Building on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and third-party aid to the traveler if the purpose of the travel is to abort a pregnancy. Advocates for reproductive freedom recognize the need to establish an “underground railroad” akin to the surreptitious assistance of fugitive slaves fleeing the Antebellum South. A stricter evidentiary privilege for abortion-related communication is crucial to protect those who seek to defy the draconian new regime.
In this Article, I offer a model rule that legislatures and judges should adopt. I also propose a comprehensive set of related reforms including changes to the crime-fraud exception in privilege law, changes to attorneys’ ethical rules, and changes to regulations governing data privacy.
The benefits of this Article’s proposals could be significant. For those who need to terminate their pregnancies but live in states that have criminalized abortion—a population consisting largely of low-income people of color—the new privilege could be the difference between privacy or prison. The proposals in this Article would improve access to abortion, reduce exposure to reprisals in court after an abortion, and limit the surveillance that could otherwise plague people of childbearing age.
From a conceptual standpoint, this Article’s proposals would make privilege law more egalitarian by shifting the focus from the professional credentials of the audience to the subject matter of the conversation—a long-overdue reorientation. Evidentiary privilege should not be coextensive with economic privilege.