Criminalization by Other Means is a richly documented and analytically rigorous article that examines how anti-abortion lawyers and activists in Texas have deployed local government ordinances and civil litigation as vehicles for advancing theories of criminal liability for abortion, even as formal criminal prosecutions remain nearly nonexistent. The article’s central thesis—that the meaning and reach of criminal law have been expanded through civil litigation—is both timely and underexplored in existing scholarship. This article spotlights an emerging way in which criminal law has appeared in the guise of private law, and, in so doing, makes an important addition to the fields of criminal law, family law, reproductive rights, and local government law.
One of the article’s primary strengths is its empirical foundation. Engle and Laurin read every publicly available “Sanctuary City for the Unborn” ordinance passed in Texas—local laws passed by city or county councils that aim to prohibit abortion within their jurisdictions through civil lawsuits filed by private citizens (and the city or country in some places)—and systematically tracked their provisions over time. They combine this analysis of over 70 such statutes (at the time of writing) with close readings of discovery petitions filed under S.B. 8 (the Texas legislation that operated like an abortion ban before Dobbs), wrongful death complaints, and related court filings. The resulting dataset is organized into three chronological “waves” (2019–2020, 2020–2022, and 2023–2026), which allows the authors to demonstrate how criminal law claims evolved in response to shifts in the legal landscape, including the Dobbs decision and the enactment of the Texas trigger ban after Dobbs. This temporal framework is particularly effective in revealing how anti-abortion advocates coordinated strategies across local government and civil litigation venues.
The article’s three stated contributions are each significant. First, it fills a gap in the abortion law literature by reading the criminal law claims embedded in these ordinances and civil actions for their doctrinal content, rather than dismissing them as purely symbolic. Prior scholarship tended to characterize the “Sanctuary City” ordinances as “wacky” gestures, and the S.B. 8 and wrongful death litigation as tools of intimidation. Engle and Laurin convincingly argue that such dismissals fail to appreciate the criminal law work being performed in these sites, such as elaborating theories of murder liability, advancing novel interpretations of accomplice liability, and making claims about the validity of pre-Roe “zombie” statutes. Claims of murder liability, for example, have arisen in a recent charge against a person accused of tricking his partner into taking abortion pills.
Second, the article contributes to criminal law scholarship by illuminating underappreciated mechanisms through which the meaning and reach of criminal law are expanded outside of legislative and prosecutorial offices. The authors show that local ordinances serve as testing grounds and rehearsal spaces for criminal law theories that later migrate into civil litigation and state legislation, as evidenced by the cross-fertilization between first-wave ordinances and the subsequent passage of S.B. 8, and by the second-wave ordinances’ recitations of the “writ-of-erasure fallacy” (contesting the power of judges to strike down legislation) that later appeared in legislative findings.
Third, the article illuminates the anti-abortion movement’s increasing acceptance of criminalizing the pregnant person. The authors trace how across the three waves, advocates have moved from exempting pregnant people from liability to insinuating and then openly asserting their criminality—particularly under the Comstock Act (a 1873 federal criminal law that some seek to refashion as a de-facto abortion ban) and the state’s pre-Roe statutes, neither of which contains a clear carve-out for the pregnant person.
Rather than cataloguing theories of liability, the authors show how each criminal law claim responds to specific enforcement barriers—extraterritorial limits, accomplice liability constraints, and prosecution exemptions—and how this evolution reveals strategic adaptation to those obstacles. They further identify five audiences to which the criminal law claiming is directed: courts that might validate the theories, those who might be chilled from providing or seeking abortion care, prosecutors who might bring charges and take advantage of discovery emerging from civil suits, the anti-abortion public who might be morally galvanized, and legislators who might enact new criminal or civil anti-abortion tools. Engle and Laurin acknowledge that many of the criminal law claims they analyze are incorrect as a matter of law. But they treat them seriously because of their potential influence. This balanced approach lends the article credibility and avoids the trap of either legitimating the theories or dismissing them.
Perhaps one area for further research concerns the comparative dimensions of the strategy the article documents. Engle and Laurin focus almost exclusively on Texas, and while this depth is a strength, the article’s conclusion notes that “abortion abolition” bills have been introduced in nearly every ban state and that the strategy has “national ripple effects.” Future scholarship could investigate whether and how the Texas playbook of criminal law has migrated to other jurisdictions, including to states with partial rather than total bans, and how the strategy interacts with varying state constitutional frameworks, different doctrines of accomplice liability, and the evolving attacks on shield laws enacted by abortion-protective states.
Additionally, as the authors note, the actual impact of these criminal law claims on the behavior of abortion providers, support networks, and pregnant persons remains largely unmeasured beyond anecdotal evidence of “fear and confusion.” Empirical research measuring the chilling effects—for example, through surveys of abortion fund operators, out-of-state telehealth providers, and informal support networks—would provide crucial evidence about whether the aspirational criminalization is achieving its functional objectives even without formal prosecution.
Criminalization by Other Means carries a lesson that extends beyond abortion law: legal fields with distinct doctrinal traditions are increasingly porous. In Texas, criminal law is being made in venues that criminal law scholars do not usually watch and that private law scholars often dismiss or ignore. Family law has long operated at the intersection of criminal enforcement and state coercion. Wrongful death suits brought by putative fathers, fetal personhood expansion, and campaigns to punish pregnant women are shaping criminal exposure and in turn shape family law doctrines. Engle and Laurin’s reconstruction of a coordinated strategy that moved from small-town ordinances to legislative findings could inspire a more expansive field of vision in family law.
