INTRODUCTION

In anticipation of, and immediately following, the Supreme Court’s overturn of Roe v. Wade, several states rushed to enact criminal abortion laws. Three years later, some states are doubling down on criminal approaches. The most extreme bills, pushed by self-described “abortion abolitionists,” would authorize murder prosecutions of people who have abortions. These bills reflect the most extreme product of the assumption underlying all criminal abortion laws—that protection of “life” requires state control of pregnant people through coercive means, including the use of criminal law. This essay challenges the idea that the rights of pregnant people and protection of prenatal life are inherently in conflict, describes measures that states can take to protect prenatal life that also respect the dignity, heath and rights of people who are, or can become, pregnant, and considers obstacles that have prevented U.S. law makers from taking this approach.

Based on their experience with criminal abortion laws, the high courts of Mexico and Colombia—countries that, unlike the United States, have a constitutional commitment to protecting prenatal life—struck down criminal laws because they simply don’t work and impose real harm. Three years after Dobbs v. Jackson Women’s Health Organization, we are seeing similar outcomes in the United States. Criminal abortion laws have not decreased the overall number of abortions in the United States and have caused significant harm. Not only do these laws violate the dignity and rights of pregnant people, they have also caused their deaths and undermined their healthcare. Given these realities, the Mexican and Colombian courts urged their legislatures to fulfill the state’s obligation to protect prenatal life while simultaneously respecting the rights of women and people who can become pregnant by adopting measures to provide contraception and family planning information, guarantee access to sexual and reproductive health services, including abortion, and support pregnant people and families so that they can afford to have children.

The policies described by the Mexican and Colombian high courts reflect reproductive justice and human rights principles emphasizing not only that people have the right to control their fertility and terminate unwanted pregnancies but that they also have a right to have and parent children in safe and healthy environments and the state should facilitate their ability to enjoy these rights.

The approach adopted by the Mexican and Colombian courts could create common ground for reproductive justice activists and opponents in the United States. Despite abortion abolitionists’ extreme claims that prenatal life at all stages of development should be recognized as legal persons, most people who oppose abortion do not support granting zygotes, embryos and fetuses full legal rights and express concern for pregnant people and families. On the flip side, reproductive justice advocates opposing abortion bans emphasize that the state should ensure that people have access to sexual and reproductive services and prenatal care and that families have the support they need to raise their children.

This article describes Mexican and Colombian decisions and then posits that abandoning carceral approaches will require three major shifts in U.S. discourse: (1) dismantling gender stereotypes and recognizing women as full rights holders; (2) disentangling protection for prenatal life from Prenatal Personhood claims; and (3) building support for government programs that support the health, welfare, and autonomous choices of women and families.