Psychology of the
4th Amendment &
Pregnancy Loss

Social/Law-Psych Brownbag

Emma Marshall, JD, MA

University of Nebraska-Lincoln

November 16, 2023

Case Study 🌽 Teen ended pregnancy at >30 weeks

Lets start close to home with a recent case that gained national attention involving a teenager who used abortion pills to end her own pregnancy here in Nebraska.

With a show of hands, how many of you have heard something about this case?

Case Study 🌽 Criminalization of SMA?

1. At least 61 criminal cases from 2000-2020

2. Used criminal laws intended for other purposes

3. 25% dropped or dismissed but collateral consequences remained

• Lost custody of other children
• Immigration & deportation
• Fines & fees, etc. Pregnant people were already being criminalized for the outcome of their own pregnancies before Dobbs.

Nearly 1,300 people faced criminalization for pregnancy outcomes, including self-managed abortions, between 2006 and 2020. That’s triple the amount between 1973, when Roe v. Wade was decided, and 2005 (a period more than twice as long), according to National Advocates for Pregnant Women.

https://www.ifwhenhow.org/abortion-criminalization-new-research/ Investigations occurred in 26 states despite the fact that only seven states historically criminalized self-managed abortion; today that number is just three (Nevada, South Carolina, and Oklahoma).

This means that overzealous police and prosecutors have circumvented the law’s parameters in many states, subtly using criminal laws not meant to apply to allegations of self-managed abortion. Strikingly, regardless of whether these became the final charges, law enforcement considered applying murder or homicide charges in 43% of all 61 cases. These considerations happened twice as frequently in cases involving people of color compared to non-Hispanic white individuals. Racism and stigma infiltrated these investigations and further entrenched them in a crushing criminal process.

Ultimately, the majority of cases proceeded and most often concluded in a guilty plea – unsurprising given how most cases are resolved in the criminal system. But almost a quarter of the cases were dropped or dismissed by either the prosecutor or court. This should motivate advocates and trained criminal defenders to force a review of the charges so clients aren’t wrongly convicted.

For anyone entangled in the criminal process, the harm lasts. Conviction or not, several people lost custody of their children temporarily or permanently. In one case, while local authorities declined to prosecute the woman after acknowledging the self-managed abortion was not unlawful, they still turned her over to immigration authorities for deportation.

Criminalization of Abortion Post-Dobbs

Source: NYT Sept 2023

1. Near-total bans (13 states)

2. Restrict abortion pills (15 states)

3. Do not use medical language to define terms

Self-Managed Abortion (SMA)

Abortion pill now used in 54% of US abortions

https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions

https://www.plancpills.org/

…or involuntary miscarriage?

SMA results in same outcome, physical symptoms and behaviors

Which pregnancy losses raise suspicion?

Most investigations triggered by someone reporting loss to law enforcement

31-50% of all pregnancies end unexpectedly

Miscarriages are typically unpreventable, occur early in pregnancy and cannot be attributed to single (or any) cause

1. Rates higher for racial & ethnic groups already overcriminalized
2. Range of laws used against abortion-related activity
3. Public underestimates occurrences

Both sides of abortion debate promote single path narrative of pregnancy - idea that pregnancy ends in live birth unless interrupted by abortion.

For pro-abortion advocates, pregnancy loss and fetal personhood thought to undermine ‘choice’ narrative. “clump of cells” vs. murder

For anti-abortion forces, pregnancy loss narratives blur the line between abortion and lawful behavior.

Which pregnancy losses raise suspicion?

Abortions by pill are indistinguishable from involuntary pregnancy loss (miscarriages)

Only distinction is intent

Various legal actors must infer the pregnant person’s subjective mental state (“mens rea”) to decide whether their actions make them guilty of a crime.

Pregnancy Loss as Moral Harm

1. Outcome & Hindsight Effects
2. Inferring intentions
3. Punishment, Culpability & Blameworthiness

To determine whether an agent’s behavior is wrong, punishable, and blameworthy, people mainly rely on two key factors: intention and outcome.

In virtue of the higher perceived risk in the unlucky cases (where the harm does occur), people judge the agents as more negligent and (sometimes) more reckless. Consequently (and reasonably), they deem the agent who is viewed as acting more negligently as more blameworthy.

Once subjective probability and negligence are accounted for as mediators, however, no significant direct effects of outcome on blame remain.

Case Study 🌽 Teen ended pregnancy at >30 weeks

Fourth Amendment

Fourth Amendment without Roe?

Understandably, focus of abortion debate and scholarship is on the implications of limiting access to legal abortion care.

This rapid expansion of the scope of criminal liability for abortion raises important questions about how other Constitutional privacy protections, including the Fourth Amendment right to be free from unreasonable government searches and seizures, will protect people who experience pregnancy loss in the wake of Dobbs.

For example, which facts and circumstances can be used to draw inferences about the cause of a person’s pregnancy loss? How do legal actors—including police, judges, prosecutors, and even child welfare workers—make these inferences and approach decisions about which pregnancy losses to investigate as suspected criminal activity? And what factors determine how various officials interpret the meaning of standards like reasonable suspicion or probable cause in this context?

The current proposal will explore these issues and discuss the nature of Fourth Amendment restrictions on criminal investigations of abortion-related activity. It will also discuss psychological research on hindsight bias, social perception, and legal decision-making that could be used to help guide courts in their approach to these cases.

Individualized Suspicion Requirement

1. Non-technical, common sense approach
2. Based on totality of circumstances
3. Can use otherwise innocent facts

use Hindsight or Outcome Knowledge

Evaluating Individualized Suspicion

Evaluating Individualized Suspicion

Evaluating Individualized Suspicion in Hindsight

use Hindsight or Outcome Knowledge

Questions?