Abortion Ally or Abettor: Accomplice and Conspiracy Liability After Dobbs

The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women's Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes of compassion-providing aid to migrants across international borders. This Article is the first to ground defenses to liability for helping people pursue reproductive and gender freedoms after Dobbs in anti-totalitarian theory and in light of how courts have curbed the criminalization of compassion to migrants. The Article offers a normative and theoretical frame for new questions about the criminalization of assistance after Dobbs, grounded in the tradition of anti-totalitarianism that protected against pervasive government control of movements, bodies, and information. Through the anti-totalitarian lens, the Article frames clusters of defenses grounded in freedom of speech, the right of interstate travel, and canons of statutory construction. Although the primary targets thus far have been in the abortion context, which is the Article's focus, the Article's insights also have wider impact as a growing number of states criminalize the provision of gender-affirming care to minors, raising important questions about liability for aiding the pursuit of gender-affirming as well as reproductive freedoms.