Fourth Amendment Decision-Making and Pregnancy Loss

Comprehensive Exam Proposal

Emma Marshall, JD, MA

September 20, 2023

Criminalization of Pregnancy Loss After Dobbs

Source: NYT Sept 2023

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/

Involuntary Miscarriages

SMA results in same outcome, physical symptoms and behaviors

Which pregnancy losses raise suspicion?

Most investigations triggered by someone reporting loss to law enforcement

End of Pregnancy 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.

Pregnancy Loss is Common

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

Risks of criminalization

1. Rates of miscarriage higher for racial and ethnic groups already overcriminalized in other contexts
2. Range of laws used against abortion-related activity
3. Public underestimates occurrence

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.

Example 1 🌽 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

Timeline & Plan for Comprehensive Exam

1. Complete comprehensive literature review
2. Grant proposal to fund dissertation work (Law and Science Dissertation Grant (due May 15th, 2024, max $20,000))
3. My goal is to defend my comprehensive exams during the spring of 2024.

My comprehensive literature review will consist of three main sections. First, I will examine the legal principles and case law involving inadmissible outcome information that might affect decisions during criminal investigations and prosecutions of pregnancy-based crimes and the role that outcome information plays in decisions made by legal actors in this context.

Next, I will explore the psychological research that will serve as the theoretical basis for my dissertation. This will include a discussion of the sense-making model of hindsight bias and the closely related literature on the outcome bias.

I will also discuss research exploring whether other social-cognitive processes, such as attributions of blame and responsibility, and moral luck, play a role in these decisions. Finally, I will outline the series of studies that I plan to conduct for my dissertation.

Questions?