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June 30, 2022
Reviewing and reflecting on what criminalization of abortion could and will mean
In this recent post, I flagged some news articles discussing how the overruling of Roe allowing for the broad criminalization of abortion has brought attention to whether, when and how prosecutors might charge persons for abortion-related activities. I have now seen a few more recent pieces exploring more broadly what abortion criminalization could and will mean:
From the Atlantic, "Roe Is the New Prohibition: The pro-life movement needs to know that such culture wars result not in outright victory for one side but in reaction and compromise."
From the New York Times, "In States Banning Abortion, a Growing Rift Over Enforcement: A reluctance by some liberal district attorneys to bring criminal charges against abortion providers is already complicating the legal landscape in some states."
From the New York Times, "When Brazil Banned Abortion Pills, Women Turned to Drug Traffickers: With Roe v. Wade overturned, states banning abortion are looking to prevent the distribution of abortion medication. Brazil shows the possible consequences."
From Salon, "The right's war on abortion will become the new War on Drugs: The drug war has been a colossal, expensive disaster. Now the right can build a police state to pursue a new enemy"
From the Texas Tribune, "Abortion funds languish in legal turmoil, their leaders fearing jail time if they help Texans: It’s unclear whether Texas’ tangled web of abortion laws would make it a crime to pay for a Texan to leave the state to get an abortion, but the threat has compelled the funds to cease services."
A few prior related posts:
- What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
- Without Roe, what does sentencing law and policy look like surrounding criminalized abortions?
- Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized
- SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
- A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal
June 30, 2022 at 10:05 AM | Permalink
Comments
Nothing but speculation and fear-mongering by people who don't like the decision and who want to whip up the next Nicholas Roske.
Posted by: Bill Otis | Jun 30, 2022 10:56:34 AM
Mr. Otis, you are whistling past the graveyard.
Posted by: anon1 | Jun 30, 2022 1:05:02 PM
Bill, why you think it "speculation and fear-mongering" to expect that laws criminalizing abortion will be applied to all sorts of abortion-related activities?
Are you predicting --- or even hoping --- police and prosecutors will routinely refuse to enforce these laws? Or are you predicting than nobody in the criminalized jurisdictions will be involved in any abortion-related activities?
I do expect all sorts of unexpected developments in the application of all the new (and old) laws criminalizing abortion (as we have seen with the war on drugs). But I do not think it either speculation or fear-mongering to expect that laws criminalizing abortion will be applied to all sorts of abortion-related activities. Can you explain what you mean?
Posted by: Doug B. | Jun 30, 2022 1:29:07 PM
anon1 --
"Mr. Otis, you are whistling past the graveyard."
Well at least Justice Kavanaugh isn't in the graveyard, yet, despite the hopes of your ally Mr. Roske. Will another attempt be in the offing?
Posted by: Bill Otis | Jun 30, 2022 1:44:09 PM
Doug --
"Are you predicting --- or even hoping --- police and prosecutors will routinely refuse to enforce these laws?"
I'm predicting that, to paraphrase one of your banshee commenters, that if an 11 year-old gets pregnant by being raped by her uncle, no one anywhere will think of charging her with any crime, nor the doctor who performs the abortion. I'm also predicting that if a 30 year-old has a partial birth abortion to sell the body parts for a pretty penny, she'll get prosecuted to the hilt, as in any sane world she should be, along with her disgusting doctor.
In other words, I'm predicting that the circumstances of the case will heavily influence the prosecutor's use of discretion, which has been true ever since there have been prosecutors and has zip to do with this particular area of law.
"I do expect all sorts of unexpected developments in the application of all the new (and old) laws criminalizing abortion (as we have seen with the war on drugs)."
We all have our expectations, don't we? My own preference is to wait for specific laws and specific cases, if and when they show up. A lot of this in terrorum stuff is going to just peter out. But it makes good PR, and is certainly better for the losing side in Dobbs to hype rather than talking about the lovely Mr. Roske.
Posted by: Bill Otis | Jun 30, 2022 1:59:34 PM
Bill, 99.99% of abortion-related activities take place between the extremes you describe. To focus this inquiry, do you expect we will see prosecution in 2% of all cases? 10% 50%? 80%?
If you expect or want only the "worst" 2% of illegal abortion related activity to be prosecuted, then I can see where concerns about the criminalization of abortion may seem overstated. But if one expected even just 50% of abortion related activity to be prosecuted, it strikes me as quite reasonable to be concerned about just what criminalization in this area could me.
Posted by: Doug B. | Jun 30, 2022 2:11:38 PM
Doug --
I have no earthly clue. With murder up over the country and fentanyl being a big part of our record 100,000+ overdose deaths, those things have to be the priorities. My pure guess is that you'll see abortion-related prosecutions where normal people would regard the particular case as disgusting (organ harvesting, very late term, sex selection, Down's Syndrome, retaliation at the man, etc.) and seldom in other cases. But it's useless to guess; we'll have to see what comes in the door.
Posted by: Bill Otis | Jun 30, 2022 4:53:46 PM
I think both sides, the pro-choice and pro-life folks on these threads are avoiding focusing on the real questions.
For the pro-choice side, the reality is that very few abortion cases will be filed. The laws effect will be to stop most surgical abortions in red states from happening. No abortion clinic is going to remain open (most have already shut down) in states with a strict anti-abortion law. There may still be some secret back-room abortions from doctors who do not publicly acknowledge that they perform abortions but most will have a colorable claim of medical necessity. Most abortions in red states will be medical abortions involving the mailing of the relevant pills in brown packages that do not indicate their content.
From the pro-life side, we are already seeing Republican politicians trying to minimize what conduct is actually criminalized by the laws now in effect. The plain language of these bills (and thus their proper interpretation) go well beyond what these politicians believe that their voters will tolerate if strictly enforced so they are trying to pretend that these laws are much narrower than they really are.
Yes, I doubt that most prosecutors are going to vigorously investigate and pursue women trying to get medical abortions. The probable cause standard for getting a search warrant to intercept a package is simply too high to meet in most cases. But there will be some that will try. But the reality of prosecutions matter less than the sword hanging over people's head. The threat that a person could be prosecuted is enough.
Posted by: tmm | Jun 30, 2022 5:13:19 PM
tmm --
I recall that you were a prosecutor at one time, so this will not come as news to you. The prosecutor has the luxury of simply walking away from a possible case if it doesn't feel right. Almost no one criticizes you for "excess leniency" (unless you're Boudin or Gascon or Krasner, or a true ideological flamer in that mold). So you take the temperature around the office and measure what your senior colleagues think. This tends to bring your prosecutions toward the center of community thinking, which is where they should be.
Posted by: Bill Otis | Jun 30, 2022 5:28:07 PM
tmm's point that the threat of prosecution matters -- a lot -- is why it is not "useless to guess" about prosecutorial policies and plans. Just as I think it valuable for voters and other community members to hear about prosecutorial policies and plans in prosecuting the drug war and elsewhere, it is important for voters and other community members to hear about prosecutorial policies and plans in prosecuting abortion-related activities. This is not about "fear mongering" but also trying to come to terms a post-Roe world in which abortion is criminalized (though, notably, not actually treated like murder).
Posted by: Doug B. | Jun 30, 2022 5:39:10 PM
Yes, Bill. But criminal law serves two functions -- punishing those who commit crimes and deterring people from committing crimes. With the new abortion statutes, the big impact is not who gets prosecuted or how often but the deterrent effect. How many medical professionals are going to be willing to risk their licenses and face significant prison time even if the risk of prosecution is slim?
I live in one of those states with a pretty strict anti-abortion law, and I can tell you that the local hospitals are desperately trying to figure out what is covered by the new laws because they don't want even the slightest risk of criminal charges even if I doubt that any of the offices, including my own, with the authority to file charges are likely to pursue that many cases under the law.
Posted by: tmm | Jun 30, 2022 5:41:22 PM
Doug and tmm --
It's actually easy to avoid problems with the law, as all three of us have done our whole lives: Don't get close to the line. If something is even questionable, stand down. And there's little to no health risk to this commonsense strategy. Abortion will remain very widely legally available, through pills and travel to the two or three dozen permissive states. So if I'm the general counsel of a hospital, I'm going to have a memo out tomorrow saying A, B, and C are still OK; X,Y, and Z are out; L,M, and N are dicey, so don't do them and refer the patient out of state until we have some cases and I'll be able to tell you more.
What people are forgetting is that mid- to late-term abortions have been illegal for years under the pre-Dobbs regime. It's not like there were no prohibitions. There were lots of prohibitions. People adapted to them then and they will adapt to more numerous prohibitions now.
Learning new law is a task but not a crisis. We all do it and have been doing it for a very long time.
Posted by: Bill Otis | Jun 30, 2022 8:46:23 PM
Bill, in Ohio it is now a felony for a person to "knowingly and purposefully perform or induce an abortion on a pregnant woman before determining ... whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat." Can you advise me as to whether I can lawfully help a woman in Ohio who thinks she might be pregnant obtain abortion pills? Could I lawfully have a supply of these pills in my office to make them available to any of my students who would like to have them?
Posted by: Doug B. | Jun 30, 2022 9:16:49 PM
Doug --
"Bill, in Ohio it is now a felony for a person to "knowingly and purposefully perform or induce an abortion on a pregnant woman before determining ... whether the unborn human individual the pregnant woman is carrying has a detectable heartbeat." Can you advise me as to whether I can lawfully help a woman in Ohio who thinks she might be pregnant obtain abortion pills?"
No I couldn't advise you, since I'm not licensed to practice law in Ohio. If I were licensed, I'd tell you to talk to someone with experience in that area, just as if you wanted to write a will or set up a trust, I'd tell you to talk to a specialist, not to me. But if hypothetically I were to advise you, I'd tell you to tell the woman that what she needs to do is find out if the fetus has a detectable heartbeat. That is ALL the law you quote requires. So far as I can see in the part you provide, it does not criminalize the woman or someone helping her obtaining an abortion. It only criminalizes that behavior if she has not first determined whether there is a heartbeat.
"Could I lawfully have a supply of these pills in my office to make them available to any of my students who would like to have them?"
I wouldn't if I were you, since you could be liable to the charge of practicing medicine without a license -- a charge that would just as available the day before Dobbs as the day after. P.S. I tend to become friendly with my students, but none of them has sought to discuss pregnancy with me. Substantive due process, yes. Pregnancy, no.
Posted by: Bill Otis | Jun 30, 2022 9:38:22 PM
For the sake of convenience, Bill, I left out the details of how Ohio calls for determining a heartbeat because the crux of my hypo was meant to turn on the fact the woman was not sure she was pregnant. And, under Ohio law, a person acts knowingly when behavior "will PROBABLY be of a certain nature." I am wondering if Ohio law gives women incentives to seek abortion pills before confirming that they are actually pregnant and whether doctors, other medical professionals and folks eager to support women seeking to avoid pregnancy would likewise now be on legally sound ground if they helped women obtain abortion pills before they know whether they are pregnant.
You are right that I should not be giving out prescription medications without a license, but the article above discussing Brazil's flags the possibility of an illicit market in abortion drugs emerging. And while these issues may seem just matters for hypothetical debate, they are already real issues for many in the dozen+ states with early abortion bans. With criminalization already an on-the-ground reality, I do not think it mere speculation and fear mongering for folks to try to start working through the array of legal, policy and practical issues even before there are arrests and prosecutions.
Posted by: Doug B. | Jun 30, 2022 11:17:50 PM
Bill, in D.C., Maryland, and Virginia, this might not seem like a big deal to figure out what is legal, but some of the state laws in red stated go very, very far.
In my state, the definition of abortion includes medical abortions. So the big issue for hospitals and doctors is what pills constitute an abortion. Yes. doctors can take a broad view of what the law prohibits and avoid being prosecuted -- which is why I do not anticipate much in the way of prosecution. But for the patients, what they used to be able to get as far as birth control and "morning after" pills is now in question. For now, even Republican prosecutors are saying that they will take a narrow view of that provision, but that is just a discretionary call by prosecutors that could change at any time.
I think we will get lots of referrals to out-of-state doctors, but what happens when pharmacies from other states start sending pills through the mail. Is the doctor who did the referral guilty as an accomplice? In border areas, doctors might just move their office across state lines and have the patients come to the doctor's ofice to take their pills, but in the center part of the state, how much doctors are willing to go into the grey area will determine what health care is available to women.
Which is why my position is that it's not the prosecutions that matter, it is what the laws prohibit. And in some states, what the laws prohibit is quite a lot more than you might think that they do.
Posted by: tmm | Jul 1, 2022 9:46:15 AM
tmm --
"But for the patients, what they used to be able to get as far as birth control and 'morning after' pills is now in question."
I am forced to confess that at my age, pregnancy is not something that crosses my mind a lot. Indeed, there are those who say that nothing does either.
Posted by: Bill Otis | Jul 1, 2022 11:46:17 PM
