In a series of letters sent over the weekend, the marshal of the U.S. Supreme Court called on officials in Maryland and Virginia to “enforce” state and local laws that, she wrote, “prohibit picketing outside of the homes of Supreme Court Justices.”

“For weeks on end, large groups of protesters chanting slogans, using bullhorns, and banging drums have picketed Justices’ homes in Virginia,” Marshal Gail Curley wrote to Virginia Gov. Glenn Youngkin. “This is exactly the kind of conduct that Virginia law prohibits.”

Curley sent similar letters to Maryland Gov. Larry Hogan, along with several Maryland and Virginia county officials.

Curley’s requests come after weeks of protests and picketing outside the homes of the court’s conservative justices in the Maryland and Virginia suburbs of Washington, D.C. The protests began in May after a draft leaked of the justices’ eventual decision to overturn Roe v. Wade.

In June, police arrested an armed man near the home of Justice Brett Kavanaugh after the man called 911 to confess that he was suicidal and had traveled to Maryland with the intent of harming both himself and Kavanaugh. He has since pleaded not guilty to a single charge of attempting to murder the justice.

Law enforcement, both federal and local, has been present at the justices’ homes since the protests began. But the governors of Virginia and Maryland have previously said that responsibility for managing the protests belongs to federal law enforcement.

In a letter sent in May to U.S. Attorney General Merrick Garland, the two governors cited a federal law that explicitly forbids demonstrations at the homes of judges, and they urged Garland to enforce it.

Afterward, at Garland’s direction, the U.S. Marshals Service “accelerated the provision of around-the-clock security” at the justices’ homes, according to the Department of Justice.

Still, the protests have continued, intensifying in recent days after the court’s conservative majority handed down a series of major decisions that aligned with Republican political preferences on abortion, gun control and the government’s ability to address climate change.

On Saturday, a spokesperson for Maryland Gov. Hogan suggested there were First Amendment concerns with the provisions cited by the marshal, and he criticized what he described as the “continued refusal by multiple federal entities to act” on the protests.

“Had the marshal taken the time to explore the matter, she would have learned that the constitutionality of the statute cited in her letter has been questioned by the Maryland Attorney General’s Office,” wrote Michael Ricci in his response to Curley.

“Amid all this, our state and local law enforcement agencies have been on the front lines every day protecting these communities,” he said.

A spokesperson for Virginia’s governor said that Virginia law enforcement would continue to assist, but called on Garland to “do his job by enforcing the much more robust federal law.”

In a series of letters sent over the weekend, the marshal of the U.S. Supreme Court called on officials in Maryland and Virginia to “enforce” state and local laws that, she wrote, “prohibit picketing outside of the homes of Supreme Court Justices.”

“For weeks on end, large groups of protesters chanting slogans, using bullhorns, and banging drums have picketed Justices’ homes in Virginia,” Marshal Gail Curley wrote to Virginia Gov. Glenn Youngkin. “This is exactly the kind of conduct that Virginia law prohibits.”

Curley sent similar letters to Maryland Gov. Larry Hogan, along with several Maryland and Virginia county officials.

Curley’s requests come after weeks of protests and picketing outside the homes of the court’s conservative justices in the Maryland and Virginia suburbs of Washington, D.C. The protests began in May after a draft leaked of the justices’ eventual decision to overturn Roe v. Wade.

In June, police arrested an armed man near the home of Justice Brett Kavanaugh after the man called 911 to confess that he was suicidal and had traveled to Maryland with the intent of harming both himself and Kavanaugh. He has since pleaded not guilty to a single charge of attempting to murder the justice.

Law enforcement, both federal and local, has been present at the justices’ homes since the protests began. But the governors of Virginia and Maryland have previously said that responsibility for managing the protests belongs to federal law enforcement.

In a letter sent in May to U.S. Attorney General Merrick Garland, the two governors cited a federal law that explicitly forbids demonstrations at the homes of judges, and they urged Garland to enforce it.

Afterward, at Garland’s direction, the U.S. Marshals Service “accelerated the provision of around-the-clock security” at the justices’ homes, according to the Department of Justice.

Still, the protests have continued, intensifying in recent days after the court’s conservative majority handed down a series of major decisions that aligned with Republican political preferences on abortion, gun control and the government’s ability to address climate change.

On Saturday, a spokesperson for Maryland Gov. Hogan suggested there were First Amendment concerns with the provisions cited by the marshal, and he criticized what he described as the “continued refusal by multiple federal entities to act” on the protests.

“Had the marshal taken the time to explore the matter, she would have learned that the constitutionality of the statute cited in her letter has been questioned by the Maryland Attorney General’s Office,” wrote Michael Ricci in his response to Curley.

“Amid all this, our state and local law enforcement agencies have been on the front lines every day protecting these communities,” he said.

A spokesperson for Virginia’s governor said that Virginia law enforcement would continue to assist, but called on Garland to “do his job by enforcing the much more robust federal law.”

Historically, doctors have played a big role in abortion’s legality. Back in the 1860s, physicians with the newly-formed American Medical Association worked to outlaw abortion in the U.S.

A century later, they were doing the opposite.

In the 1950s and 1960s, when states were liberalizing abortion laws, “the charge for that actually came from doctors who said, ‘This is insane, we can’t practice medicine, we can’t exercise our medical judgment if you’re telling us that this is off the table,’ ” explains Melissa Murray, law professor at New York University.

The Supreme Court ruled in doctors’ favor in Roe v. Wade in 1973. The majority opinion spoke of “the right of a woman in consultation with her physician to choose an abortion,” Murray says.

Yet doctors and patients are all but absent from the latest Supreme Court majority opinion on abortion in Dobbs v. Jackson Women’s Health Organization. In fact, in the opinion, Justice Samuel Alito uses the derogatory term “abortionist” instead of physician or doctor or obstetrician-gynecologist.

Legal experts say that signals a major shift in how the court views abortion, and creates a perilous new legal reality for physicians. In states where abortion is restricted, health care providers may be in the position of counseling patients who want an abortion, including those facing pregnancy complications, in a legal context that treats them as potential criminals.

“Alito’s framing is that abortion is and was a crime – that’s the language he uses,” says Mary Ziegler, a law professor at the University of California, Davis. There’s no dispute, she says, that “the result of a decision overruling Roe in the short term is going to be the criminalization of doctors.”

Roe v. Wade was doctor-centered

Doctors were at the heart of the court’s first landmark ruling on abortion, Roe v. Wade.

“The original Roe decision – it was very, very doctor-centered – extremely so,” says Ziegler, who has written extensively on the legal history of abortion. “At its inception, this was a right that was very much about health care and about the doctor-patient relationship.”

Roe and the abortion decisions that came after it like Planned Parenthood v. Casey, “had the framework that abortion is some sort of individual right, but it’s also health care,” explains Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

The court essentially told states: “You can put restrictions on abortion services and on provider qualifications as you do for other types of health care, and as long as they are not so onerous that we think they’re implicating Roe and Casey, we’re fine with that,” Shachar says.

State legislatures that wanted to restrict abortion did so using the apparatus of health care regulation, she says.

Those restrictions have included informed consent laws, waiting periods, telemedicine restrictions, clinic regulations, hospital admitting requirements for providers, insurance restrictions and more.

The effort to restrict abortion through medically unnecessary regulations – “was simultaneously, I think, treating abortion as health care and delegitimizing the idea that abortion is health care,” Ziegler says.

These regulations often tried to control the details of how doctors provide abortions more strictly than other areas of medicine, she notes. “The anti-abortion movement’s framing was basically, ‘We’re protecting women from the ‘abortion industry’ by regulating the way abortion providers work.’ “

A new legal framework

A more recent abortion decision – Gonzales v. Carhart in 2007 – previewed the Supreme Court’s move away from deferring to doctors in the context of abortion, Ziegler says. At stake was the legality of so-called “partial birth abortion,” a procedure used to perform late-term abortions, which Congress had banned in 2003.

“The fight in that case was about whether doctors get to define what this procedure is and whether it’s needed for patients or whether Congress does,” she says. “The Supreme Court in the case essentially says, if there’s any kind of disagreement about science – legislators get to break the tie.”

In Dobbs, the latest decision about abortion from the Supreme Court, “it’s an even bigger breach because there’s not even the pretense of caring about doctors,” she says.

Supporters of the Dobbs opinion don’t see the absence of physicians as an omission. Abortion “really doesn’t have any place in the practice of medicine,” Dr. Christina Francis of the Association of Pro-Life Obstetricians and Gynecologists told NPR after the decision was released. Her group submitted an amicus brief in the Dobbs case, which urged the court to overturn Roe v. Wade.

In his opinion for the majority, Alito quotes the Mississippi law banning abortion after 15 weeks, which called abortion “a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”

Ziegler says the idea has been percolating for years in the anti-abortion movement “that abortion was not medicine, was not health care.” She says it was fueled in the 1980s when Bernard Nathanson, a doctor who formerly provided abortions, had a political and religious conversion.

“He wrote this book in the ’80s called Aborting America, which was what he called an exposé of the ‘abortion industry,’ ” she explains. “That term really caught on with the anti-abortion movement – that essentially abortion was a for-profit industry, kind of like the tobacco industry.”

That idea has continued to be powerful and its influence is apparent in Dobbs, she says. Alito’s opinion reflects the idea that “abortion providers are not doctors in the sense we usually understand – that they were historically thought of as criminals and what they’re doing is unprotected.”

A ‘glaring’ omission

Many doctors and legal analysts adamantly disagree with Alito’s view. Two dozen medical groups, including the American College of Obstetricians and Gynecologists and the American Medical Association, told the court that abortion is a key part of reproductive health care, that it is safe, and that doctors need to be able to treat patients without government interference.

“I think the failure to consider the interests of the pregnant person and of the clinicians that treat them [in the majority opinion] was glaring,” says Molly Meegan, chief legal officer and general counsel at ACOG. She adds the use of the term “abortionist” in the opinion was “inflammatory, inaccurate – these are clinicians, these are providers, these are medical professionals.”

Shachar at Harvard takes issue with the “history and traditions” approach Alito used in his analysis to determine that abortion is not a protected right, focusing on statutes from the 19th century.

“Medical care has just changed so dramatically from – bite a bullet and we’ll amputate your leg,” she says. “It’s really shocking to say, ‘We need to go by the historical conception,’ when we have all agreed that we want to live in a modern society that has medical care, that doesn’t treat women like chattel.”

Michele Goodwin, who directs the Center for Biotechnology and Global Health Policy at UC Irvine, says Dobbs and the state abortion laws that can now take effect single out physicians who provide abortions “for disparate treatment amongst various other kinds of care.”

“That would be one thing if, in fact, these were very risky procedures that led to high rates of mortality, but, in fact, it’s just the opposite,” she says. Abortion is very safe, she adds, pointing out that pregnancy leads to death 14 times more often than an abortion. That means that doctors who provide abortions “are absolutely essential, actually, in the provision of reproductive health care,” she says.

The role of doctors ahead

Physicians who provide abortions are in an incredibly difficult spot as they try to navigate the new legal landscape, especially in cases where a pregnant patient is sick or has complications. Intervene, and you risk violating the law and being sued, losing your medical license, even going to jail. Don’t intervene and you could be risking your patient’s life, and potentially being sued by the patient or family.

“We are hearing from our doctors on the ground at all times of day and night,” says Meegan of ACOG. “They are scared, they are in an impossible situation, and they don’t know how to define laws that are happening by the minute.”

Dr. Katie McHugh is an OB-GYN who provides labor and delivery and abortion care at several clinics around Indiana, where abortion is currently still legal. Since the Supreme Court decision, she’s seen a wave of new patients coming from Ohio, Tennessee, and Kentucky for abortion care. She’s trying to keep track of the laws in these neighboring states to know what she can do for these patients.

“We’re trying to be very, very careful,” she says. “Especially as things are evolving, I’m sure that I have made a mistake. And it is so scary to me to know that I’m not only worrying about my patients’ medical safety, which I always worry about, but now I am worrying about their legal safety, my own legal safety.”

“The criminalization of both patients and providers is incredibly disruptive to just normal patient care,” she adds.

The legal landscape is very much in flux. Bans are going into effect, some have been blocked by judges, and new restrictions are being drafted by state lawmakers. The laws that are in effect are often confusing and unclear, and doctors warn that is likely to affect care beyond abortion, including miscarriage care and treatment for ectopic pregnancy and more.

It could be that doctors’ groups like the American Medical Association and ACOG get involved in the legal fight here and again play a role in pushing to liberalize abortion laws, just like they did decades ago.

“I think that medical societies have a responsibility and an influence that should be used right now,” says Meegan. She notes AMA recently adopted a resolution that defines abortion as a human right, and that many organized medical groups across specialties are united in fighting against the criminalization of medical care.

“Recent political and legal mobilizations around abortion have not been led by doctors,” notes Ziegler. “Historically, doctors have been a really big reason abortion was decriminalized before, and if [they’re] going to be again, I think you have to have the medical profession potentially be more outspoken and united in talking about this than it has been to date.”

Chelsea Becker spent 16 months in a California jail awaiting a murder trial after her pregnancy ended in a stillbirth. “I was prepared to just stay at least for the next 15 years in prison,” she told NPR.

Becker’s 2019 arrest drew national attention. With the backdrop of the Supreme Court blocking a Louisiana law that would shutter nearly all abortion clinics in that state, advocates warned that Becker’s arrest would empower more prosecutions for pregnancy outcomes.

In less than three years, a radically reconstituted Supreme Court ruled again on an anti-abortion law — this time using a Mississippi law to abolish federally protected abortion rights. And advocates, again, warn that pregnant people will be prosecuted for pregnancy loss — including miscarriages and stillbirths.

“What we have seen in cases where we have provided legal defense, mothers who experience a stillbirth or a miscarriage are blamed for that loss,” Dana Sussman, the acting executive director of the National Advocates for Pregnant Women (NAPW), tells NPR.

“Because of behavior or exposure of an alleged risk of harm to the fetus, they are then blamed for causes the pregnancy loss,” Sussman says.

Prosecuting pregnancy loss is not new

Prosecuting pregnancy loss has been a quiet, but upward trend across the nation — to such an extent that organizations like the NAPW have emerged to provide legal defense for people who have been charged due to their pregnancy outcomes. That is how Sussman’s organization came to represent Becker.

In 2013, NAPW partnered with Fordham University to track the arrests and prosecutions of pregnancies. They found just over 400 cases where pregnancy, including pregnancy loss, was used in a criminal investigation or prosecution from the time Roe v. Wade was decided in 1973 until 2005. But from 2006-2020, that number nearly quadrupled. While this research is ongoing, Sussman suspects 200-300 cases in this range will involve pregnancy loss.

There is one striking detail that stands out for legal experts: States are using laws to target pregnant people that were originally used to protect them.

At least 38 states have laws that makes it a crime to harm a fetus, according to the National Conference of State Legislatures. Legal experts say that these laws were originally intended to stop violence against pregnant people.

These so-called “fetal harm” laws enhance penalties for crimes against a pregnant person. By treating a fetus as a separate crime victim, these laws recognize crimes against pregnant people as two separate crimes. But, in practice, they have been used to investigate and prosecute different forms of pregnancy loss, including miscarriages, stillbirths and self-induced abortions.

Fetal personhood, anti-abortionist’s argument that the fetus deserves the full rights and protections as people, are at the heart of these fetal harm laws and other traditional murder laws being applied to pregnant people.

Applying these laws in this manner criminalizes a pregnant person’s behavior during the course of their pregnancy. And now that federal abortion protections have been abrogated, more people can be at risk of criminal charges for what they do — or don’t do — while pregnant.

In Becker’s case, the prosecution attributed her stillbirth to her use of methamphetamine during pregnancy. She admittedly struggled with addiction during pregnancy. Although, California’s primary murder law makes it a crime to kill a fetus in many circumstances, mothers are explicitly exempted from prosecution.

Nevertheless, the state argued that what Becker did during her pregnancy caused her stillbirth. This line of reasoning is widely rejected in the medical field.

Experts say women aren’t responsible for their losses

“There is no biological basis for that opinion, specifically with methamphetamine,” says Dr. Harvey Kliman, the director of the Reproductive and Placental Research Unit at Yale School of Medicine.

Kliman attributes prosecutions of pregnancy outcomes based on drug use to a misunderstanding about pregnancy.

“One has to have something called biological plausibility,” he says. “And methamphetamine has no biological pathway to lead to the end of a pregnancy. It just doesn’t.”

He says that pregnancy outcomes are determined by the health of the placenta, and there are no mechanisms for meth to harm the placenta.

Twenty percent of pregnancies in the U.S. end in a loss, according to Kliman, who has worked as an expert witness with NAPW on several cases. He says over 90% of these losses are caused by genetic abnormalities, which are often undiagnosed.

Sussman adds that, though the science does not support it, data shows that drug use makes up the most prosecuted pregnancy losses. But Kliman says that’s because prosecutors and pathologists misinterpret drug use as a causation, instead of a mere association.

Pregnant people are charged for ordinary conduct

Still, people using illicit drugs are not the only ones at risk of criminal charges for pregnancy outcomes. Sussman adds that she has worked with people who have been prosecuted for prescription medication such as legal medical marijuana, painkillers for preexisting conditions, or Adderall, which is medication commonly used to treat ADHD.

“We’ve had cases where a woman has fallen down a flight of stairs while light-headed during pregnancy and charged with attempted feticide because they suspected she did it on purpose,” Sussman adds.

Yveka Pierre is the senior litigation counsel at If/When/How, a reproductive justice nonprofit that in part provides legal defense for people charged with crimes stemming from pregnancies.

Pierre points to the case of Marshae Jones, an Alabama woman who was indicted for manslaughter in 2019 after being shot in the stomach while five months pregnant. Police said Jones started the fight that led to the shooting and failed to remove herself from harm’s way. But the district attorney later dropped the charge after a groundswell of national support.

“When someone wants to punish a group of people, they will get very creative in the ways that they try to effectuate a punishment,” Pierre tells NPR. Experts agree that confusion around what actions or inactions are punishable creates untenable legal ground for pregnant people.

Pierre says that before abortion rights were overturned in the Dobbs v. Jackson Women’s Health Organization decision last month if prosecutors could not charge someone for an abortion, they would charge them with murder. “But it’s a murder case that’s kind of imbued in the stigma of abortion,” she adds.

“So it’s not an abortion case, but they need to be able to put in front of the jury that this person considered an abortion or this person took pills to end their pregnancy, even though that has nothing to do with the facts they need to prove,” Pierre says.

Prosecuting losses in the Dobbs era

Pregnancy loss prosecutions were already rising under the protections of Roe, Sussman says. Now that the Supreme Court has stripped away the constitutional right to abortion, legal experts expect that prosecutions may continue to increase.

“Without Roe and Casey pushing back the line on fetal person, we are about to see the full re-imagination of criminal and civil codes in this country in the states that have already redefined fetuses and fertilized eggs and embryos as children or as human beings,” Sussman says. “Our data shows 1,700 cases [involving pregnancy loss] since 1973 and a rapid acceleration in the past 15 years.”

Pierre agrees that the Dobbs decision could portend more criminal charges for pregnancy outcomes, but she stresses that there are resources to help.

“I want folks to understand that just because someone is being prosecuted does not mean that the law actually supports that prosecution,” Pierre says, as she points to state constitutions and case law that can work in defense. She also points to organizations like hers which help highlight the various laws surrounding pregnancies.

But even if a person is able to obtain a lawyer and mount a successful defense, it may already be too late.

By the time NAPW successfully convinced a California judge to dismiss the murder charge against Becker, the penal system already owned 16 months of her life. But there are other costs associated with battling the criminal legal system.

The criminalization — and the participation of medical providers in the investigation — of pregnancy loss may dissuade people from seeking medical care. That leads to worse outcomes for pregnant people, mothers and babies, experts say. Sussman points to Tennessee’s 2014 fetal assault law, which was allowed to expire two years later. Medical officials have warned that this law discouraged women from being forthcoming about their pregnancies.

Becker says her experience discouraged her from another pregnancy. But she is inspired to advocate for reform measures to ensure no one else endures her experience. In partnership with the NAPW, Becker submitted testimony in support of a California bill that would, in part, remove the requirement that a coroner investigate deaths surrounding known or suspected abortions.