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May 3, 2022

Without Roe, what does sentencing law and policy look like surrounding criminalized abortions?

Reproductive rights are not my area of specialty.  But my interest in constitutional jurisprudence and the work of the US Supreme Court has me paying close attention to the remarkable news that broke last night regarding a leaked draft Court opinion (per Justice Samuel Alito) stating that "Roe and Casey must be overruled" so as to "return the issue of abortion to the people’s elected representatives."  And, as the title of this post is meant to suggest, if Roe is overruled, returning the issue of abortion to elected officials means that a lot more abortion-related activity will be criminalized in a lot more states.  And, of course, new arenas of criminalization necessarily mean new issues regarding sentencing law and policy.

At the risk of getting too much of a head start on these issues, I took a look at some of the sentencing provisions of what seem to be among the broadest, recently enacted criminal prohibitions of abortions.  For example, Oklahoma last month enacted this abortion criminalization bill, and here are its sentencing elements:

A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed One Hundred Thousand Dollars ($100,000.00), or by confinement in the custody of the Department of Corrections for a term not to exceed ten (10) years, or by such fine and imprisonment.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

Meanwhile, Texas last year passed its "trigger law" to outlaw abortion 30 days after a court ruling allowing such a ban, and here are its key sentencing provisions:

This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted....

An offense under this section is a felony of the second degree [which carries a sentencing range from 2 to 20 years in prison], except that the offense is a felony of the first degree if an unborn child dies as a result of the offense [which carries a sentencing range of 5 to 99 years or life in prison].

Arkansas enacted its Unborn Child Protection Act last year, and its sentencing provisions are very similar to Oklahoma's:

Performing or attempting to perform an abortion is an unclassified felony with a fine not to exceed one hundred thousand dollars ($100,000) or imprisonment not to exceed ten (10) years, or both.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

My goal here is not, with Roe still formally the law of the land, to unpack fully all the criminal law and sentencing policy questions that are sure to follow in the wake of Roe's reversal and existing state interest in criminalizing abortions.  Rather, in the wake of last night's leak, I just wanted to flag that it no longer seems too early to start exploring earnestly just what state sentencing law and policy may soon look like surrounding this potential new frontier of criminalized abortions.

May 3, 2022 at 04:25 PM | Permalink


At the very least, it is going to increase the involvement of groups in prosecutor's races. I can see it becoming an issue whether candidates will pledge to file abortion-related charges or pledge to not file abortion-related charges.

Significantly, most abortion clinics are located in urban areas. And, thus primary jurisdiction would fall on prosecutors who are likely to pledge not to enforce these new statues. Whether conservative legislators will respond by giving the power to file these charges to other officials (say the state Attorney General) or pass unique venue rules to give powers to the prosecutors in the counties where the women seeking abortions reside will be the next battle.

Posted by: tmm | May 3, 2022 5:47:58 PM

No clue. I wish other Republicans would be smart enough to leave this one alone. I don't much like abortions, but inventing consensual crimes is pretty much always a dumb idea.

Posted by: William C Jockusch | May 3, 2022 6:36:32 PM

If the us Supreme Court is now packed with enough morons to do what the released document they deserve everything they are probably to get. When women realize with that decision they are now slaves to the state.

Posted by: rodsmith | May 3, 2022 9:24:25 PM

I think I have a pretty good feel for how conservative prosecutors think (having been one for a long time). My guess is that there will be very few criminal prosecutions in this area, and even then only in egregious cases such as partial birth abortion or selling body parts. For those prosecutions that do happen, sentencing will be decidedly on the light side.

Posted by: Bill Otis | May 3, 2022 10:59:18 PM


Instead of hysterical hyperbole (slaves to the state?) 😂, care to enlighten us as to how the draft is incorrect? Even leftist judges (RBG) and legal scholars (Tribe) have said that Roe was an embarrassing decision. Biden, when he was sentient and not just a human Roomba bumping into things, did as well.

The left hates democracy and reactions like yours prove it.

Posted by: TarlsQtr | May 3, 2022 11:01:01 PM


I see you have endorsed another leftist euphemism. “Mass incarceration” is bad enough, but “reproductive rights?”

This country hasn’t had a problem with the state refusing reproductive rights since the eugenics era, another leftist tragedy.

Posted by: TarlsQtr | May 3, 2022 11:05:20 PM

Bill: why do you predict few prosecutions and only in egregious cases in this arena? Is it because you think "conservative prosecutors" will not want to faithfully apply the law in this setting? Is it because you think "conservative prosecutors" will often conclude that full prosecution of the crimes will do more harm than good? I am not trying to troll here, just trying to understand the basis for your prediction that non/less-enforcement of this criminal prohibition may be fairly common (and also whether you think non/less-enforcement by prosecutors would be good policy).

Tarls: I used the “reproductive rights” as a short-hand for SCOTUS rulings like Griswold and Eisenstadt and Roe (all of which are still established constitutional law as of this writing). Is there a term that you think describes these rulings and this area of law better? I asked you for a better term for "mass incarceration" and I do not think you responded (sorry if I missed a response). I am sincerely eager in most settings to utilize terminology that efficiently conveys meaning without being needlessly provocative. If you can suggest better terms to convey the meaning I intend without causing you offense or concern, I would like to hear those terms. I share your sense that words/terminology can matter and often matter a lot, so am eager to hear what words you would rather hear.

Posted by: Doug B. | May 4, 2022 9:41:21 AM

Doug --

I predict relatively few prosecutions for "abortion offenses" for roughly the same reason we see relatively few prosecutions for pot possession offenses. As you have often and correctly pointed out, prosecutors don't have infinite resources, so there has to be prioritizing. The priority tends to be toward those offenses that a big majority of the electorate views as the most serious -- violent offenses and dealing hard drugs, for example. (Is there some other priority you think is better? Or do you think prosecutors should have infinite resources so no prioritizing is needed?).

Public opinion remains split on abortion. There is nothing like the consensus about that that there is about dealing in meth or heroin or fentanyl. Hence my guess is that prosecutors will, in this area as routinely in others, focus on the most egregious offenses, which will involve, e.g., gender-selection abortions, partial birth abortion, and selling body parts.

Of course a prediction is just a prediction. This will be a new era. Since the life of the law is experience not logic, no one can do much more than guess at this point.

Posted by: Bill Otis | May 4, 2022 10:04:02 AM

@Bill Otis: I do think there are some jurisdictions, perhaps many, where there is a strong consensus that abortion should be illegal. Conservative politicians have been running on that theory FOR YEARS. It's not as if anyone was surprised by their recent legislative victories in the states: this is precisely what those politicians promised to do. Pot possession is different: conservatives have not been running on that issue in recent memory.

So, where abortions are performed in jurisdictions where they are illegal, I do expect the state to go after them vigorously. Now, there might be very few prosecutions simply because doctors choose not to perform them. Even under the current legal regime, you do not see a lot of doctors prosecuted (e.g., for types of abortions that are already prohibited). Whatever the doctors think of the law, they tend to obey it.

Posted by: Marc Shepherd | May 4, 2022 10:51:25 AM

Sorry Bill on the comparison to pot possession, you are thinking primarily at the federal level.

At the state level, there are a lot of prosecutions for pot possession in the states in which it is illegal. In my state, in the last complete fiscal year, prosecutors charged around 6,000 misdemeanor cases for pot possession (about 5% of total cases charged for the year)

Having had a night to think about the real issue, whether or not any prosecutor files charges will not be what matters. What matters is the fact that it is illegal. In those states which outlaw abortion (either absolutely or by requiring it to be before most women would know that they are pregnant), the simple fact of the law will force most clinics to shut down. Any abortions that will be done will be done clandestinely by individual doctors ignoring the law. I am not sure that there will be a lot of pressure for law enforcement to spend time going after these secret abortions but, in some jurisdictions, you might have somebody decide that is a good way to score political points at the expense of other law enforcement priorities.

Posted by: tmm | May 4, 2022 11:33:11 AM

Marc Shepherd --

I mostly agree. Abortion will remain legal in such a large number of jurisdictions that women who want them will just go to one of those jurisdictions, leaving precious little to prosecute even where there's an appetite for it.

But there is one other point I want to make. Almost all the criticism I've seen of the Alito draft opinion has been consequentialist, i.e., "if this becomes law, all manner of bad things will happen as a consequence." But that is in my view a very misguided way to approach how to decide cases. The political branches may properly look to consequentialist arguments, but not the courts, whose sole job it is to tell us what the law is, not whether it's good or bad policy.

The correct way to criticize Alito's opinion is to point out how it ignores the Constitution's textual approval of abortion. The reason I haven't seen virtually any such criticism is, of course, that the Constitution says zip about abortion, as Alito (and many others, including liberal legal scholars) have pointed out.

Posted by: Bill Otis | May 4, 2022 11:39:30 AM

@Bill: Of course, there are stare decisis and reliance arguments for adhering to precedent, even where the individual justices might not have joined the decision originally. In the draft, Alito spills a good deal of ink on these arguments, since he realizes that judges often adhere to precedents they disagree with.

I believe there was a case where Rehnquist voted to preserve Miranda on reliance grounds, even though he had previously been sharply critical of the decision.

I know that Roberts is a grave disappointment to some conservatives, but nobody would call him a liberal. He has been voting to uphold Roe/Casey as precedents, although it is abundantly clear he never would joined Blackmun’s majority had he been on the Court at the time. The Casey trio probably would not have joined it either (certainly not Kennedy or O’Connor).

Posted by: Marc Shepherd | May 4, 2022 12:25:03 PM


This was my response to “mass incarceration.”:

“The issue with the “mass incarceration” formulation is that it describes the result. It clearly implies that we are incarcerating a bunch of people unjustly.

We have a “mass crime” problem which results in incarceration.”

“Reproductive rights” is similarly odious and not even factually correct. Reproduction has already occurred by the time there is an abortion. To not use the very word you are seeking to keep codified in favor of using the friendlier sounding “reproduction,” something not even relevant at that point, is downright Orwellian.

Posted by: TarlsQtr | May 4, 2022 12:36:26 PM

Marc Shepherd,

Isn’t adherence to the law more important than adherence to precedent?

If not overturned by the 14th Amendment, yours seems an excellent argument for keeping Dred Scott. If that is Roberts’ rationale, he is the disappointment conservatives believe, and more.

Posted by: TarlsQtr | May 4, 2022 12:48:14 PM

Marc Shepherd --

Over the years, I've found that precedent becomes really important when it supports one's favored policy positions, and otherwise, not so much. For a pretty smart review of what judges should make of precedent, take a look at this by Prof. Richard Re of UVA law school: https://www.law.virginia.edu/scholarship/publication/richard-m-re/1094821.

Oddly, I haven't heard the Left saying much about the precedential importance of Citizens United or Hobby Lobby.

P.S. My info is that Rehnquist in Dickerson found that he had five votes against him, so joined the majority to assign the opinion to himself and try to limit the damage.

Posted by: Bill Otis | May 4, 2022 12:51:11 PM


“Legalized abortion” seems a much more accurate phrase without being provocative or using euphemisms. I prefer, “the murder of children by a death cult”, but I assume you wouldn’t want to use that. 😉

Posted by: TarlsQtr | May 4, 2022 12:52:51 PM

Thanks, Tarls, but you have failed to suggest any better terms to convey the meaning I intend without causing you offense or concern.

The term "mass incarceration" conveys the reality that the US now has a historically large and globally distinctive level of incarceration. Based on various rankings and metrics, the US crime rate is neither historically high nor globally distinctive. We do NOT have a "mass" crime problem in the way I am using the term to describe historically and globally distinctive levels. (Moreover, as you know, most crime does not result in incarceration.) I do not want to dicker with your claim that we have a "mass" crime problem, I just want to accurately describe the fact that the US now has a historically large and globally distinctive level of incarceration. I think "mass incarceration" does so reasonably well, whereas "mass crime problem which results in incarceration" seems to me inaccurate and confusing across various dimensions.

The constitutional right to access contraception (Griswold and Eisenstadt) and to terminate a pregnancy (Roe and Casey) strike me as fairly described together as "reproductive rights." But if you think it more helpful to say the right to access contraception and the right to abortion (or the right to cause the death of an unborn child), okay. Still, the phrase "reproductive rights" does not seem "Orwellian" unless and until you can suggest a better short-hand phrase for describing these rights. ("Legalized abortion" only picks up one of these rights; moreover a key point is that these matters are currently constitutionally protected rights, not just what has been "legalized.")

I welcome your service as language police, Tarls, but I will keep requesting that you suggest better wording and not just complain without constructive suggestions. You struck out with your first inaccurate and wordy "mass crime problem which results in incarceration." Perhaps you can try again?

Posted by: Doug B. | May 4, 2022 1:26:40 PM

It is interesting that this is to some extent a religious issue. In the past, main line protestants never believed that life begins at the moment of conception and the question of abortion and contraception should be seen as a personal religious decision and a constitutional right.

Presently, the religious composition of the Supreme Court is 7 justices practice Catholicism and two practice Judaism. There is not much diversity on the court. All justices except one graduated from Harvard or Yale Law School schools.

Posted by: beth curtis | May 4, 2022 2:30:42 PM

Huh? This post has nothing to do with Griswold. Roe and the current draft decision have nothing to do with the right to contraception, Obergfell, or anything else. Alito says this at least three times. Have you read it or are you going by the baying from the left? It’s about the ability to procure an abortion legally. That’s it. It’s the opposite of “reproduction.” And “legalized” does fit. It was Roe which created the “constitutionally protected right,” thus it was “legalized.”

As an attorney and legal scholar, your support of a phrasing which is not even accurately describing the issue is shocking. Perhaps I am naive. Your entire profession is based on being slick with word usage.

Your weak argument in support of using “mass incarceration” is transparent as well. You know very well the intent is to inflame. Our prisons are not full of innocent people who we decided to imprison on a whim. They are incarcerated as a direct result of their actions. If you want to use “mass,” define it. Not with lawyerspeak, but with a number. What percentage is no longer mass incarceration?

For the record, my offense comes from the great hypocrisy you and others like you show. Words have meanings. You are perfectly happy to change these meanings but have the nerve to call me the language police when I call you out? Abortion is not “healthcare.” It is not reproduction and there is no right to get one. SCOTUS deciding that slaves did not have rights made it no less true that they did. Likewise, a terrible decision in Roe (and then Casey) only creates a right in practice, not reality.

Just curious. Do you believe Roe was rightly decided?

Posted by: TarlsQtr | May 4, 2022 2:51:49 PM

Beth Curtis,

Your interpretation of Protestant dogma couldn’t be further from the truth. They did not start capitulating until the 1970’s.

Posted by: TarlsQtr | May 4, 2022 3:00:00 PM

tmm --

"Sorry Bill on the comparison to pot possession, you are thinking primarily at the federal level."

Guilty as charged, Your Honor! In mitigation, let me say that my only experience is with the feds.

I think there will be few prosecutions, not because abortions will be hidden in dark alleys, but because they'll be done in clinics in the hundreds of jurisdictions that will continue to allow them.

Posted by: Bill Otis | May 4, 2022 3:38:36 PM

TarlsQtr --

As you know, abortion is not an issue I've litigated, so my knowledge of it is limited. But I ran across a compendium of quotations from pro-abortion scholars from Ruth Bader Ginsburg to Lawrence Tribe on down who are at best skeptical that Roe has any real constitutional underpinning:

**Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000:
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

**Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court:
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
North Carolina Law Review, 1985

**Edward Lazarus — Former clerk to Harry Blackmun:
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.”

“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002
“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.

**William Saletan — Slate columnist who left the GOP 2004 because it was too pro-life:
“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”
“Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.

**John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School:
Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).

**Richard Cohen — Washington Post:
“[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”
“As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.
“If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe, with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.
Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.”
“Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”
“Support Choice, Not Roe” Washington Post, October 19, 2005.

**Alan Dershowitz — Harvard Law School:
Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes…. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)…. [C]lear governing constitutional principles … are not present in either case.”
Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194.

**Cass Sunstein — University of Chicago and a Democratic adviser on judicial nominations:
“In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”
“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).
“What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached.”
Quoted in: Brian McGuire, “Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005

**Jeffrey Rosen — Legal Affairs Editor, The New Republic:
“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”
“Worst Choice” The New Republic February 24, 2003

**Michael Kinsley:
“Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.
“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”
“Bad Choice” The New Republic, June 13, 1994.
“Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision….
“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”
“The Right’s Kind of Activism,” Washington Post, November 14, 2004.

**Kermit Roosevelt — University of Pennsylvania Law School:
“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.
“This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment.
“By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”
“Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003.

**Archibald Cox — JFK's Solicitor General, Harvard Law School:
“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”
The Role of the Supreme Court in American Government, pp. 113-114 (1976)

Posted by: Bill Otis | May 4, 2022 4:12:10 PM


One more point. You claim that our current incarceration rate is “historically large.” It’s actually the lowest it has been since 1995. You are either ignorant of this fact or intentionally ignoring it to justify your ideological use of “mass incarceration.”

Posted by: TarlsQtr | May 4, 2022 4:22:05 PM

When I am referencing abortion, Tarls, I use the term abortion. It is in the title of the post, and it is used by me eight other times in body of the post. When I was seeking to reference the Court's broader jurisprudence (of which I am not an expert), I used the term "reproductive rights" (in part because I am aware of a casebook using that terminology to describe this broader area of jurisprudence). Though this post uses the leaked draft opinion as a jumping off point (and uses abortion in its title), my first sentence was about my lack of expertise in the broader jurisprudence -- the jurisprudence of "reproductive rights." I think this is an accurate way of describing the constitutional right to access contraception (Griswold and Eisenstadt) and to terminate a pregnancy (Roe and Casey). Again, if you have another better terminology, I am keen to hear it. (And, because a lot can be legalized without creating a right -- let alone a constitutional right -- I do not think even "legalized abortion" accurately describes the current constitutional right to abortion.)

That you misunderstood my one reference to "reproductive rights" is unfortunate, but given my repeated use of the term abortion elsewhere, there should have been no basis for you to assume the worst. But some people like to be shocked and assume the worst, and I am I not going to scold you for doing so. But I am going to call you the language police when you keep wanting to charge people for misusing words apparently without caring to understand the intended meaning for the use of those words -- and without being able to suggest sounder alternatives. You can, of course, use words however you want and I am happy to provide you with this forum for criticize me and others for how they use various words. But unless and until you provide what seems to me a better alternative, I will keep using the words I have chosen and keep hoping you will make at least some effort to understand their meaning.

As for Roe, I think the original opinion is a mess, and I am generally not a fan of so-called "substantive due process" (speaking of words having garbled meaning). I also think the Supreme Court has completely failed to give meaning to the Ninth Amendment and other constitutional provisions that could potentially provide a sounder foundation for recognizing the constitutional right of a pregnant woman to terminate a pregnancy under certain circumstances.

Back at you with curiosity: Do you think a fertilized egg at the moment of conception --- should we call it an unborn baby? --- is at that moment a "legal person" who is subject to all the constitutional and other legal protections of born persons?

Posted by: Doug B. | May 4, 2022 4:23:58 PM

And Tarls, you are right that incarceration rates are down from their peak in 2008 (which I have reported on repeatedly in this space), but the level we had in 1995 was then the highest in US history, and that level is still 3-4x greater than before 1970 AND 3-4x greater than most nations around the globe. In both historical and global terms, our incarceration levels are still "mass" though not as massive as they were for the Bush/Obama years. We often use the term "mass" to describe shooting of three or more people even though there are many shooting that involve double as many.

And, of course, the fact that crime is up over the last few years and yet incarceration is down a bit only serves to further demonstrate the inaccuracy of the clumsy phrase "mass crime problem which results in incarceration." If so called "mass crime" results in more incarceration, we should have more incarceration in 2022 than in 2019. But actually, we have less -- though it is still "mass" when viewed in historical and global perspective.

Again, if you have a better accurate term to describe historically and globally high incarceration levels in the US, I am eager to employ it. But, until you provide one, I will stick will "mass incarceration" to describe the US state of affairs. I have been encouraged by trends that have made our incarceration rates a bit less "mass" --- but I do not think that label is misleading until we get to Reagan-era levels of incarceration.

Posted by: Doug B. | May 4, 2022 4:37:04 PM

If abortion is the murder of an innocent life, as its opponents repeatedly claim, why should not anyone who solicits, aids and abets, or otherwises assists someone to get an abotion (including of course the would be mother) not be charged with, convicted of, and sentenced to at least life in prison??

Posted by: anon1 | May 4, 2022 4:52:35 PM

Doug (cc: TarlsQtr) --

How about not using a shorthand term ("mass incarceration") at all and just spend five more seconds typing, "a country that has 0.5% of its population incarcerated"?

Posted by: Bill Otis | May 4, 2022 6:12:54 PM

Thanks for the list, Bill. Also, putting a number on the percentage of people incarcerated is a fine, maybe even perfect, solution.

Posted by: TarlsQtr | May 4, 2022 6:41:02 PM

Which is, Bill, roughly 4 times our pre 1980 norms (about 0.12%) and 3 times the current global norms (about 0.16%). Feel free to put as much detail in the comments as you wish for those looking for a more detailed accounting. For shorthand, I will stick with “mass” --- and you are also welcome explain further how so few Americans are really impacted by mass shootings or mass murderers.

Posted by: Doug B. | May 4, 2022 6:44:26 PM


Re:Mass incarceration

See Bill’s solution.

He did something you refused to do, quantify it. Instead, you continue with vague notions, allowing you to never define it. That’s the point, to never be pinned down. But, let’s consider “Reagan era.” There was a crime epidemic. They changed the laws to address that fact with support from both sides of the aisle. The result was higher incarceration. In other words, crime drove incarceration. It was a crime problem.

And saying that you also called it abortion doesn’t change the game. You included abortion under the umbrella of “reproductive rights,” and it does not belong there. That a textbook does it is not justification. You mention a lot can be legalized without creating a right. That’s true. However, it is also true that legalizing something can create a right. Is that not what happened with Roe? You are simultaneously claiming one phrase which is not factually correct is proper, while using a factually correct phrase is wrong. It’s no wonder everyone hates lawyers.

BTW, I cannot even conceive of the imagination it must take to see any part of the constitution as a justification for the right to an abortion. Such an imagination would make even Walt Disney proud.

Yes, it is a person at conception (a biological fact) and should have the same legal rights as someone born. Why? Because there is no where else to draw the line and be consistent with it.

Posted by: TarlsQtr | May 4, 2022 8:09:54 PM


Because the law is full of mitigating factors that soften punishment for some crimes with the same name. We often do not treat a woman as harshly for killing her husband if she had been beaten to a pulp for ten years by the guy. Nor is a woman getting an abortion the same as hiring a hit man because she wants the husband’s money.

We have compassion for the former but not the latter.

I’m all in for throwing the book at abortionists though.

Posted by: TarlsQtr | May 4, 2022 8:16:58 PM

So, Tarls, is the Mississippi law at issue in Dobbs or any others prohibiting abortion ONLY after a certain number of weeks of pregnancy a violation of the Equal Protection Clause of the 14th Amendment? In other words, under your view, are states legally obligated to have all its laws that protect persons/children apply from the moment of conception? Or are you merely saying that would be the logical legal line but not the constitutionally-required legal line?

As for quantification of incarceration, we can discuss any or all of the numbers here for global and historical context (and there is plenty to discuss):

The data show that US incarceration remains roughly 4 times our pre-1980 norms and 3 times the current global norms. That seems to me to be fairly described as "mass" when viewed in historical and global perspective. You may think that mass incarceration in the US is wholly justified because of our myriad crime problems, but that does not mean it is not reasonably described as "mass" when viewed in historical and global perspective.

Again, you and Bill are welcome to use whatever terms you like to describe US incarceration data or Supreme Court jurisprudence, and I will continue to use terms that I think communicate meaning fairly. Just like I learn from reading how Bill choose his terms when writing at C&C, I could surely learn something from reading how you choose terms on your own blog or website. But, unless and until you can provide what seems to me better alternatives (which you still have not), I will keep using the terms I have chosen that seem reasonable to me. If you want to keep spending time here acting like Deputy Barney Fife of the language police, go for it. Perhaps I am just the linguistic Otis in this part of Mayberry.

Posted by: Doug B. | May 4, 2022 9:43:34 PM

Yes, abortion is a violation of the 14th Amendment from conception. I know you like to play fast and loose with definitions, but we do know what is a person (or woman) through biology. It’s incontrovertible, a no brainer. Yet you want to make abortion a right via made up rationale based on the 9A or some other ridiculous interpretation? Even a layman such as myself can see I have the better end of the argument.

Barney Fife? 😂 Whatever. The legal field is based on being specific, intellectually honest, and accurate with wording, and you insist on wording that is none of those things. “Mass” is a loaded word designed as hyperbole to give a negative image of our incarceration rates. You use it because you are against our current rates, so don’t pretend it is a neutral term. In fact, I did give examples which were more accurate and less charged. You do not want to use them because they don’t fit your intent, nothing more.

Yet, AGAIN, define “mass” using numbers, not lawyerspeak. At what point is it no longer mass incarceration? Is abortion about the right to reproduce or is it something one does after reproducing?

What phrases we use to describe them is debatable. That what you are currently using is imprecise and even factually incorrect is not.

Posted by: TarlsQtr | May 4, 2022 10:27:40 PM

Tarls, people convicted of felonies are clearly biological persons, and yet courts have decided this class of persons are excluded from having Second Amendment rights. Biological status does not define legal rights, and to my knowledge no court has ever embraced your constitutional interpretation of full legal personhood for fertilized eggs for all purposes. Notably, the draft Alito opinion does not adopt this view, and SCOTUS seemingly is on a path to "return the issue of abortion to the people’s elected representatives." If I understand your view, the Constitution does not leave abortion to the people’s elected representatives, but rather you assert the Constitution demands making all abortions (including all abortifacient contraceptives) illegal.

Is that a fair account of you view of the Constitution -- namely that it must be interpreted to mean all abortions (including all abortifacient contraceptives) are illegal? And am I right that you must believe the Alito draft is problematically wrong to interpret the Constitution to leave the issue of abortion to the people’s elected representatives?

Meanwhile, the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." I read this language as a clear textual statement that courts must be prepared to recognize some rights retained by the people beyond just those enumerated in the Constitution. Do you have another fair reading of this text? We can debate what kinds of unenumerated rights should be recognized by courts --- certain family rights and travel rights come to mind --- but this text suggests to me that the Framers did NOT want courts to deny or even disparage any and all rights other than those that are enumerated.

Meanwhile, the standard definition of mass is "a large quantity, amount, or number." Viewed against US historical norms and current world norms, the US since the 1990s has had a large quantity, amount, number of persons incarcerated. In other words, we are in an era of mass incarceration. (I guess we could say the era of "a whole lot of incarceration" or of "much more than typical amount of incarceration" or "650/100,000 compared to past levels of 120/100,000 for most of the 20th century in US" But "mass" captures the basic idea well.)

You are right that I think we have more people incarcerated than needed, but that judgment is based in part on the fact that US incarceration remains roughly 4 times our pre-1980 norms and 3 times the current global norms. Throughout most of US history and elsewhere in the world, societies have functioned well with much, much lower incarceration rates. You may think our modern era of mass incarceration ought also be called the era of just-the-right-amount of incarceration or even the not-enough-people incarcerated era or we-are-not-incarcerating-enough-abortion-providers or some other set of adjectives that you want to attach to your description of US incarceration pattern. But, unless and until US incarceration rates get much closer to past historical and/or global norms --- somewhere in the neighborhood of 300/100,000, which would still be twice the global norm --- I will still think it accurate to talk of US mass incarceration. (Thanks to various unexpected realities, we are getting closer to that level than I would have expected even 5 years ago, and so maybe we will not in the future have "a large quantity, amount, or number" of persons behind bars in the US.)

Abortion rights are about the right to terminate a pregnancy so as to prevent a live birth, the right to use contraception is about the right to try to prevent reproduction (though some contraception prevents a fertilized egg from implantation, so I guess you would say that is a post-reproduction form of contraception). I still find the phrase "reproductive rights" to reasonably describe the collective Supreme Court jurisprudence in this arena. But I understand you want abortion to be described as a right that that comes after the event of reproduction. It is a fair point, but I remain unsure of how you would describe the entire bundle of contraception/abortion rights that the Supreme Court had recognized over the last 60 years. The term I used to do so, "reproductive rights," is a common shorthand and is widely used, and I am still yet to hear what term you suggest as an alternative way to describe this jurisprudence.

Posted by: Doug B. | May 5, 2022 12:58:01 AM

Doug --

Let's say that, 40 years ago, Country X incarcerated 1 out of every 25,000 people. Today, Country X incarcerates 10 out of 25,000 people -- a tenfold increase, much more than has happened in the United States. Let's also say that Countries A, B, C, and D incarcerate only 3 out of every 25,000 people, or less than a third of Country X.

Question: Is County X now fairly described as engaged in "mass incarceration" because it so substantially increased its incarceration rate, which is now up to 0.04%?

Answer: No, indeed it would be preposterous to say that a country with such a small degree of incarceration is engaged in "mass incarceration." To any even remotely reasonable way of thinking, 0.04% is not "mass" anything. It's just ridiculous.

Moral of story: You have to look at the ACTUAL NUMBERS, not be fixated on what you used to do decades ago or on what other countries with different economies, demographics, and legal histories do.

Application to present dispute: Our present rate of 0.5% is higher than Country X, but is simply not anything a reasonable person could describe as "mass." When 99.5% of your population is out on the street, you may have many things, but "mass" imprisonment is not one of them.

In this thread, you asked what different term might be used. But you've instantly rejected every suggestion, including the suggestion that we use the actual percentage rather than a characterization of the actual percentage.

And what does that tell us? That you were never actually interested in the question you asked, and instead were determined from the get-go to cheerlead for the loaded Term Dictated By The Soros Party Line.

But when the Party Line tells you to muzzle to real numbers In Favor of Its Characterization, there's a lesson there. The lesson is not about America's incarceration. It's about the integrity of The Party Line.

Posted by: Bill Otis | May 5, 2022 7:47:28 AM

Bill, would you think it proper to describe Country X in your hypo as having experienced a massive modern increase in incarceration? Do you think it is unreasonable to describe a person who kills a dozen people with a gun to be a mass shooter and a mass murderer (you have never complained about my use of the term mass in that setting)?

Notably, any number of folks on the right have used the term "mass incarceration," and one can find the term in titles and/or commentary from folks at Americans for Prosperity, Cato, Heritage and R Street (among many others). Prez Trump's highest profile (non-political) clemency recipient, Alice Marie Johnson, uses this term regularly. I suppose everyone was invited to the party and was told they had to use what you call the "loaded Term Dictated By The Soros Party Line."

Upon reflection, your disaffinity for term mass incarceration seems comparable to some folks who complain about the term "war on drugs." Some say we should actually call it a war on people or a war on drug users, others say it is not really a war (and others rightly note the phrase was never actually used by Prez Nixon or Reagan). But whatever word-smithing one cares to do, the phrase "war on drugs" still serves as a useful and fair shorthand reference for various aspects of our criminal justice policies and practices over the past 50 years. Similarly, the phrase "mass incarceration" serves as a useful and fair shorthand reference for the massive increase in incarceration in the US since the 1980s.

I have noted in various posts that mass incarceration has gotten less massive over the last decade, and I hope we continue to reduce our incarceration rates wisely. I surmise you think our incarceration rates are now too low, and you are welcome to use this forum to echo Senator Cotton's assertion that we have an under-incarceration problem. But it is now common parlance to describe the massive modern increase in US incarceration rates as mass incarceration, and I plan to keep using that term unless and until the US rate goes down to a level that it is no longer an historical and global outlier.

Now, to try to return to the topic of this post, Bill, do you share what seems to be Tarls reading of the US Constitution -- namely that it must be interpreted to mean all abortions (including all abortifacient contraceptives) are illegal and that the Alito draft opinion is problematically wrong to interpret the Constitution to leave the issue of abortion to the people’s elected representatives?

Posted by: Doug B | May 5, 2022 9:08:14 AM

Doug --

I will testify under oath that a country where 99.5% of the people are not in jail and are walking the streets does not have "mass incarceration." Then all the pro-criminal groups you note (R Street, Cato, Right on Crime, etc.) can prosecute me for perjury (if they can momentarily overcome their hate for prosecutors). Who do you think will win that case?

"Now, to try to return to the topic of this post, Bill, do you share what seems to be Tarls reading of the US Constitution -- namely that it must be interpreted to mean all abortions (including all abortifacient contraceptives) are illegal and that the Alito draft opinion is problematically wrong to interpret the Constitution to leave the issue of abortion to the people’s elected representatives?"

The phrase "seems to be" is doing a lot of (questionable) work there, but I'll be happy to give my view of this once again: The Constitution does not mention abortion at all, and therefore, contrary to Roe, does require that it be permitted -- or, contrary to some others out there, that it be forbidden. As Nino Scalia once famously observed, the Constitution says what it says and doesn't say what it doesn't say. It doesn't say beans about abortion, end of story. It's up to democratic not judicial processes.

Well, not quite the end. For decades, the Left has been using the courts to manufacture, as "constitutional" rights or requirements, things that the Constitution simply does not address. Miranda is the most flagrant example of this in criminal law. The idea that a statement must categorically be seen as "compelled" in violation of the Fifth Amendment if it is not preceded by warnings the Court simply made up is, not only unjustified by any sane reading of the Constitution, but preposterous as a factual matter.

The reason the Left settled upon the strategy of having the judicial branch manufacture this right and that right for criminal defendants is that it knew it would fail if it tried going to Congress (and its failures are legion, as you occasionally note). In other words, the Left, which constantly crows about its love of democracy, went the least democratic (but most effective) route it could find, i.e., importuning UNELECTED federal judges to do what Congress wouldn't.

Some love of democracy, that.

Posted by: Bill Otis | May 5, 2022 10:46:06 AM

Bill, I have never asserted it was a lie for you to say we do not have "mass incarceration" in the US, just like I would not say it is a lie when folks dicker over the term "war on drugs." But I do assert that it is useful and fair shorthand reference for the massive increase in incarceration in the US since the 1980s. I did just recently notice that you described Obama's clemency grants in 2016 to 562 inmates (out of about 185,000 federal inmates) as a "mass jailbreak": http://www.crimeandconsequences.com/crimblog/2016/08/the-jailbreak-accelerates.html. Strange how about 0.3% was once a "mass" matter for you. Ah well.

Though I am eager for Tarls' account here, the Constitution does require that states not deny "to any person within its jurisdiction the equal protection of the laws." I presume you would think the Constitution would not allow a state to outlaw murder, but then provide that the prohibition on murder applies only to killing of white persons and not to the killing of black persons. Similarly, Tarls may be saying (and others have argued to SCOTUS) that the Constitution does not allow a state to outlaw only the killing of born persons, it must also outlaw the killing of unborn persons to provide the constitutionally required equal protection.

I may have the specifics of this argument wrong, but that is where I think the assertion that a fertilizied egg is a "person" for constitutional purposes takes us. It sound like you do not think the unborn qualify as a "person" for the constitution, so that it sounds like you think it fully constitutional for a state to authorize (and even fund) the killing of the unborn. That is why I am asking Tarls in light of his legal personhood claims, as this seem to be the key next constitutional question if/when Roe gets overruled.

Posted by: Doug B. | May 5, 2022 12:12:22 PM

The term “reproductive rights” has long included abortion, to the point where just about everyone understands it that way. I can’t think of another good shorthand for it.

In contrast, the term “mass incarceration” is not in such wide circulation. I agree with Bill that it tends to suggest much more incarceration than actually exists, even if you think there is far too much of it. I would prefer “over-incarceration,” which gets to the proponents’ real point in the same number of letters without abusing the word “mass”.

Posted by: Marc Shepherd | May 5, 2022 12:46:51 PM


I believe Alito’s draft is not problematically wrong at all. It is spot on. The issue of equal protection was not brought up in the Dobbs case, to my knowledge. Alito has to decide on the case in front of him, not one he may or may not want to decide on.

And, yes, a fair reading of the constitution does dictate that all abortion should be legal. By definition, a fetus is a human life.

Convicted persons have lost their constitutional rights, but were born with them. They had due process, a fetus does not get the same. The comparison just does not fit. We are in such a decaying society that people are fighting to give rivers and lakes constitutional rights and protections, but not a fetus? Even you have to see the irony and idiocy of that.

Your ninth amendment argument cuts both ways. Even if you believe that a fetus is a human life that does not deserve protection, it is just as legitimate for me to claim then that the 9A gives the fetus a right not enumerated. Thus, I believe, you are required to provide much more than a vague reference to the 9A to make it applicable. You may have an argument, but it is an incredibly weak one. I would further point out that a right (the mother’s supposed right) should not infringe on someone else’s (baby) legitimate right.

Slightly off topic, but one I find telling. Unless I missed it, I have not seen a single word from you on one of the most scandalous acts in the legal field in a very long time, the leak of the draft. Nor have I seen one lefty in the media, politics, legal academia, etc., express any degree of outrage towards it. Should I be surprised that you keep such company?

Posted by: TarlsQtr | May 5, 2022 1:58:24 PM

*All abortion should be “illegal.” You need an edit feature! :-)

Posted by: TarlsQtr | May 5, 2022 2:00:10 PM

Marc Shepherd,

Abortion has also been referred to as “healthcare” for a very long time. I do not find the argument compelling.

Posted by: TarlsQtr | May 5, 2022 2:03:21 PM

@TarlsQtr: While you personally might not like to refer to abortion as healthcare and abortion law as reproductive rights, we don’t get to choose for ourselves what words mean. You can of course argue for whatever meanings you want, but this blog isn’t going to change how people talk everywhere else.

"Slightly off topic, but one I find telling. Unless I missed it, I have not seen a single word from you on one of the most scandalous acts in the legal field in a very long time, the leak of the draft. Nor have I seen one lefty in the media, politics, legal academia, etc., express any degree of outrage towards it."

This is a sentencing blog. While the comments sometimes veer off-topic, Doug does a pretty good job of keeping his posts on the subject matter. Oh, and I have seen liberals in the media who are outraged about the leak, so if you cannot find any, then you are not looking hard enough.

Posted by: Marc Shepherd | May 5, 2022 2:23:38 PM

Bill, as I thought was his view, Tarls states with his edit that a "fair reading of the constitution does dictate that all abortion should be illegal." I would like to hear if you agree that that is a "fair reading" of the Constitution, though I would think Tarls means "must be homicide" and not just "should be illegal."

Tarls, convicted persons, have generally NOT "lost their constitutional rights," even when they are sentenced to death. I have never heard anyone claim all (or even any) convicted persons can be completely barred from praying (1st A) or can be brutally tortured (8th A) or subject to unique treatment due only to their skin color (14th A). Despite no clear textual basis in the Constitution (except in the 13th amendment), courts have often decided convicted persons have diminished rights, especially when that is done as part of the due formal punishment process. But all convicted persons still have lots of rights, even though courts have said it is sometimes constitutional to kill them as punishment.

I understand you think a fertilized egg ought to be given more constitutional rights than convicted persons (or rivers and trees). I am not aware of any court ruling that has ever so held a fertilized egg (or fetus) is a constitutional person in the history of our Republic. If this is a "fair reading" of the Constitution, can you cite any jurists who have given the Constitution such a reading? Maybe there are some --- recall, reproductive rights are not my area of specialty --- and I would be eager to see rulings to that effect if there are any.

Because I am not an expert on reproductive rights, I am not sure if the 9th A is the best foundation on which to try to ground a right to abortion. I am sure that you now seem to acknowledge that the 9th A can provide a textual foundation for recognizing that "people" can have unenumerated rights courts should protect. If a fertilized egg is not among "the people" --- and that seems to be how Bill Otis and jurists through all of US history have interpreted that constitutional term --- then the 9th A can provide constitutional rights to a mother that do not also extend to her fetus. Constitutional personhood is key, as a whole lot of constitutional provision reference "persons" or "the people." If a fertilized egg is covered, constitutional rights for everyone look a whole lot different than if it is held (as it has been to date) that it is not considered constitutionally a "person" or part of "the people."

As for the leak, I am hoping we will find out more about it. Some are speculating based on a WSJ editorial that it was a conservative leak; others are speculating that it was a liberal leak. I try to mostly stick to sentencing and corrections issues here, and it is not even clear the leak is a crime, though it is clearly a breach of SCOTUS protocol. I never worked for SCOTUS, so I do not know much about that protocol or how it may have been broken. I am disinclined to talk about what I do not know, and I mostly work alone, so I do not keep much company with anyone. I am interested in learning about the leak and its consequences, but I am not sure that fits the topics of this blog much unless/until there is a criminal prosecution or we learn more about how it impacts the functioning of the Court. I am happy to hear your speculations in the meantime.

Posted by: Doug B. | May 5, 2022 2:33:40 PM

A week before the opinion leaked, the WSJ published an editorial that predicted Justice Alito would be writing for the Court to overrule Roe and Casey. It didn’t get much notice at the time, but this was very likely a leak. The editorial gives no reasons why Alito would be writing the opinion, and it is far from the obvious guess if you don’t already know.

The leaker to the Journal was very likely a conservative. For the opinion itself, you can make a compelling argument either way for a liberal or a conservative. One oddity that has not received much attention: why leak a draft from February 10, almost three months ago? Almost anyone who had access to that draft would have had access to more recent drafts too, and the opinion has surely changed since then.

Posted by: Marc Shepherd | May 5, 2022 3:25:00 PM

CNN also has the scoop that Roberts is writing an opinion that would uphold the Mississippi law on narrower grounds while leaving Roe & Casey intact. So there very well could be multiple leakers inside the Court.

Posted by: Marc Shepherd | May 5, 2022 4:20:01 PM

@TarlsQtr, from everythig I've read, the leak could be from the right or the left, or could even be from a hacker, who leans right or left. Persuasive argument can be made for each theory.

Posted by: anon1 | May 5, 2022 9:51:02 PM

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