/how-republicans-are-cracking-down-on-abortion-after-roe [https://perma.cc/5M4L-9ZRG]. Many of these laws are being challenged in the courts. E.g., Rebecca Boone, Federal Judge Puts Idaho’s ‘Abortion Trafficking’ Law on Hold During Lawsuit, Associated Press, https://apnews.com/article/idaho-abortion-trafficking-travel-ban-270a403d7b4a5e99e566433556614728 [https://perma.cc/VK4C-2SEV] (last updated Nov. 9, 2023, at 7:20 PM). While news reports have called this behavior “abortion trafficking,” at least one court has rejected that label as inaccurate. Matsumoto v. Labrador, 122 F.4th 787, 804–05 (9th Cir. 2024). ↑
- La. Stat. Ann. §§ 40:964(Schedule IV)(F), 40:969(C)(1)(b)–(2) (2025); Amna Nawaz & Saher Khan, Louisiana Restricts Access to Abortion Pills by Classifying Them as a Controlled Substance, PBS NewsHour (May 24, 2024, at 6:45 PM), https://www.pbs.org/newshour/show/louisiana-restricts-access-to-abortion-pills-by-classifying-them-as-a-controlled-substance [https://perma.cc/LHX4-Z9TC]. Indiana attempted to pass a similar law. O’Connor, supra note 271. Mifepristone, one of the two drugs reclassified by Louisiana, was also the subject of FDA v. Alliance for Hippocratic Medicine, a suit brought by anti‑choice physicians and associations challenging the FDA’s approval of the drugs and its decisions to modify the conditions for the drugs’ usage. FDA v. All. For Hippocratic Med., 602 U.S. 367, 372–73 (2024). The claims were denied by the Supreme Court, which found that the plaintiffs lacked standing to sue. Id. at 374. ↑
- Kebé et al., supra note 259, at 7–8. ↑
- Id. at 7. Criminalization of abortion is not the only problematic use of the criminal legal system as a response to pregnancy. Criminalizing the circumstances and outcomes of pregnancy through child endangerment and other statutes also deters pregnant people from seeking medical care and undermines the relationships between pregnant people and health care providers. Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, supra note 106. ↑
- Iati, supra note 246. ↑
- Stalkerware apps provide access to “texts, emails, voicemails, searches, browsing history, and movements.” Danielle Keats Citron, Intimate Privacy in a Post‑Roe World, 75 Fla. L. Rev. 1033, 1039–40 (2023). ↑
- See, e.g., Plaintiff’s Original Petition at Ex. 1–5, Silva v. Noyola, No. 23‑CV‑0375 (Tex. Dist. Ct. 56th Oct. 17, 2023) (including screen shots of text messages ex‑husband obtained surreptitiously from his ex‑wife’s phone, which later culminated in the ex‑wife asking the Texas appellate courts for relief—that was later granted—from compelling further disclosures), vacated sub nom., In re Silva, No. 14‑23‑00834‑CV, 2024 WL 1514565 (Tex. App. 14th Apr. 9, 2024) (per curiam), mandamus denied, 692 S.W.3d 324 (Tex.) (mem.); see also supra note 260. ↑
- Citron, supra note 276, at 1041; Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 7; see also Kebé et al., supra note 259, at 24–25 (noting that the frequency of phone calls of individuals fearing that their abusive partner would use reproductive information against them to Repro Legal Helpline increased since Dobbs). ↑
- See, e.g., Kitchener, supra note 261. ↑
- People struggling economically are less able to access abortion care and more likely to experience intimate partner violence. See Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence 36–37 (2018); Goodwin, supra note 9, at 52; Sarah C.M. Roberts et al., Complex Situations: Economic Insecurity, Mental Health, and Substance Use Among Pregnant Women Who Consider—But Do Not Have—Abortions, PLOS One, Jan. 15, 2020, at 1, 12. ↑
- Dhaval Dave et al., Abortion Restrictions and Intimate Partner Violence in the Dobbs Era, J. Health Econ., Dec. 2025, at 1, 1–2. ↑
- See Martin M. Andersen et al., On the Definition of Stigma, 28 J. Eval Clin Prac. (Special Issue) 847, 847–48 (2022) (positing that stigma exists “if and only if there is labelling, negative stereotyping, linguistic separation [the target is commonly referred to by a name], and power asymmetry”). Stigma is distinct from shame: Stigma is a social concept tied to the devaluing of a circumstance or attribute; shame is the internalized negative emotion that can be caused by stigma. See, e.g., Maybell Romero, Shamed, 111 Va. L. Rev. 325, 335 (2025). ↑
- This includes people who use drugs, have HIV, experience mental illness, or live in poverty. See, e.g., Glob. Comm’n on Drug Pol’y, The World Drug Perception Problem 27–29 (2017); Civ. Rts. Div., U.S. Dep’t of Just., Best Practices Guide to Reform HIV‑Specific Criminal Laws to Align with Scientifically Supported Factors 1 (2014) (examining laws motivated by stigma criminalize behaviors that pose no risk of HIV transmission); Ashley B. Batastini et al., Mental Illness in the Eyes of the Law: Examining Perceptions of Stigma Among Judges and Attorneys, 24 Psych. Crime & L. 673, 675–76, 680–83 (2018); Magdalena Sepúlveda Carmona (Special Rapporteur on Extreme Poverty and Human Rights), Addendum to Rep. of the Special Rapporteur on Extreme Poverty and Human Rights, ¶ 30, U.N. Doc. A/HRC/26/28/Add.3 (June 5, 2014) (discussing connection between criminalization and poverty stigma). ↑
- See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962) (“[I]n 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) (citations omitted) (“[T]he 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.”); 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 generally Bridges, supra note 9 (explaining the role of race in prosecutions of pregnant women for opioid use). ↑
- See, e.g., Public Opinion on Abortion, Pew Rsch. Ctr. (Mar. 12, 2026), https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion [https://perma.cc/N6A6-ZNLQ] (“60% [of the American public] say abortion should be legal in all or most cases . . . .”); Mabel Felix et al., What’s Next for State Abortion Ballot Initiatives?, KFF: Women’s Health Pol’y (Dec. 18, 2024), https://www.kff.org/womens-health-policy/whats-next-for-state-abortion-ballot-initiatives [https://perma.cc/K59F-VLRG] (explaining abortion rights are now protected in ten states via constitutional amendments since Dobbs). If Florida’s ballot initiative had required only a simple majority to pass, that number would stand at eleven. Regan McCarthy, Florida’s Amendment to Protect Abortion Rights Fell Short of Passing by Just 3% Votes, NPR (Nov. 9, 2024, at 7:58 AM), https://www.npr.org/2024/11/09/nx-s1-5183891/floridas-amendment-to-protect-abortion-rights-fell-short-of-passing-by-just-3-votes [https://perma.cc/M92W-EGAG]. For those working to ensure access to abortion, it was simultaneously infuriating and edifying to see a candidate for the U.S. presidency and other politicians (finally) openly proclaim support for abortion and to proclaim it not a “special interest” or “wedge” issue but a human right worthy of legal protection. See Colleen Long et al., Watch: Harris Speaks About Abortion Rights at Atlanta Campaign Rally, PBS: NewsHour, https://www.pbs.org/newshour/politics/watch-live-harris-speaks-about-abortion-rights-at-atlanta-campaign-rally [https://perma.cc/LF64-PKHN] (last updated Sep. 20, 2024, at 5:29 PM). ↑
- See, e.g., Rick Rojas & Tariro Mzezwea, After Tense Debate, Louisiana Scraps Plans to Classify Abortion as Homicide, N.Y. Times (May 12, 2022), https://www.nytimes.com/2022/05/12/us/louisiana-abortion-bill.html [https://perma.cc/59YN-DMTX]. ↑
- See, e.g., M. Antonia Biggs et al., Perceived Abortion Stigma and Psychological Well‑Being over Five Years After Receiving or Being Denied Abortion, PLOS One, Jan. 29, 2020, at 1, 2 (“[A]bortion stigma is a product of the larger social, cultural and community contexts in which abortion seeking occurs.”); Alison Norris et al., Abortion Stigma: A Reconceptualization of Constituents, Causes, and Consequences, 21 Women’s Health Issues (Supplement) S49, S51 (2011) (discussing how abortion can be weaponized against pregnant persons as “one of several ‘bad choices’ about sex, contraception, or partner” or lifestyle more generally). ↑
- Kumar et al., supra note 5, at 628; see also Paula Abrams, The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma, 19 Mich. J. Gender & L. 293, 299 (2013) (claiming that social expectations of womanhood can contribute to stigma surrounding abortion). ↑
- Norris et al., supra note 288, at S50 (citing research revealing that “two out of three women having abortions anticipate stigma if others were to learn about it; 58% felt they needed to keep their abortion secret from friends and family”). ↑
- See, e.g., Lori Frohwirth et al., Managing Religion and Morality Within the Abortion Experience: Qualitative Interviews with Women Obtaining Abortions in the U.S., 10 World Med. & Health Pol’y 381, 397 (2018) (noting one sociologist observed that some abortion seekers spoke “to abortion clinic staff about their spiritual discomfort with their abortion decision . . . mainly because abortion was so stigmatized in their own communities that they literally had no other space in which to have these discussions”). ↑
- Alison J. Patev et al., The Interacting Roles of Abortion Stigma and Gender on Attitudes Toward Abortion Legality, 146 Pers & Individ Dif 87, 87 (2019). ↑
- Janet M. Turan & Henna Budhwani, Restrictive Abortion Laws Exacerbate Stigma, Resulting in Harm to Patients and Providers, 111 Am. J. Pub. Health 1, 37–39 (2021); see also Paula Abrams, Abortion Stigma: The Legacy of Casey, 35 Women’s Rts. L. Rep. 299, 301, 320 (2014) (“Laws that restrict access to abortion through extended waiting periods, complex informed consent requirements, and prohibitions on medication abortions send a message of deviancy. Regulations targeting abortion providers and subjecting them to cumbersome and costly restrictions not borne by other medical providers are intended, in part, to obscure the fact that early abortion is both common and safe.” (emphasis added)); Tracy A. Weitz & Katrina Kimport, Commentary, The Discursive Production of Abortion Stigma in the Texas Ultrasound Viewing Law, 30 Berkeley J. Gender L. & Just. 6, 8–10 (2015) (explaining how stigmatizing language “bears on social understandings of [abortion’s] legitimacy”); Rebecca J. Cook, Stigmatized Meanings of Criminal Abortion Law, in Abortion Law in Transnational Perspectives: Cases and Controversies 347, 349 (Rebecca J. Cook et al. eds., 2014) (“The criminal prohibition of abortion contributes to exceptionalizing women seeking abortion as deviant . . . .”). ↑
- See supra note 86. ↑
- See, e.g., Tex. Health & Safety Code Ann. §§ 171.206(b)(1), 208 (2025) (allowing “[a]ny person” to bring a civil action against someone who does or intends to perform, induce, aid, or abet an abortion, but not the person who has an abortion). ↑
- See, e.g., Megan Messerly & Alice Miranda Ollstein, Abortion Bans and Penalties Would Vary Widely by State, POLITICO (May 6, 2022, at 4:30 AM), https://www.politico.com/news/2022/05/06/potential-abortion-bans-and-penalties-by-state-00030572 [https://perma.cc/D6WX-GZUT] (stating (now incorrectly) that “[a]bortion bans set to take effect if Roe v. Wade is overturned could mean lengthy prison sentences for people who have an abortion”). ↑
- See Sara L. Ainsworth & Farah Diaz‑Tello, From the Front Lines of Serving Abortion Seekers’ Legal Needs, A Call to the Legal Profession, Crim. Just., Summer 2023, at 41, 41 (“[T]he threat of criminalization alone has done much of the work of chilling people from getting the care they need. In our work to provide direct legal services to people needing abortion care, we see firsthand that people are afraid to seek abortion care even where it is legal and protected because of the proliferation of misinformation about what is lawful and what has been criminalized. And lawyers, using their ‘issue spotting’ skills honed in law school and beyond, have perpetuated these fears in the media by publicly imagining all the things a prosecutor could possibly do to target a person who seeks an abortion.”). ↑
- See Huss et al., supra note 1, at 40 (“Decades of stigma and legal restrictions on abortion have fueled an aura of illegality that now surrounds self‑managed abortion and seeking abortion in general, turning it into something seen as suspicious or deserving of punitive state action. While the anti‑abortion movement has, at times, publicly claimed that it does not aim to criminalize people who have abortions, its rhetoric and decades‑long effort to . . . ban abortions at ever‑earlier stages of pregnancy belie this claim. This research adds to a body of scholarship that continues to show the pervasive misuse of laws to punish actions or inactions during pregnancy.”). ↑
- Akers v. State, 331 A.3d 853, 873–74 (Md. 2025). ↑
- People v. Morris, 285 N.W.2d 446, 447–48 (Mich. Ct. App. 1979) (alteration in original) (“In fact, one prospective juror at defendant’s trial was peremptorily challenged . . . for having affirmed that she would ‘go into trial with the attitude that [defendant has] already committed a murder’ by virtue of her abortions.”); see also Garcia v. Providence Med. Ctr., 806 P.2d 766, 771 (Wash. Ct. App. 1991) (“[I]t is difficult to imagine how such [abortion] evidence would not have an extremely prejudicial effect on the jury.”). ↑
- Stephenson v. State, 31 So. 3d 847, 850–51 (Fla. Dist. Ct. App. 2010) (applying its rules of evidence, Fla. Stat. §§ 90.402, 403 (2025)); see also Akers, 331 A.3d at 877 (citing Stephenson for this very proposition). ↑
- See, e.g., People v. Thomason, 2019 IL App (5th) 160266‑U, ¶¶ 68–69 (affirming admission of evidence that defendant had attempted to end her pregnancy in prosecution for alleged murder of a three‑month old baby because it was relevant to proving her “specific intent”); 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 prior abortions was irrelevant and prejudicial and rejecting the prosecution’s argument “that a legal and medically supervised abortion in 1995 was relevant to corroborate that Davis [her partner] was not abusive” and that he was “supportive” of the decision to get an abortion). ↑
- See, e.g., Jones v. Rent‑A‑Ctr., Inc., 281 F. Supp. 2d 1277, 1284 (D. Kan. 2003) (holding that evidence of plaintiff’s abortion was inadmissible, even if offered on credibility grounds, explaining that the danger was too great 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 that was offered to question plaintiff’s mental state 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) (describing the fact that a defendant, convicted of first‑degree murder, claimed that his girlfriend’s disclosure of her abortion just before he killed her was “serious provocation”). The case was ultimately decided on procedural grounds, with the court concluding that because “the defense attorney never renewed his request,” he failed to preserve the issue for appeal. Id. at *4. He had the opportunity to do so, the court observed, as the “only firm ruling issued by the trial judge was that Marquez could not litigate these matters in secret” or ex parte. Id. ↑
- 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”). ↑
- See, e.g., Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 885 (8th Cir. 1998) (quoting Nickerson v. G.D. Searle & Co., 900 F.2d 412, 418 (1st Cir. 1990)) (“Informing the jury that . . . [plaintiff] 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.’”); Garcia v. Providence Med. Ctr., 806 P.2d 766, 771 (Wash. Ct. App. 1991) (“declin[ing] to accept” an inference that a person who had a previous abortion will feel the loss of a child less than a person who did not have an abortion, and explaining “it is difficult to imagine how such [prior abortion] evidence would not have an extremely prejudicial effect on the jury”); State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977) (affirming trial court’s refusal to admit, for purposes of impeachment, evidence of a rape survivor’s prior abortion as “irrelevant and manifestly prejudicial”). ↑
- See Huss et al., supra note 1, at 57–58 (“In one case, a woman experienced so much backlash after her case that she changed her name and felt forced to leave her job after customers refused to work with her. In another case, a woman received hateful emails and stopped watching the news because she was called ‘a baby killer.’ This same woman received threats at her home, and property vandalization led her to move. For some, these social harms were exacerbated by the media reporting that surrounded their case.”). ↑
- Bynum v. State, 2018 Ark. App. 201, at 1–2, 546 S.W.3d 533, 536. ↑
- Id. at 14, 546 S.W.3d at 543. ↑
- Id. at 13– 14, 546 S.W.3d at 542–43. Notably, the majority of the cases collected and reviewed by If/When/How in its special report, Huss et al., supra note 1, at 25, were either resolved by a guilty plea, dismissed, or had an unknown outcome. Appellate review is not a panacea for the many harms state violence inflicts well before such review is even possible and long after it ends. See Huss et al., supra note 1, at 52–58 (identifying harms caused by criminalization of abortions even when convictions are ultimately overturned). ↑
- See Julie Chor et al., Factors Shaping Women’s Pre‑Abortion Communication with Members of Their Social Network, 44 J. Cmty. Health 265, 269 (2019) (“While one in four women will have an abortion during her reproductive years, a woman’s decision to have an abortion remains hushed and stigmatized.”). ↑
- Id. ↑
- Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 24; Kebé et al., supra note 259, at 13–14. ↑
- Nat’l Domestic Violence Hotline & If/When/How, supra note 223, at 7 (alteration in original). ↑
- Federal Rule of Evidence 401 and state law analogs deem evidence relevant when “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. As Asees Bhasin has argued, that rule enables judges to exclude evidence of structural discrimination, among other things. Asees Bhasin, Bias and the “Low Bar” of Relevance, 114 Calif. L. Rev. (forthcoming 2026) (manuscript at 1) (on file with authors). ↑
- In Gillum, for example, the state argued that evidence of intimate partner violence was restricted to cases involving self‑defense or to rehabilitate the defendant’s credibility; the court excluded the expert testimony after stating that such evidence would only be admissible in a case involving use of force “in a self‑defense context, or in the defense of another situation.” Merit Brief of Kalina Gillum, supra note 101, at 4. ↑
- See Tyler Fultz, Comment, The Science Has Evolved: Why It Is Time to Update Maryland’s Statute Permitting Expert Testimony on Battered Spouse Syndrome, 83 Md. L. Rev. 1386, 1419–20 (2024) (citing State v. Elzey, 244 A.3d 1068 (Md. 2021), for its holding that intimate partner violence evidence was relevant “to determining whether the defendant had a heightened sensitivity to impending violence”). Such evidence may be particularly important in the cases of adolescents, especially when state laws require finders of fact to determine the “mental, physical, education, and social history” leading to the instant prosecution. E.g., Ark. Code Ann. § 9‑35‑412(g)(9) (2025); see also supra note 172 and accompanying text. ↑
- Defendant’s Response to State’s Motion in Limine Regarding Expert Witness Dr. Karla Fischer, supra note 98, at 2–3. ↑
- Merit Brief of Kalina Gillum, supra note 101, at 22. ↑
- Reply Brief of Kalina Gillum, supra note 129, at 11. ↑
- See supra text accompanying notes 137, 141. That evidence is likely why the judge sentenced Kalina to three years of probation instead of the seven years’ incarceration the State requested. Merit Brief of Kalina Gillum, supra note 101, at 10. ↑
- § 9‑35‑412(g)(9). ↑
- Brief for the Appellant at 42–43, Minor Child v. State, 2024 Ark. App. 393, 701 S.W.3d 751 (on file with authors). ↑
- Id. at 43. ↑
- § 9‑35‑412(g)(8). ↑
- State v. Glover, 479 N.E.2d 901, 903 (Ohio Ct. App. 1984). ↑
- Defendant’s Response to State’s Motion in Limine Regarding Expert Witness Dr. Karla Fischer, supra note 98, at 9. ↑
- Id. at 9–10. ↑
- State v. Gillum, No. 2021 CA 00063, 2022‑Ohio‑2005, 2022 WL 2118008, at ¶¶ 17, 32. ↑
- Ohio Rev. Code Ann. § 2921.12(A)(1) (2025). ↑
- See supra note 139. ↑
- Contrast Ohio Evid. R. 702, with Fed. R. Evid. 702. ↑
- Goodmark, supra note 10, at 96. ↑
- Id. at 50. ↑
- Leigh Goodmark, To Free Them All, Inquest (Oct. 22, 2022), https://inquest.org/to-free-them-all [https://perma.cc/KD6P-BWDE]. ↑
- Goodmark, supra note 10, at 50. ↑
- See supra Part IV. ↑
- Merit Brief of Kalina Gillum, supra note 101, at 2. ↑
- See supra Section II.D. ↑
- Goodmark, supra note 10, at 39. ↑
- Id. at 39–41. ↑
- Id. at 39. ↑
- Minor Child v. State, 2024 Ark. App. 393, at 22, 701 S.W.3d 751, 765. ↑
- Id. at 22–23, 701 S.W.3d at 765–66. ↑
- Brief for the Appellant, supra note 323, at 10. ↑
- Id. at 12. ↑
- Id. at 13. ↑
- Id. at 13–14. ↑
- Minor Child, 2024 Ark. App. at 32, 701 S.W.3d at 771. ↑
- Short of that, we could propose judicial training on the importance of introducing evidence of intimate partner violence in cases involving self‑managed abortion and pregnancy criminalization. But we are skeptical about the efficacy of such training. Leigh Goodmark, When Is a Battered Woman Not a Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75, 125 (2008). ↑