On September 20, 2021, National Advocates for Pregnant Women (NAPW), with co-counsel David Goldberg, partner at Donahue, Goldberg, and Littleton, filed an amicus curiae (friend of the court) brief in Dobbs v. Jackson Women’s Health Organization in support of Respondents’ challenge to Mississippi’s law banning abortion after 15 weeks of pregnancy. The brief was filed on behalf of NAPW and 12 organizations committed to ensuring the health and rights of all pregnant people, including those with wanted pregnancies, those who continue their pregnancies and give birth, and those who experience pregnancy losses.
In Dobbs, the U.S. Supreme Court is ostensibly considering a Mississippi law that would ban all abortions after 15 weeks. The State of Mississippi, however, is using this case to ask the U.S.Supreme Court to overturn Roe v. Wade and, with it, 50 years of legal precedent fundamental to the rights of all women and all people with the capacity for pregnancy.
NAPW’s brief highlights aspects of Roe and Planned Parenthood v. Casey that Mississippi ignored: not only did those cases recognize and protect the right to have an abortion, they also established that women, even when pregnant and during all stages of pregnancy, are full and equal persons under the Constitution. This protection ensures that States cannot deny pregnant people their own liberty and autonomy based on a State’s interest in potential life.
Despite this, as NAPW’s brief explains, the assertion of States’ interest in protecting “unborn lives” has been used to justify coercive state actions depriving women, most of whom are already mothers, of virtually every constitutional right, including their own right to life. The brief brings to the Court’s attention over 1,600 cases where police, prosecutors, and judges misused their power to criminalize pregnancy and all of its possible outcomes, including pregnancy loss, birth, and abortion.
These cases include pregnant women who have been arrested for falling down stairs, drinking alcohol, giving birth at home, being in a “dangerous” location, having HIV, experiencing a drug dependency problem, or attempting suicide. Of course, none of these actions are illegal, yet because the individual was pregnant, criminal or civil charges were brought.
When challenged, the vast majority of such prosecutions and state interventions have failed, in part, because Roe and Casey established a rule of law that prohibit treating pregnant women as a special, lesser class of persons. And, as NAPW’s brief argues, these 1,600 cases — of which approximately 20 involved allegations of illegal abortions — are a harbinger of what is to come. If the Court overturns Roe, we know that police, prosecutors, and judges will have unfettered power to criminalize pregnancy and all pregnancy outcomes.
“Roe v. Wade benefits all people with the capacity for pregnancy, not only those seeking to end a pregnancy,” explains Lynn M. Paltrow, Founder and Executive Director, National Advocates for Pregnant Women. “If Roe and Casey are overturned, however, it is clear that every one of the 6 million people who get pregnant each year—including the millions with wanted pregnancies—will be vulnerable to surveillance, arrest, prosecution or other punitive state action at the discretion of a local prosecutor, police officer, child protection worker, or doctor. And, as we know, those punitive and counterproductive actions will occur disproportionately to Black, Brown, Indigenous, and low-income women.”
List of Amici:
• National Advocates for Pregnant Women
• Academy of Perinatal Harm Reduction
• Birth Rights Bar Association
• Black Women’s Blueprint
• CHOICES Memphis
• Elephant Circle
• Every Mother Counts
• Healthy and Free Tennessee
• Human Rights in Childbirth
• March for Moms
• National Perinatal Association
• North American Society for Psychosocial Obstetrics & Gynecology (NASPOG)
• PUSH for Empowered Pregnancy
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