By Michael Tracy, JD Candidate, American University Washington College of Law ’28
Introduction
On June 24, 2022, the United States Supreme Court declared that the Constitution does not protect women and other pregnancy-capable people from forced childbirth.[1] In doing so, the Court’s majority opinion allowed states to renegotiate the terms of personhood and independently define life at conception or any other stage of development. As a result, the Supreme Court transformed the Constitution into a necropolitical legal architecture that validates the killing and devaluation of life within the logic of violence and state authority. Necropolitics is the system by which state actors strategically impose upon a people a state of existence whose value is the kind of death that can be inflicted upon them.[2]. In other words, the state can extract utility from the manner and method of a person’s death. This logic expands beyond the conventional sphere of law and disseminates the power to take the life of the pregnant person into the hands of the state, the individual, and the unborn. Read together, a governmentality of death emerges from the mixture of direct violence, gendered exploitation, and legal control characterized by the Court’s opinions in Dobbs.[3]
After the Supreme Court overturned fifty years of established constitutional precedent protecting the right to safe and effective reproductive healthcare,[4] there was an immediate[5] wave of state and local laws criminalizing those capable of pregnancy and their healthcare providers[6] for conduct associated with pregnancy, pregnancy loss, or birth.[7]In doing this, the Supreme Court has transposed the logic of necropolitics onto the body of the pregnant person within its jurisdiction. Legally, this has created a state of exception in which the constitutional rights of the unborn child are privileged at the expense of the rights of the pregnant person.
The Logic of the State of Exception
Through a combination of judicial and extrajudicial measures, U.S. courts and state governments have effectively deployed a logic of exception that has terminated the rights and protections of women and those capable of pregnancy. Traditionally, the state of exception has been thought of as a paradoxical legal act that suspends the law.[8] There are two main approaches to the legality of the state of exception. The first view holds that the exception remains a feature of the law itself, in other words, a state-authorized mechanism grounded in a specific legal source.[9] For example, many international human rights treaties include derogation clauses that allow states to suspend the protection of certain basic rights during a public emergency that threatens “the life of the nation.”[10]
The second approach sees the state of exception as extrajudicial, or something outside of the law that allows the state to act without legal restraint in times of emergency.[11] In his book, The State of Exception, Gregorio Agamben wrestles with the two schools of thought and concludes that the state of exception is “a fictio iuris par excellence,” which claims to maintain the law even as it is suspended, but in doing so produces a state of violence that has “shed every relation to law.”[12]
Adjudication against the pregnant person involves a method of exception similar to that described by Agamben. Here, the Court does not interrupt the law; instead, it insists that the Constitution never gave the protection it is removing.[13] This decision expands state power to legislate against the pregnant person’s reproductive care, with little concern for the life or well-being of that pregnant person.[14] The result is a paradox. The Court determined that states have a legitimate interest in protecting potential life.[15] However, allowing practices that cause the death of the pregnant person,[16] the death of the unborn,[17] the forced delivery of non-viable pregnancies,[18] or the humiliation[19] and now, criminalization of pregnancy loss,[20] naturalizes the death or injury of the pregnant person, fetus, or child. This protects neither potential nor actual life and destroys the very justification the Court gave to allow States the right to ban abortions in the first place.[21]
This paradox is best seen through the eyes of its victims. Kyleigh Thurman, a Texas resident, had taken steps to prevent pregnancy.[22] In January 2023, she began to experience irregular periods and intermittent cramping and dizziness.[23] She sought medical care when her symptoms worsened and contacted her OB-GYN, who suspected she was experiencing an ectopic pregnancy.[24] Ms. Thurman was made to seek treatment nine more times before she was finally given a methotrexate injection to terminate the ectopic pregnancy.[25] By the time she received the injection, the pregnancy had already ruptured. At the emergency room, staff informed her that she was bleeding out, and her right fallopian tube had to be removed to save her life.[26]
In addition to the physical and mental injury, the removal of Ms. Thurman’s fallopian tube will likely impact her ability to bear children in the future.[27] Ms. Thurman’s life, one of many affected by the Dobbs decision, became precarious and contingent upon whether the State would allow its physicians to provide the necessary life-saving treatment she needed to survive. The State “has a legitimate interest in protecting potential life,”[28] yet, because of its policies, Ms. Thurman was not only unable to carry a viable pregnancy to term, but she may also never be able to do so.[29] This is not a failure of the law, but a feature. What Ms. Thurman’s experience reveals about the state of exception is how little it contributes to the greater well-being of potential life, but how much it empowers the state to extract the maximum political and economic utility from the life of the mother while subjugating her to the power of death.
The Necropolis
Achille Mbembe’s concept of necropolitics provides a productive lens to understand the logic of the state of exception. Mbembe describes necropolitics as the state’s capacity “to define who matters and who does not, who is disposable and who is not.”[30] By centering death in his political analysis, he shows that states organize themselves around the “right to kill,” creating hierarchies between those with power and those who are vulnerable.[31] Necropolitical hierarchies are divided into two classes: “Sovereigns” and “Others.”[32] Sovereigns are empowered to defend themselves from and define what they perceive as threats, whereas Others are denied that same privilege even if that threat is imminent or unlawful.[33]
The Sovereign thus holds the power of life and death, rendering the existence of the Other as fundamentally precarious and contingent upon its whims. This state of precarity is an injury between life and death. Mbembe names this a “death-world,” in which entire populations are reduced to the value of the kind of death able to be inflicted upon them.[34]
It is precisely within these death-worlds that the logic of the state of exception can be found. Marlena Stell, another Texas resident, suffered a miscarriage during her pregnancy.[35] Ms. Stell’s doctor refused to treat her for fear of violating Texas’s abortion restrictions.[36] Ms. Stell was forced to carry for two weeks. “I felt like a walking coffin,” she said, “You’re walking around knowing that you have something that you hoped was going to be a baby for you, and it’s gone. And you’re just walking around carrying it.”[37]
This experience illustrates how the Dobbs decision enacts a brutal, specifically gendered death-world to assert control over pregnant people, limiting them to the reproductive function sanctioned by the state and denying them autonomy, bodily integrity, and the protections of their own constitutional rights. It creates a state of hyper-legality that disqualifies pregnancy-capable people from the unfettered benefits of being totally alive and enforces upon them an illegal discrimination that discontinues them from the rights and protections the U.S. is obliged to under its own constitution and international law.[38]
The ruling creates a permanent state of precarity in which certain populations are systemically exposed to harm while others can navigate around these restrictions with relative ease. The consequences of these death-worlds disproportionately affect both women of color and those of lower socioeconomic means. Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer note this discrepancy in their Dobbs dissent. They highlight the ways in which this decision means a death sentence for some women, and simply a hollowed-out existence for others:
Some women, especially women of means, will find ways around the State’s assertion of power. Others–those without money or childcare or the ability to take time off from work–will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives.[39]
Mothers living in states that have banned abortion are nearly two times as likely to die during childbirth, pregnancy, or soon after giving birth when compared to mothers living in states where abortion is legal and accessible.[40] The risk is worsened for women of color. Black mothers are 3.3 times more likely to die in states that have banned abortions than white mothers.[41] It is estimated that there has been an excess of 478 infant deaths and 59 pregnancy-associated deaths.[42] Black infants were severely affected with mortality rates 11% higher than expected.[43]
Yet, the majority in Dobbs frame abortion as “destroying… potential life.”[44] Race is the bitter sediment at the heart of all Western political practice, especially as it relates to the inhumanity of ruling over people. As Mbembe writes, “the function of racism is to regulate the distribution of death and to make possible the murderous functions of the state.”[45] These conditions produce terrors and counter-terrors[46] that justify the suspension of our rights in permanent states of exception and the continuous use of death-worlds outside the law, or, as in the example of abortion, that exist hyper-legally to protect the suspension of the Others’ rights and freedoms.
Human Rights Crisis
The law is clearly failing in this moment. Fundamentally, that is the state of exception’s true utility. By creating a space in which the state, the Supreme Court, can transgress individual rights while remaining technically lawful, the state renders the body of law hollow, inserting a legal vacuum into a legal order that privileges state will over human life and liberty. But it doesn’t have to be that way. The U.S. is party to several international human rights treaties that enshrine obligations to respect and protect individual rights within its borders. These include life, health, privacy, liberty, and the security of a person to be free from torture and other cruel, inhuman, or degrading treatment—rights that domestic and international human rights bodies have interpreted to encompass safe and legal access to abortion.[47]
As it stands, the U.S. is failing to meet these obligations under international human rights law. The U.S. has ratified the International Covenant of Civil and Political Rights (ICCPR),[48] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),[49] and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).[50] These treaties, alongside the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the U.S. has signed but not yet ratified, express an obligation to oppose the death-worlds created in the wake of Dobbs.[51]
The Human Rights Committee (HRC) has confirmed that state parties to the ICCPR must not adopt anti-abortion policies that “result in violation of the right to life of a pregnant woman or girl” and must “provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering.” Yet, approximately twenty-two million women and girls of childbearing age now live in states where abortion access is heavily restricted or totally inaccessible.[52] Which is to say nothing of the people who live in states that protect their right to abortion but who live under the threat of violence from family members or domestic partners emboldened by the Court’s decision in Dobbs. In practice, approximately one-in-three women in the U.S. are unable to access necessary reproductive healthcare.[53]
International law also forbids the surveillance and criminalization of pregnancy. The HRC has specifically urged State parties to “suspend the criminalization of women for the offence of abortion immediately,” and to “review all cases of women who have been imprisoned for abortion-related offenses to ensure their release.”[54] Yet, in the three years since the Dobbs decision, hundreds of criminal proceedings have been initiated against pregnant people for crimes related to pregnancy, pregnancy loss, or birth.[55] At the same time, state and federal legislatures have enacted hundreds of policies recognizing the unborn as autonomous, rights-bearing individuals.[56] Many state laws criminalizing abortion, particularly those providing no exception in the event of rape, incest, threat to the life or health of a pregnant person, or fetal inviability, cause “physical and mental suffering so severe in pain and intensity as to amount to torture,” in violation of Article 7 of the ICCPR.[57]
Conclusion
The post-Dobbs legal landscape exemplifies the necropolitical framework of the state of exception, rendering pregnant people’s lives precarious and contingent. Yet, despite its blatant human rights abuses, the state has used these forces to amplify the legal status of embryos and fetuses while actively eroding the social, legal, and medical freedoms of the people who bear them. According to the Court, the government is free to reject any special needs a pregnant person could demonstrate to justify an abortion, including the risk to life or physical health.[58] In practice, this policy enforces a state of exception in which pregnant people are systematically valued less and cannot be fully safe in their homes, workplaces, or public spaces.
Pregnant people continue to be exposed to systematic refusals, medical malpractice, enhanced financial burdens, stigma, violence, fear of violence, and criminalization while attempting to end their pregnancy, and thousands more will be forced to remain pregnant and give birth against their will.[59] If these death-worlds are allowed to continue, then so too will all their violence. What is made clear is this: this way of adding the unborn to the Constitution removes the living.
[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 229 (2022) (stating that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”).
[2] See generally Achille Mbembe & Libby Meintjes, Necropolitics, 15 Pub. Culture 11 (2003).
[3] 597 U.S. at 229.
[4] See generally Roe v. Wade, 410 U.S. 113 (1973).
[5] Elizabeth Nash & Isabel Guarnieri, 13 States Have Abortion Trigger Bans – Here’s What Happens When Roe Is Overturned, Guttmacher Institute (June 2022), https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned, (explaining that trigger bans are a type of law that sits dormant within a state by either not going into effect until Roe is overturned or as carry-over anti-abortion laws that were never repealed but were no longer enforceable during Roe and yet will remain after it).
[6] Mabel Felix, Laurie Sobel & Alina Salganicoff, Criminal Penalties for Physicians in State Abortion Bans, Kaiser Family Found. (Mar. 4, 2025), https://www.kff.org/womens-health-policy/criminal-penalties-for-physicians-in-state-abortion-bans/.
[7] Pregnancy as a Crime: An Interim Update on the First Two Years After Dobbs, Pregnancy Just. (Sep. 2025), https://www.pregnancyjusticeus.org/wp-content/uploads/2025/09/Pregnancy-as-a-Crime-An-Interim-Update-on-the-First-Two-Years-After-Dobbs.pdf.
[8] Giorgio Agamben, State of Exception, 33 (Kevin Attell trans., Univ. of Chi. Press, 2004).
[9] Id. at 23.
[10] See International Covenant on Civil and Political Rights art. 4, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR]; Convention for the Protection of Human Rights and Fundamental Freedoms art. 15, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]; Organization of American States, American Convention on Human Rights art. 27, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter ACHR].
[11] Agamben, supra note 8, at 23 (arguing that it is neither possible nor desirable to control emergency executive authority using the standard slow accountability mechanisms delegated to the judiciary and thereby endorses a pragmatic recognition of limited constitutionality).
[12] Agamben, supra note 8, at 59.
[13] Dobbs, 597 U.S. at 229.
[14] Talia Curhan & Peter Ephross, State Bans on Abortion Throughout Pregnancy, Guttmacher Inst. (July 7, 2025), https://www.guttmacher.org/state-policy/explore/state-policies-abortion-bans, (stating that since 2022, forty-one states have abortion bans in effect. Twelve states have a total abortion ban, and twenty-nine states impose a ban depending on gestational duration).
[15] See 597 U.S. at 229 (citing Roe v. Wade, 410 U.S. 113, 163 (1973)).
[16] Kavitha Surana & Lizzie Presser, “Ticking Time Bomb”: A Pregnant Mother Kept Getting Sicker. She Died After She Couldn’t Get an Abortion in Texas, ProPublica (Nov. 19, 2025), https://www.propublica.org/article/texas-abortion-ban-tierra-walker-preeclampsia.
[17] Timothy Bella, Woman Says She Carried Dead Fetus for 2 Weeks After Texas Abortion Ban, Wash. Post (July 20, 2022), https://www.washingtonpost.com/politics/2022/07/20/abortion-miscarriage-texas-fetus-stell/.
[18] Ind. Code § 16-34-3-4 (2024).
[19] Ind. Code § 16-34-3-4 (2024).
[20] Cary Aspinwall, Some States are Turning Miscarriages and Stillbirths Into Criminal Cases Against Women, The Marshall Project (Oct. 31, 2024), https://www.themarshallproject.org/2024/10/31/stillbirth-oklahoma-arkansas-women-investigated (Discussing how states across the country have used a series of fetal burial laws to criminalize women for not properly disposing of aborted fetal tissue following unintentional pregnancy loss).
[21] See 597 U.S. at 229 (citing Roe, 410 U.S. at 163).
[22] See Complaint at 8-9, Thurman v. Ascension Seton Williamson Hosp., No. D-1-GN-25-001182, 2025 WL 565234 (Tex. Dist. Ct. Aug. 6, 2024), https://reproductiverights.org/wp-content/uploads/2024/08/Thurman-EMTALA-complaint_2024.pdf.
[23] Id. at 9.
[24] Id.
[25] Id. at 10.
[26] Id.
[27] Id.
[28] See 597 U.S. at 229 (citing Roe v. Wade, 410 U.S. 113, 163 (1973)).
[29] Id.
[30] Mbembe, supra note 2, at 27.
[31] Id. at 17 (expanding on the Nazi project of the “final solution,” Mbembe says, “this state, he claims, made the management, protection, and cultivation of life coextensive with the sovereign right to kill.”).
[32] Id. at 17 (providing these terms).
[33] Id. at 18 (quoting “[T]he calculus of life passes through the death of the Other; or that sovereignty consists of the will and the capacity to kill in order to live.”).
[34] Id. at 40.
[35] See Bella, supra note 17.
[36] Id.
[37] Id.
[38] See U.S. Const. amend. XIV, § 1; Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW] (signed but not ratified by the United States) (signing the treaty obliges the U.S. not to act to undermine or defeat the purpose of the treaty); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT] (U.S. ratification on Oct. 21, 1994); International Convention on the Elimination of all Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S.195 [hereinafter ICERD] (U.S. ratification, Oct. 21, 1994); ICCPR, supra note 10 (U.S. ratification on June 8, 1992); Human Rights Committee (HRC), General Comment No. 36 art. 6 (Right to Life), at ¶ 8, U.N. Doc. CCPR/C/GC/36 (Sep. 3, 2019).
[39] 597 U.S. at 360-61.
[40] Maternal Mortality in the United States After Abortion Ban, Gender Equity Pol’y Inst. (Apr. 2025), https://thegepi.org/GEPI-maternal-mortality-abortion-bans.pdf.
[41] Id.
[42] Rachel Yavinsky & Mark Mather, Abortion Bans Linked to Sharp Rise in Sepsis, Infant, Death, and Pregnancy-Associated Deaths, New Research Shows, Population Reference Bureau (Aug. 7, 2025), https://www.prb.org/articles/abortion-bans-linked-to-sharp-rise-in-sepsis-infant-death-and-maternal-mortality-new-research-shows/.
[43] Id.
[44] 597 U.S. at 217.
[45] Mbembe, supra note 2, at 17.
[46] Gennie Diaz, The Harm of Graphic Anti-Choice Images, For AR People (May 22, 2024), https://forarpeople.org/the-harm-of-graphic-anti-choice-images/, (explaining that anti-abortion advocates will often frame abortion as murder and portray the fetus as its victim, yet simultaneously use the fetus as an image of horror to terrorize communities by displaying graphic images of fetal tissue on billboard and on protest signs or even wielding dead fetuses stolen from health clinics in their political demonstrations).
[47] See e.g., U.S. Const. amend. XIV, § 1; CEDAW, supra note 37 (Although not ratified, simply signing the treaty obliges the U.S. not to act to undermine or defeat the purpose of the treaty); CAT, Dec. 10, 1984, 1465 U.N.T.S. 85 (U.S. ratification on Oct. 21, 1994); ICERD, supra note 37 (U.S. ratification, Oct. 21, 1994); ICCPR, supra note 10 (U.S. ratification on June 8, 1992); Human Rights Committee (HRC), General Comment No. 36 art. 6 (Right to Life), at ¶ 8, U.N. Doc. CCPR/C/GC/36 (Sep. 3, 2019).
[48] ICCPR, supra note 10.
[49]CAT, supra note 38.
[50] ICERD, supra note 38.
[52] Human Rights Crisis: Abortion in the United States After Dobbs, Hum. Rts. Watch (Apr. 2023), https://www.hrw.org/sites/default/files/media_2023/04/Human%20Rights%20Crisis%20-%20Abortion%20in%20the%20United%20States%20After%20Dobbs.pdf.
[53] Lisa Fuentes, Inequity in US Abortion Rights and Access: The End of Roe is Deepening Existing Divides, Guttmacher Inst. (Jan. 17, 2023), https://www.guttmacher.org/2023/01/inequity-us-abortion-rights-and-access-end-roe-deepening-existing-divides#:~:text=That%20means%2029%25%20of%20the,Wade%20has%20been%20overturned.
[54] Human Rights Comm., Concluding Observations on the Seventh Periodic Report of El Salvador, ¶ 16, U.N. Doc. CCPR/C/SLV/CO/7 (May 9, 2018).
[55] Pregnancy as a Crime, supra note 7.
[56] Curhan, supra note 14.
[57] See Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 44, U.N. Doc. A/HRC/31/57 (Jan. 2016).
[58] See 597 U.S. at 360 (Breyer, Sotomayer & Kagan, JJ., dissenting) (quoting “States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm.”).
[59] Two New Studies Provide Broadcast Evidence to Date of Unequal Impacts of Abortion Bans, Johns Hopkins Bloomberg Sch. of Pub Health(Feb. 13, 2025), https://publichealth.jhu.edu/2025/two-new-studies-provide-broadest-evidence-to-date-of-unequal-impacts-of-abortion-bans#:~:text=The%20researchers%20estimate%20that%20the%20fertility%20rate,with%20bans%2C%20equivalent%20to%20a%200.8%25%20increase(stating that “[R]esearchers estimate that the fertility rate in state with abortion bans was 1.7% higher than expected. . . resulting in an estimated 22,180 births above expectation had the bans not been enacted.”)