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December 2, 2021

What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?

The big news of the law world yesterday was the Supreme Court hearing oral argument in Dobbs v. Jackson Women’s Health Organization, the abortion case out of Mississippi which is viewed as a vehicle for the Justices to reconsider and potentially overrule abortion rights precedents like Roe and Casey.  Based on press reports, as collected here at How Appealing, it sure sounds like a majority of the Justices are prepared to overrule Roe.  Recalling some headlines revealing how abortion laws and debates can implicate crime and punishment issues, I thought it might be useful to flag some press articles of relatively recent vintage which highlight how the overruling of Roe could become of considerable interest for those who focus on criminal justice matters. 

Interestingly, the law at issue in the Dobbs case, Mississippi's Gestational Age Act, appears to only have "Professional sanctions and civil penalties" as the enforcement tools for seeking "to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation."  However, as highlighted by this cursory and abridged review of some press pieces, criminal law and even extreme punishments can be part of an abortion restriction discourse and may become very dynamic if Supreme Court actually does overturn Roe v. Wade:

From Chicago Tribune from April 2018, "Who would be punished for abortion in a post-Roe America?"

From CNN in May 2019, "Alabama doctors who perform abortions could face up to 99 years in prison -- the same as rapists and murderers"

From Texas Tribune in March 2021, "Another Texas GOP lawmaker is attempting to make abortion punishable by the death penalty"

From Slate in September 2021, "Caught in the Net: Interrogated, examined, blackmailed: how law enforcement treated abortion-seeking women before Roe."

From The Guardian in November 2021, "What will US’s future look like if abortion becomes a crime again?

December 2, 2021 at 01:07 PM | Permalink

Comments

The more interesting thing—who gets say if woman goes to stare where abortion is legal in the context of the putative father suing to stop her from an abortion? What if the state tries to prosecute her for going out of state?

Posted by: Federalist | Dec 2, 2021 1:21:48 PM

A basic interest here is that people who are most likely to be part of the criminal justice complex are those for which the right to choose is very fundamental. Not just those in prison, though those too.

Like many things, those who care about criminal justice and the needs of those involved, it is not just about sentencing.

It is very unclear to me how often the lack of abortion rights will lead to serious criminal penalties. The preferred approach is to go after doctors, largely civilly. Texas has found another way to use civil remedies too.

The end of abortion rights will lead to more horror stories like out of Pennsylvania years back as safe carefully regulated medical procedures become black market or grey market affairs.

This is not to say it won't come up, including for people who are pregnant and/or get abortions. Various analysis can be found listing cases here though again the issue of abortion rights go much beyond such cases. But, I don't want to handwave them.

And, no abortion rights will include various criminal penalties. I would note as a footnote the case of Wolf v. Colorado, an important 4th Amendment case, was abortion related.

Posted by: Joe | Dec 2, 2021 1:35:12 PM

I've been wondering about the stare decisis issues related to dumping Roe and how that might affect, e.g., Eighth Amendment protections that I worry a majority of the Court thinks were wrongly decided.

Posted by: John | Dec 2, 2021 4:20:51 PM

I've been wondering about the stare decisis issues related to dumping Roe and how that might affect, e.g., Eighth Amendment protections that I worry a majority of the Court thinks were wrongly decided.

Posted by: John | Dec 2, 2021 4:20:52 PM

An overruling of Roe would very likely entail -- indeed, would very likely depend upon -- an express or implied rebuke to the doctrine of substantive due process. It was under that "penumbra"-like theory that the (unmentioned in the text of the Constitution) right to abortion came into being. Hence the most important long run development from an overruling of Roe on that grounds would not be criminal penalties for persons performing abortions, for which there is little appetite even among most pro-life people. Instead, there would be a new look at other "rights" manufactured by the judiciary under substantive due process (or similarly ambitious theories by whatever name they be called). In criminal law, one of the most prominent judicially-manufactured "rights" was the right to Miranda warnings. The Constitution requires voluntariness but nowhere requires that warnings be given in order to assure voluntariness (which they don't do anyway). Thus I think the dissent in Dickerson will get new life should the Court overrule or effectively overrule Roe.

Posted by: Bill Otis | Dec 2, 2021 5:18:51 PM

Is the whole gang coming back together like old shows on Netflix?

Interesting how we go from substantive due process to so-called invented rights arising from clearly enumerated rights.

Perhaps, the exclusionary rule (put in place in Mapp v. Ohio by Justice Tom Clark, a justice often a conservative dissenter on the Warren Court) will be next.

Abortion rights can be defended on various grounds though the people at large are supportive of many substantive due process liberties. Justice Thomas has voiced support of unenumerated Privileges or Immunities, including marriage and rights to raise one's child.

So even if SDP is tossed, abortion rights can stay. Even in Casey itself, equal protection was cited as a primary interest, which has many defenders. Surely, conservatives will find fault with it, but it is not SDP.

As to "appetite," one hopes so, but the anti-abortion side seems much more gung ho of late. One article recently noted the growing lack of rape exceptions.

Posted by: Joe | Dec 2, 2021 8:57:13 PM

Some states have laws that do impose criminal penalties on those that provide or assist in an abortion. I am not sure that if any actually call for jailing the woman who has an abortion, but that's not necessary. As the recent experience in Texas shows, it's enough to threaten the doctors and nurses with criminal or (as in Texas) civil penalties.

The interesting thing about criminal penalties is that there is a very good chance of nullification. Most abortion providers operate in urban and suburban areas in which many if not most of the residents are pro-choice. So it is unclear that the elected prosecutors in those places will file charges. Even if a charge gets filed, it will be difficult to seat a jury that would convict.

Posted by: tmm | Dec 3, 2021 1:32:40 PM

One outcome I haven’t seen discussed much is that it will lead to increased abortion “rights” (yes, the quotation marks are appropriate) in many states. Wouldn’t NY, CA, and the other liberal hellholes then be free to eliminate all abortion restrictions?

It seems justice will not be truly done until the obvious and scientifically clear is acknowledged by the courts. A human being is created at fertilization and is then afforded the same life, liberty, and pursuit of happiness all other humans are afforded.

Posted by: TarlsQtr | Dec 3, 2021 3:57:50 PM

Joe --

"Perhaps, the exclusionary rule (put in place in Mapp v. Ohio by Justice Tom Clark, a justice often a conservative dissenter on the Warren Court) will be next."

'Tis the season for hope.

"Abortion rights can be defended on various grounds though the people at large are supportive of many substantive due process liberties....So even if SDP is tossed, abortion rights can stay."

They can stay if adopted by legislation, sure. Pelosi has suggested just that course. But that's not the question here. The question here is whether they can be found in the Constitution, and the answer is no, as I and a healthy chunk of legal observers (not all conservatives by any stretch) expect to say in its decision in this case.

Posted by: Bill Otis | Dec 3, 2021 7:50:22 PM

tmm --

It's possible, as you say, that some right-to-life state statute could provide for jail for a doctor or other person who performs an abortion, but the realistic prospect that anyone will go to jail for it is very low. In the quarter century before Roe legalized abortion, I'm not aware of anyone who went to jail for performing one. Now there may be some, but they are so few in number that it cannot be a significant factor in the debate. It's like saying that, because some innocent people go to prison (which happens), we should abolish prison. There are those who take that position, but they're crazy, not to put too fine a point on it.

But all that is off the point, as is any consequentialist argument in this Mississippi case. Indeed, it's a devastating point against the pro-choice side that it presents consequentialist arguments at all IN COURT. Such arguments are perfectly proper and routine for the legislature, whose duty it is to assess the desirability of a given course of action. But that is not a court's duty. SCOTUS's duty here is limited -- to decide, desirable or not, if a right to abortion is IN THE CONSTITUTION.

Posted by: Bill Otis | Dec 3, 2021 8:05:52 PM

"question here is whether they can be found in the Constitution"

They are. It isn't SDP or nothing.

Even when Roe was handed down, people were raising other constitutional claims. Much more now. And, I think they are rather strong.

I'm sure you disagree with them too, but it isn't SDP or nothing.

I sorta agree with you on the criminal consequences, but I'm not sure how many will matter for "the debate." Targeting one many provider in some state would be significant. Debates regularly focus on a few celebrity cases. Across the ideological divide.

Dred Scott v. Sandford, e.g., had limited real life effects. Slavery in the territories was a limited thing at that point. But, this favorite reference (though now Plessy seems to be popular) on the anti side largely affected the debate.

I also agree the bottom line here is the Constitution. So, in the medicinal marijuana case Justice Stevens was sympathetic but held against Raich. But, I think the abortion rights side is correct there.

Posted by: Joe | Dec 3, 2021 10:14:42 PM

Bill,
Are you saying CJLF would be "devastated" by making consequentialist arguments about why Mapp should be overruled?

On a v. different note, if the Court is really going to be neutral on abortion and if people really believe abortion is murder, how soon can we expect to see the execution of a woman who obtains an abortion?

Posted by: John | Dec 3, 2021 11:08:17 PM

John --

"Are you saying CJLF would be 'devastated' by making consequentialist arguments about why Mapp should be overruled?"

Since I am a guest author on CJLF, I have no portfolio to speak for it. But if you want to know what I'm saying, that's an easy one: Just read it.

It's the oldest and lamest line around to ask, "Are you saying __________," and then fill in the blank with some nonsense that you'd like to jam in your opponent's mouth. That might have worked in ninth grade debate practice. This is a different forum.

"...if the Court is really going to be neutral on abortion and if people really believe abortion is murder, how soon can we expect to see the execution of a woman who obtains an abortion?"

Never, as you knew when you typed this zinger.

Posted by: Bill Otis | Dec 3, 2021 11:49:56 PM

I sure hope they leave Roe, or something like it, in place. Government forbidding conduct it disagrees with is a recipe for disaster. See the war on drugs. The argument over whether or not a fetus is a person is a legitimate question, but it's not sufficient reason. Abortion sucks. But I don't think forbidding it will help the country.

Posted by: Wiliam Jockusch | Dec 5, 2021 7:49:51 AM

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