Abortion Regulation and Chilling From Extremists

Guha Krishnamurthi

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, a number of states have passed abortion bans. In those states, some pregnant women have been denied necessary medical care, with tragic results. Nominally, their care should have not been denied. That is, the states’ abortion bans had explicit exceptions allowing necessary care to preserve the life and health of the expectant mother. The question arises: Why were they denied that necessary care?

In this short Essay, I analyze how modern abortion bans chill the provision of reproductive care—even care that the statutes explicitly allow. In general, we understand chilling to be a consequence of statutory interpretation and application: Does the statute admit an interpretation that would cover, and thus chill, some beneficial conduct? Here, I contend there is an additional chilling factor: the presence of anti-abortion extremists. Regulating abortion involves nuanced questions and this results in substantial underspecification of the law and difficulties in its application. This, in turn, gives legal officials significant discretion. But because anti-abortion extremists occupy positions of power, individuals who fear legal retribution will be chilled from engaging in abortion healthcare even if normal considerations of statutory interpretation and application permit the provision of this care.

Understanding the presence and role of extremists has important lessons for chilling: When there are extremists present, regulation will have higher chilling costs. With respect to abortion, this has perilous consequences—many pregnant people will suffer grievous risks to their health, and some will die as a result, even where restrictive laws purport to account for these risks. Further, surprisingly, when the chilling calculus involves such high costs, targeting physicians instead of pregnant persons in fact can lead to worse results for pregnant persons.