Abortion’s New Criminalization—A History-and-Tradition Right to Health-Care Access After Dobbs

*Reva Siegel is Nicholas deB. Katzenbach Professor of Law at Yale Law School. Mary Ziegler is Martin Luther King Jr. Professor of Law at UC Davis School of Law. This draft benefitted from dialogue with readers including Kathy Abrams, Jack Balkin, Evan Bernick, Nancy Cott, Dov Fox, Cary Franklin, Sherif Girgis, Linda Greenhouse, Nicole Huberfeld, Robert Post, Laura Portuondo, Rachel Rebouché, Stephen Sachs, Jed Shugerman, Lawrence Solum, Aaron Tang, and Garrett West. We especially thank Jessie Hill for her suggestion to consider the histories of Prohibition and vaccination. We thank Lawrence B. Glickman for sharing David Lawrence’s article on the Fourteenth Amendment’s legitimacy. For excellent research assistance, we are grateful to Hannah Berkman, Gila Glattstein, Lily Jacobs, Caitlyn Jordan, Katie Kroft, Tamara Shamir, Marlen Renderos, and Indu Pandey.Show More

Since Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before.

Are there constitutional limits on abortion bans that restrict access to health- or life-preserving care? In Dobbs, the Court granted certiorari “to resolve the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’” This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests the unconstitutionality of bans that break with past practice in criminalizing terminations that are part of urgently needed health care under federal and state law.

We show that the nation has long had a tradition of exempting critical forms of health care from criminalization, that this tradition extended to abortion law, and that it was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. We show that this tradition extended across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically termed a right. We show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend our reading of Dobbs and substantive-due-process law against an originalist reading of Dobbs, advanced by Professor Stephen Sachs, asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s originalist reading of the Fourteenth Amendment conflicts with important aspects of Glucksberg and Dobbs and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. By no means are history and tradition the sole ground on which Americans can assert the rights in question, yet they are a critical ground—a reminder that criminalizing urgently needed health care is not what Americans traditionally do, even to pregnant women.

Introduction

In Dobbs v. Jackson Women’s Health Organization, both the majority and Chief Justice John Roberts’s concurrence explained that the Court was resolving “the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’”¹ 1.142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented).Show MoreThe Court’s decision allowing states to criminalize what the Court termed “elective abortions” on grounds of history and tradition gives rise to a new question: Under Dobbs, might abortion bans that deny access to urgently needed medical care in cases of threats to life or health violate liberty guarantees of federal or state constitutions?

This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests that bans that break with past practice in criminalizing urgently needed health care may be unconstitutional under federal and state law. We uncover a significant body of evidence showing that the nation has long had a tradition of exempting critical forms of health care from criminalization that extended to abortion law and was expressed in the many abortion laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act.² 2.See infra Sections II.A–B.Show MoreWe identify entrenched customary understandings embodied in statutory exceptions, in medical judgments, and in judicial interpretations that often afforded doctors discretion to protect health and life in accordance with professional norms and good faith.³ 3.See infra Sections II.A–B.Show MoreWe demonstrate that these thick customary understandings involved much more than legislative inaction⁴ 4.See infra Sections II.A–B.Show More: they were self-conscious constraints on state action that were reiterated in different bodies of law across institutions and over time.⁵ 5.See infra Sections II.A–B.Show MoreThese customary norms allowed judges, prosecutors, and doctors to coordinate before our modern practices of rights-claiming were established,⁶ 6.See infra Sections II.A–B.Show Morewhen not all constraints on legislative power came in the form of judicial enforcement of fundamental rights,⁷ 7.Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”).Show Moreand when rights were severely circumscribed by forms of status our Constitution no longer recognizes.⁸ 8.See infra notes 369, 373–75 and accompanying text.Show More

As we show, far from returning to the past, the criminalization regime emerging after Dobbs is in critical ways far more punitive.⁹ 9.See infra Section I.A.Show MoreCriminalization has always disproportionately burdened the poor and marginalized, even as these burdens change shape.¹⁰ 10.See infra notes 68–71 and accompanying text.Show MoreToday, early diagnosis of pregnancy, telehealth, and safe and effective abortion medication mitigate the impact of criminalization on some, at least in the early weeks of pregnancy,¹¹ 11.See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND].Show Morewhile harsh criminal sanctions threaten access to health care for those carrying pregnancies to term,¹² 12.See infra Section I.A.Show Moreparticularly for women of color, who face a higher risk of maternal mortality and morbidity because of health harms related to racism, poverty, and a lack of access to quality (or indeed any) health care.¹³ 13.See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying textShow More

In fact, the criminal law regime emerging after Dobbs prevents doctors from addressing urgent health needs of pregnant patients in ways that bans before Roe v. Wade did not.¹⁴ 14.See infra notes 60–63 and accompanying text.Show MoreThese harms are concentrated in the South and Midwest,¹⁵ 15.Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM).Show Morebut may not remain there. Federal law could nationalize them, and conscience claims could bring them inside abortion-rights-protecting states.¹⁶ 16.On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34.Show MoreStates may continue to enforce laws with life exceptions far harsher than those in place before Roe.¹⁷ 17.See infra Section III.C.Show MoreAnd the Trump Administration has recently dropped the Biden Administration’s lawsuit arguing that the Emergency Medical Treatment and Labor Act (“EMTALA”) guarantees access to abortion in certain medical emergencies.¹⁸ 18.Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”).Show MoreThe Trump Administration (or litigants) may further seek to break from longstanding practice and judicial precedent by enforcing the Comstock Act as a de facto no-exceptions national abortion ban.¹⁹ 19.See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ].Show MoreFacing such threats, pregnant patients and their lawyers are beginning to look to the federal and state constitutions to assert a right to access care in cases of threats to life or health.²⁰ 20.See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution).Show More

We demonstrate that under Dobbs and Washington v. Glucksberg,²¹ 21.521 U.S. 702 (1997).Show Morethe tradition we identify can guide interpretation of the Constitution’s liberty guarantees to protect access to urgently needed health care against criminalization, even if access was not historically understood as a right.²² 22.See infra Sections III.A–B.Show MoreWe show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs, and have begun to employ it under their own state constitutions to protect urgently needed health care from criminalization.²³ 23.See infra Section III.C.Show More

Finally, we defend our history-and-tradition analysis under Dobbs and Glucksberg against an originalist account of the cases presented by Professor Stephen Sachs in response to Dobbs’s originalist critics.²⁴ 24.Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E].Show MoreSachs offers a reading of Dobbs and Glucksberg that he contends is compatible with original-law originalism, his positivist account of what our constitutional law requires. We evaluate his positivist account and find it to turn on unstated normative criteria. Sachs’s reading, we conclude, conflicts with important aspects of Dobbs and Glucksberg and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.²⁵ 25.See infra Section III.D.Show More

Of course, the history-and-tradition framework is not the only or best way to analyze these questions as a matter of state or federal law. A challenge to abortion bans written or enforced in such a way as to deny pregnant persons access to urgently needed medical care could appeal to liberty interests in bodily autonomy and family decision-making—understanding these traditionally protected forms of freedom at a higher level of generality—as Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey did.²⁶ 26.See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”).Show MoreAmbiguously worded exceptions in abortion bans that chill or obstruct access to urgently needed medical care can be challenged on grounds of vagueness.²⁷ 27.See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance).Show MoreOr state action of this kind can be challenged as denying the right to life.²⁸ 28.See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century).Show MoreClaims might be based on the Privileges and Immunities Clause;²⁹ 29.See infra notes 382–83 and accompanying text.Show Moreasserted as challenges to involuntary servitude under the Thirteenth Amendment;³⁰ 30.See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”).Show Moreor advanced as a challenge to stereotyping under equal protection.³¹ 31.See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution).Show More

Even so, there are critically important goods served in analyzing state action obstructing urgently needed reproductive health care through a history-and-tradition lens. We learn that at a time when American women were not recognized as having many rights, doctors, lawmakers, prosecutors, and judges coordinated to limit abortion bans and permit physicians to protect the lives and health of pregnant patients. This widespread and enduring customary practice shows that access to urgently needed health care, including abortion, is deeply rooted in our nation’s history and traditions, even on Dobbs’s own terms.

1.  142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented). ↑
2.  See infra Sections II.A–B. ↑
3.  See infra Sections II.A–B. ↑
4.  See infra Sections II.A–B. ↑
5.  See infra Sections II.A–B. ↑
6.  See infra Sections II.A–B. ↑
7.  Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”). ↑
8.  See infra notes 369, 373–75 and accompanying text. ↑
9.  See infra Section I.A. ↑
10.  See infra notes 68–71 and accompanying text. ↑
11.  See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND]. ↑
12.  See infra Section I.A. ↑
13.  See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying text. ↑
14.  See infra notes 60–63 and accompanying text. ↑
15.  Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM). ↑
16.  On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34. ↑
17.  See infra Section III.C. ↑
18.  Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”). ↑
19.  See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ]. ↑
20.  See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution). ↑
21.  521 U.S. 702 (1997). ↑
22.  See infra Sections III.A–B. ↑
23.  See infra Section III.C. ↑
24.  Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E]. ↑
25.  See infra Section III.D. ↑
26.  See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”). ↑
27.  See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance). ↑
28.  See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century). ↑
29.  See infra notes 382–83 and accompanying text. ↑
30.  See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”). ↑

31.  See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution). ↑