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May 6, 2022

Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized

As mentioned in this post right after the leaked draft SCOTUS opinion suggested Roe v. Wade will soon be overturned, if abortion issues are returned entirely to elected officials, a lot more abortion-related activity will be criminalized in a lot more states raising all sorts of new issues regarding sentencing law and policy.  I flagged a few of the sentencing provisions of some of the recently-enacted criminal prohibitions of abortions in a few states in my prior post, and now Politico is on this beat with this new piece fully headlined, "Abortion bans and penalties would vary widely by state: The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license."  Here are excerpts:

Abortion bans set to take effect if Roe v. Wade is overturned could mean lengthy prison sentences for people who have an abortion, the physicians who perform them or those who help people access the procedure. The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license.

Even as national Republican leaders, many of whom have worked for decades to outlaw abortion, dismiss fears of prosecutions, state lawmakers have already enacted mandatory minimum sentences that would go into effect if Justice Samuel Alito’s draft opinion is handed down....

[I]n Texas, anyone who performs, induces or attempts an abortion where “an unborn child dies as a result of the offense” is guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine — under the state’s trigger ban.  In Alabama, anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000 under the state’s pre-Roe ban.  And in South Carolina, a person who ends their pregnancy either with a pill or by other means faces up to two years in prison and a fine of up to $1,000 under state law.

Bills moving in some states go even further. Legislation in Louisiana that would classify abortions as homicide and extend legal personhood to fertilized eggs was voted out of committee on Wednesday.  Homicide is punishable in the state by the death penalty or life without the possibility of parole....

And while some states — such as Idaho, Missouri and Kentucky — have legal language saying people who get an abortion can’t be charged, those patients could be forced to testify against their doctor or romantic partner who helped them access the procedure.  “Even if a bill doesn’t allow pregnant people to be charged directly, we’re concerned about the ways increased surveillance could lead to people being criminalized for an abortion or another kind of pregnancy loss,” Farah Diaz-Tello, the senior counsel and legal director of the group If/When/How, told POLITICO.

Notably, this new New York Times article discusses the growing use of "medication abortion" under the headlined "Abortion Pills Stand to Become the Next Battleground in a Post-Roe America." Here is how the lengthy article concludes:

Some abortion rights advocates said that the availability of safe and effective abortion pills has eliminated one of the greatest fears in the years before Roe — but has added a new one.  “One of the sharpest distinctions is really between the idea of hemorrhaging and the idea of handcuffs,” said Kristin Ford, a spokeswoman for NARAL Pro-Choice America.  “In the pre-Roe world, there was a legitimate concern about people bleeding out in back alleys. That’s not the reality we face. What we’re looking at now is a world of criminalization.”

The development of abortion drugs and the eagerness of some to distribute them and of others to prohibit them already has me wondering if we could be on the verge of a whole new frontier for the war on drugs. Remarkable times.

Recent related post:

May 6, 2022 at 03:41 PM | Permalink


Isn't this all just speculation? And to what purpose? To put pressure on the Justices who agree with the leaked draft? Is responding to public pressure really what we want the Supreme Court, or any court, to do? Don't we want instead for it to interpret the text of the Constitution as written, without intimidation, and let the other branches of government deal with such policy fallout as there may (or may not) be? Public opinion is fine, indeed essential, for the political process, but it's precisely the genius, and the value, of an INDEPENDENT judicial branch to be insulated from it.

When, in days of yore, we saw mobs outside the courthouse demanding the conviction of a particularly reviled defendant, liberals and civil libertarians knew how wrong this was. I guess memories are short.

One could view this kind of stuff as preemptive scaremongering. Still, at least no one is suggesting sending mobs to the conservative Justices' homes.......oh......wait......................

Posted by: Bill Otis | May 6, 2022 5:01:09 PM

Bill, I think it is incredibly important to start working through the criminal justice and sentencing implications of Roe being overturned, which could be profound and profoundly challenging.

Tarls has indicated a "fair reading of the constitution does dictate that all abortion should be illegal"; I suspect he means that every intentional abortion (including post-fertilization contraception) must be treated as murder because the fetus is a "person" protected by the Constitution. I am still waiting to hear if you agree with that "fair reading" of the Constitution or if you think, to use Tarls' preferred terminology, that the Constitution still allows "the murder of children by a death cult” as long as state law permits such acts by safeguarding the right to abortion under some circumstances.

Whether the Constitution may or may not be fairly read to demand treating all abortions as homicide, there are likely 500+ women who may get pregnant in "trigger law" states this weekend who may only realize they are pregnant around the time we are likely to get the ruling in Dobbs. If the goal of these criminal laws is to deter unwanted pregnancies, perhaps it is useful for these women to know now what punishments abortion providers may be soon facing. (The data on abortions I have seen suggest there are lately about 800,000 yearly abortions, or well over 2,000 per day. That is the basis for my guess there could be 500+ unwanted fertilizations this weekend alone in trigger law states.)

This brings me to one of many interesting criminal law/sentencing stories here. If the goal of these criminal prohibitions is to, in part, deter unwanted pregnancies and abortions, why do they often preclude any criminal charges against the woman who got pregnant and seeks an abortion? That seems a strange way to approach these matters in light of traditional criminal theory (though there are notable mitigating factors in play). All the more reason I think it important to start talking through these issues given the reasonable basis we now have to expect Roe to be reversed in a matter of weeks (or perhaps sooner, I believe Ed Whelan has urged SCOTUS to release Dobbs ASAP).

I have lots more to say on these important and urgent topics, but for now I just want to hear your view on Tarls' "fair reading" of the Constitution and also whether you think it strange that many abortion criminalization laws seem written to give immunity to a chief participant in the supposed crime.

Posted by: Doug B | May 6, 2022 7:25:03 PM

"Tarls has indicated a "fair reading of the constitution does dictate that all abortion should be illegal"; I suspect he means that every intentional abortion (including post-fertilization contraception) must be treated as murder because the fetus is a "person" protected by the Constitution."

If abortion is murder, still not clear to me why the woman who solicits it is not a premeditated murderer of an innocent and helpless life and why she should not be tried and covicted of murder and sentenced to at least life in prison. But leaving that aside, from law school Torts class, I remember the Palsgraf case--dealing with how far back civil liability extends--proximate cause? How far back does liablitly for the murder of an innocent life extend? Many abortions stem from the failure to use birth control? Who did not use it? The man or the woman or both. If the man, is he not an accessory to murder? Should he not be tried and convicted and imprisoned? (Just doing a Tucker Carlson series of quesitons here)

Posted by: anon1 | May 6, 2022 9:02:41 PM

Doug --

I guess you missed this, so I'll say it yet again. My view is that the Constitution does not address abortion at all, and therefore does not say that it must be allowed, or must be forbidden, or anything in between. Given the Constitution's silence, abortion is left to the ongoing political process. That's what democracy is about.

(I might add that the Constitution also does not require the states to permit, or to forbid, murder. If a state wants to permit murder, the answer is not to file a suit in federal court seeking some absent-from-the-text federal "constitutional" rule. The answer is to lobby the state legislature to enact a statute forbidding murder -- either that or just move to another state).

As I say, and as is increasingly obvious, all the current carping about a non-existent opinion is just an attempt to rally the mob to intimidate the Court -- a bullying ploy from which you notably and unfortunately register no dissent.

To answer your other question: If and when there is an opinion of the Court, then I would need to see its exact language, the exact language of any state statute enacted in its wake, specifically what behavior if any gets indicted, the facts of the case, and the arguments of counsel. Only then can a discussion be anything more illuminating than scaremongering hypotheticals.

Posted by: Bill Otis | May 7, 2022 1:52:02 PM

Thanks, Bill, as I just wanted to confirm that you think Tarls is off-base when asserting that a fertilized egg/fetus/unborn baby is a "person" as defined by the Constitution and thus garners the full array of constitutional rights and protections of persons. I understand you to be saying a fetus is NOT a "person" and has no rights/protections except as provided by legislatures through the democratic process. The Constitution is, of course, not silent about the many rights of "the people" and "persons," and I am glad you have now reiterated that you do NOT think any constitutional rights apply in any way to any fertilized egg/fetus/unborn baby. It is all about what legislatures have to say on these matters, as you see it.

Critically, at least 13 legislatures have already provided, though so-called "trigger laws," that when Roe is overturned many or nearly all abortions would be broadly criminalized. Since Roe could be overturned as early as next week --- and likely will be overturned before the end of next month --- I do not consider it to be "carping" to try to better understand the implications and applications of criminal prohibitions THAT HAVE ALREADY BEEN ENACTED INTO LAW by the democratic process. In prior posts, I have quoted the "exact language" of various state statutes that criminalize abortions and will become effective as soon as or soon after SCOTUS overturns Roe.

I think it is terrible for anyone to bully any public officials as they are seeking to do their jobs, and I will eagerly condemn any and all bullying efforts. But it strikes me as strange to suggest that exploring, ASAP, the criminal justice and sentencing implications of Roe being overturned is a some form of bullying. There are so many complicated and debatable issues here, and it took a number of comments for me to fully appreciate that Tarls thinks a fertilized egg is a "person" garnering all constitutional rights whereas you do not think a fetus/unborn baby has any constitutional rights. And that is just the very beginning.

One issue which I have been thinking about, and which your phrase "statute enacted in its wake" has me thinking more about, is whether defendants might have due process or other arguments to try to preclude the application of any "trigger laws." I am not aware of any other criminal statutes written to come into effect only if/when some uncertain future event takes place (I think South Dakota's trigger law was passed way back in 2005). Perhaps someone is working on a declaratory judgment -- in state or federal court -- to seek some clarity on such novel issues, but they could become "live" as soon as Monday and seem very likely to be pressing before we celebrate Independence Day.

Posted by: Doug B. | May 7, 2022 3:39:56 PM

If I was a criminal defense attorney (which I am not) and I was having to defend somebody accused of homicide based on the commission of abortion, I would take a very strong look at some of the "stand your ground" or "castle doctrine" laws that have been passed recently. While they were not intended to apply to this situation and it is a bit of a stretch, some of the language would give juries a hook to refuse to convict on these charges. (Of course, I would not be surprised if the states with these doctrines quickly started passing language expressly providing that the right to use force to defend oneself or another from harm did not apply to the potential risks of pregnancy.)

Posted by: tmm | May 9, 2022 11:08:11 AM

Doug B,

In my state, it is not unusual (not common but not unusual) for statutes to include an effective date. Normally, it is a date certain, but we have had statutes (most recently our "raise the age" bill) that included a contingency/trigger provision (in that case, providing funding for the additional juvenile services that would be required). So far, nobody has suggested that such contingencies made the bill invalid.

Posted by: tmm | May 9, 2022 11:12:14 AM

tmm --

Exactly. If a an anti-looing statute provides a $500 fine for an offense during a Category IV hurricane and a $1000 fine for an offense during a Category V hurricane, what would be wrong with that? No one knows when each kind of hurricane will strike, if ever, but that uncertainty about the date hardly makes to law discriminatory in any invidious way.

Posted by: Bill Otis | May 9, 2022 1:35:01 PM

Doug --

-- "I understand you to be saying a fetus is NOT a "person" and...."

You don't need to work to "understand" what I write. Just read it as I wrote it. No more, no less. Real easy.

P.S. TarlsQtr is a friend of mine and a wonderfully smart and analytical guy. We don't agree on everything just as you and I don't disagree on everything. Also, neither he nor you nor I gets to decide when a potential human being becomes an actual human being. How the hell would I know? I'm a brief writer. I don't have that kind of qualification any more than you do. I do know, however, that treating a fetus as if it were a wart can't possibly be right.

-- Speaking of criminal penalties for abortion: I see that Chuck Schumer is trying to outlaw criminal punishment for abortion nationwide by having legislation codifying Roe coast-to-coast. Now I know you have often and enthusiastically spoken up for federalism, i.e., that each state should decide its own criminal law. Schumer's legislation would turn that on its head by creating a federal one-size-fits-all rule. If your past views are any guide, you would oppose that legislation. Do you?

Posted by: Bill Otis | May 9, 2022 1:50:38 PM

Interesting points, tmm and Bill, about contingency criminalization, though I am sure someone could and will argue that there are unique due process issues when a (former) constitutional right may be at stake. Those arguments may fail, but I do wonder if there would be a problem with, say, a California legislature now making it a crime to drive a car that burns gasoline to be effective in 2035 but only if Elon Musk owns Twitter. Not a perfect analogy, but you get the idea.

Bill, I read what you wrote, and I am just eager to avoid any ambiguity. When you say "the Constitution does not address abortion at all," I take this to mean you do not think that references to "person" and "people" in the Constitution has any application to fertilized eggs or fetuses or unborn babies. That, I think, is a fair understanding of what you wrote, but you can tell me otherwise if it is not.

On criminal penalties, you are right that I think federal criminal powers to punish should be generally limited consistent with our structures of government wherein states have plenary police powers and our Constitution's preamble stresses a commitment to "secure the Blessings of Liberty." But federal statutes seeking to limit state criminal powers to punish in the service of liberty do not trouble me nearly so much, though the context always matters (e.g., a federal statute that said a state could not punish certain "fighting words" on blogs would bother me less than a federal statute that said states could not punish any kind of fighting).

Most critical here, there are many who believe women could and should be protected from criminal prosecution for abortions under the privileges or immunities clause of the 14th Amendment. (I believe your fav, Justice Thomas, shares my view that we are long overdue in giving the P-I clause its due.) It seems to me, if written to provide immunity to women who get first-term abortions, a federal statute could be potentially justified by Section 5 of the 14th Amendment which expressly recognizes that Congress may need to enact legislation to protect rights that some states are eager to take away. In other words, I generally prefer legislation that extends individual liberty and/or limits criminal punishments at any level of government, though the particular details/context will always matter.

Posted by: Doug B. | May 9, 2022 5:21:49 PM

Doug --

Lots to respond to here, but I'll just try to get to the underlying basics, that being the propriety of the government's attempts to regulate abortion.

There are those who think that human life begins at conception. To them, any abortion is murder. At the other extreme, there are those who think any attempt to regulate abortion in any form (i.e., partial birth abortion or harvesting for body parts) is effectively imposing slavery on women, and are those opposed to such regulation altogether in any circumstance.

As I think you know, I am a conventional Reagan/Bush conservative, and I do not believe religious ideas, however wholesome, should run an intentionally secular state. Being a conventional thinker, I have a middle ground position: The interests of the mother are important, but so is the state's interest in protecting potential human life. So I have what I believe is the predominant position among the majority of the public: It is proper for the state to regulate abortion, but the regulation should be forgiving very early in pregnancy and where there are exceptional circumstances such as rape or incest. It should be less forgiving in other circumstances, and can properly be barred and criminalized in some (i.e., the ones I named, plus possibly others such as sex-selection abortion or late in the pregnancy simply to retaliate against the father).

The question is where exactly we draw the line. No part of the Constitution answers that question, including the Privileges and Immunities Clause. The Constitution is silent on the matter. For that reason alone, the Alito draft opinion is correct (and its main reasoning has been endorsed for years even by liberal legal scholars). Federalism is right here: It's up to each state, one at a time.

Posted by: Bill Otis | May 11, 2022 9:15:16 AM

Very helpful to have this clear statement of your views, thanks. Now what do you think of the new USSC nominees?

Posted by: Doug B. | May 11, 2022 12:02:25 PM

Am not sure that 14th Amendment is a viable avenue for federal legislation. I am thinking of (hopefully I have name right) City of Boerne case in which Supreme Court found that 14th Amendment allowed Congress to enact legislation to protect constitutional rights not to create constitutional rights. It might be an avenue for preempting state legislation that appears to bar travel to a different state for the purpose of having an abortion.

Posted by: tmm | May 12, 2022 5:50:33 PM

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