The Law Review Forum

Fourth Amendment Rights as Abortion Rights

Elizabeth E. Joh

October 24, 2022

Elizabeth E. Joh is a Professor of Law at the University of California, Davis, School of Law.

After conducting a traffic stop for speeding, a police officer notices a pamphlet for an out-of-state abortion clinic. The state legislature has recently passed a law criminalizing the crossing of state lines to seek an abortion. Originally intending only to warn the nervous driver for the traffic violation, the officer takes a different tactic: “Can I ask you a question?”

Now that abortion is no longer a fundamental constitutional right, receiving or performing an abortion can be a crime. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court not only upheld the challenged 15-week state ban on abortion, but also overturned its prior decisions, Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), both of which had protected a legal right to abortion—at least prior to fetal viability. As a result, states are free to criminalize abortion and have no obligation to recognize exceptions to save a woman’s life or in cases of rape or incest. States can punish abortion providers, abortion patients, and those who help or assist women seeking abortions.

Dobbs, far from settling matters, has generated new and difficult legal questions. Some state abortion bans are insufficiently clear and may reach not only abortion, but also the treatment of life-threatening ectopic pregnancies, the use of contraceptive IUDs, and perhaps even the use of IVF infertility techniques. Some state legislators have raised the possibility of prohibiting pregnant women from leaving the state to obtain an abortion in a state where it is legal. (Such laws would certainly prompt constitutional challenges.) In Michigan, Governor Gretchen Whitmer has already signed an executive order refusing the extradition of women criminally charged for seeking reproductive care to or from the state. And because Dobbs was decided in a world where surveillance technologies are everywhere, there are few settled answers on how enforcing criminal abortion bans will involve digital search and seizure.

But the post-Roe world raises even more basic questions about the Fourth Amendment, apart from important but distinct issues relating to online searches, location data, or cellphone app information. When abortion is a crime, it can be treated like any other crime from the perspective of the Fourth Amendment. This context matters because the crime of abortion will meet an extensive body of case law on search and seizure, a great deal of which has been developed in investigating drug crimes enforced against communities of color.

What does it mean when Fourth Amendment rights are abortion rights? After Dobbs, one answer is that a new class of criminal suspects will discover just how weak search and seizure protections are. This Essay, focusing on the investigation of women seeking illegal abortions, argues that the criminalization of abortion highlights the inadequacies in Fourth Amendment doctrine with renewed urgency. Part I discusses what the criminalization of abortion will entail. Part II identifies some of the ways current Fourth Amendment law provides few protections for those subjected to abortion prosecutions. Part III considers the future of post-Roe Fourth Amendment rights.

I. The Crime of Abortion

After Dobbs, abortion is no longer a constitutionally protected fundamental right. Thus, state regulation of abortion, including criminalization, is entitled to a “strong presumption of validity” under rational basis review. Severe restrictions, bans, and criminalization would presumably be justified by a state’s “interest in protecting fetal life.” Some state abortion bans, like Wisconsin’s 1849 law, were considered unenforceable after Roe, but are enforceable once more. Other states had passed “trigger laws,” abortion bans that took effect shortly after the Supreme Court overturned Roe. Most of these bans focus on targeting abortion providers, not abortion patients. After Dobbs, however, states can use blunter tools: laws that criminalize obtaining an abortion, performing a self-managed abortion, or even attempting to do either. Women suspected of intentionally causing their own miscarriages or stillbirths have already faced harsh enforcement tactics. We are thus likely also to see more aggressive prosecutorial interpretations of existing crimes like feticide, child neglect, and homicide targeted at abortion patients.

Prosecutions begin with investigations. In states where abortion patients themselves can be criminal suspects, investigators will need to gather evidence establishing a patient’s intention to procure an abortion and the steps the pregnant woman has taken in furtherance of it. Some of this evidence may be relatively novel in Fourth Amendment terms, such as online searches for medication abortions, location data about abortion providers purchased from data brokers, or other trackable data gathered from location surveillance mechanisms on digital devices. But the Fourth Amendment also permits the collection of more conventional evidence with few limits.

II. The Fourth Amendment of Abortion

The Fourth Amendment’s prohibition on unreasonable searches and seizures applies to all ordinary criminal investigations. Those who are suspected of obtaining a criminalized abortion will face difficulties in challenging police tactics because the Supreme Court’s decisions impose relatively few restraints on some of the most important and basic means by which police gather evidence.

These decisions grant the police tremendous discretion in the early stages of an investigation. Arrests and full-blown searches of homes, cars, and people require the Fourth Amendment standard of “probable cause,” but the police can begin investigations with less suspicion, or none. The police can ask people for consent—their voluntary cooperation—to search their belongings or participate in questioning without any legal justification. Brief but nonconsensual investigative stops of people require only the modest legal justification of “reasonable suspicion.” And any potential evidence considered “knowingly expose[d]” to the public receives no Fourth Amendment protection at all.

Three doctrines especially relevant to the abortion context relate to informants, Terry stops, and pretextual policing. First, consider snitching: receiving incriminating information from someone you know and telling the police. Although snitching often refers to providing information to the police in exchange for leniency or favorable treatment, it can also refer to voluntary sharing of information as well. The Fourth Amendment, as the Supreme Court has stated, does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” As many criminal defendants in drug enforcement cases have found out, when they share incriminating information with a third-party, including friends or family, they have assumed the risk that this incriminating information may have been, or will be, relayed to law enforcement officials.

In the highly politicized context of abortion, such confidence in friends and associates may be especially misplaced. Privately received information about an illegal abortion can quickly prompt an investigation. A screenshot from a teenager’s group chat about a medication abortion can lead to a parent or a principal reporting that information to the police. A candid conversation with an emergency room doctor can launch an investigation. In the case of domestic violence, an abusive partner may use the threat of turning over an incriminating receipt or a text as a means of intimidation. The Supreme Court has repeatedly affirmed that “when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities.” No one investigated for having or attempting to have an illegal abortion can claim Fourth Amendment protection about this once seemingly private information.

Second, consider the police development of suspicion itself. Investigative detentions by the police qualify as Fourth Amendment seizures requiring individualized suspicion. Under Terry v. Ohio (1968), police must support even these brief stops by satisfying the standard of “reasonable suspicion.” A quick perusal of drug enforcement cases shows how easy it is for the police to satisfy the required “reasonable suspicion” for Terry stops and frisks. While a “hunch” is never sufficient justification, the kinds of facts that support the “totality of circumstances” necessary for reasonable suspicion in the drug enforcement context are notoriously vague. Among the factors police have been allowed to rely upon to justify an investigative stop for illegal drugs include: “unusual nervousness,” “improbable travel plans,” and traveling to or from an area known for criminal activity. Tipsters, even anonymous ones, can also play a part in how police develop reasonable suspicion as well.

If abortion is a crime and patients are suspects, then they too can be subjected to investigative detentions. Terry stops are not limited to particular substantive crimes: indeed, courts have not required that the crime police investigate in a Terry stop be a “felony or serious offense.” This raises the question: What facts would suggest to a police officer that a woman had recently obtained or was about to obtain an illegal abortion? Because the Supreme Court has declined to reduce reasonable suspicion to a “neat set of legal rules,” and because that determination “need not rule out the possibility of innocent conduct,” a Terry stop to investigate criminal abortion is both legally permitted and factually possible. In other contexts, we know that the police can and do aggressively define their enforcement authority. When Kansas Highway patrol officers stopped Peter Vasquez as he drove on the interstate in 2011, one of their primary justifications was Vasquez’s state citizenship—that he was a citizen of Colorado, a state that had legalized medical marijuana, but was driving to a state where it was illegal (Kansas). The Tenth Circuit Court of Appeals ultimately disagreed with their assessment and concluded that it was “time to abandon the pretense that state citizenship is a permissible basis upon which to justify” such detentions. That factor, when considered with others that were “hardly suspicious,” could not form the basis of reasonable suspicion. But the same calculus may not apply to pregnant women who cross state lines because their home states have criminalized abortion. Police who encounter them at state borders may point to factors like out-of-state abortion clinic literature, implausible travel plans, and nervous behavior as reasons to investigate further, and courts may agree with them.

Other scenarios are also imaginable. As some states consider whether to punish women who leave their home states to obtain abortions in states where it is legal, interstate travel for abortion may become a subject of policing itself. A politically opportunistic governor could decide to impose a state border checkpoint near a known out-of-state abortion services provider, in the same way that Florida and Texas imposed police-enforced state border COVID checkpoints at the height of the pandemic in 2020. Lawful checkpoints may be imposed by the state under the “special needs” exception to the Fourth Amendment, which permits the suspension of the warrant and individualized suspicion requirements so long as the state’s needs are beyond “the normal need for law enforcement.” Whether or not a claimed interest in fetal life would qualify under such a framework is an open question.

Third, consider the enormous amount of investigative discretion granted by the Supreme Court to ordinary policing efforts. The Fourth Amendment places few restraints on whom, whether, and when the police decide to exercise their enforcement decisions. In “consensual” encounters, the police do not violate the Fourth Amendment by asking a person if they are “willing to answer some questions,” or by “putting questions [to them if they] are willing to listen.” The police may conduct arrests for even very minor crimes with no possibility of jail time upon conviction. Lawful custodial arrests for any crime grant police the automatic authority to search the arrestee and the area around the arrestee as an incident of the arrest. The police can stop cars for purported traffic enforcement reasons even if they are really acting on hunches about other crimes. Claims of pretext have no purchase on these actions.

Just as drug arrests often arise from stops for speeding or failing to signal, so too could abortion investigations arise from such seemingly unrelated beginnings. Investigations could arise out of police encounters that initially have nothing to do with a suspected criminal abortion. Some of the most important Fourth Amendment decisions begin with a minor traffic violation and end in an arrest for illegal drugs. A traffic stop for a broken brake light may turn into questioning about an attempted illegal abortion, which may lead to more intrusive interrogation and sustained detention.

In the drug enforcement context, police discretion has had racially disproportionate impacts. The Fourth Amendment places no constraints on the ability of the police to target non-white drivers, pedestrians, and travelers far more than their white counterparts for enforcement. This considerable police discretion exists despite decades of evidence showing that police enforce the law disproportionately against low-income, non-white communities. We should not be surprised when police enforcement decisions about investigating the crime of abortion focus on poor women of color more so than on anyone else, especially since most abortion patients are young, low-income women of color. Wealthy abortion patients will not be traveling the interstate in cars with broken headlights and expired registrations. They will not spend the majority of time in neighborhoods where there is already a heavy police presence. They will not live their lives in heavily surveilled public spaces. Fourth Amendment case law permits these disparities, and they will permit unequal abortion enforcement as well.

III. The Post-Roe Fourth Amendment

After Dobbs, we should expect to see the development of Fourth Amendment cases where defendants are abortion providers, patients, and those who aid abortion patients. Some of these cases will focus on novel forms of evidence collection, especially digital information about medical histories and personal movements. But much more basic policing techniques, long sanctioned by the Supreme Court, will also provide opportunities for the police to target women suspected of having illegal abortions.

Courts are unlikely to treat Fourth Amendment claims here any differently than they do in other cases. States and local governments cannot alter the Supreme Court’s definition of “probable cause” or “reasonable suspicion.” What local governments can do—even in states where abortion is illegal—is focus on accountability measures that restrict policing enforcement priorities. Even proposals such as limiting traffic enforcement by police are ways in which local communities can limit unnecessary interactions between police and citizens. Communities can demand that their law enforcement agencies not create unnecessary records on potentially criminal abortions, even if those same agencies vow not to enforce state criminal abortion laws on a voluntary basis.

Dobbs allows states to turn those who had formerly been healthcare recipients into criminal suspects. This means they can be subjected to policing decisions legitimated by decades of Fourth Amendment decisions. Women and girls seeking abortions deemed illegal in their home states encounter a stressful decision about their health and autonomy. The Fourth Amendment will provide little protection from any policing decisions they must also face.