Lock Her Up

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The National Association of Criminal Defense Lawyers published a report today that essentially predicts a war against young women on a par with the war that Richard Nixon declared in 1971 against drugs.

Since Roe v. Wade a woman has held the presumed right to lawfully obtain an abortion. But “lawfully” in recent years has been so whittled by state legislatures, and the Supreme Court so fattened with social conservatives, that this right is looking more and more like a wrong that may be punished with prison or worse.

NACDL Executive Director Norman Reimer, in his preface to “Abortion in America: How Legislative Overreach is Turning Reproductive Rights into Criminal Wrongs,” says the report “is intended to sound an alarm bell about a wave of expansive prosecutions that will likely follow any significant curtailment or reversal of Roe v. Wade.”

Erosion of Roe, he says, “may well open the floodgates to massive overcriminalization.” He should probably have said, yet more massive overcriminalization.

Key findings of the report include these:

• If Roe v. Wade is overturned it will result in a near complete ban on abortion in several states, vastly expanding the potential for criminal charges to be brought against those participating in or performing abortions in those states.
• State laws redefining “personhood,” to include an unborn child within the definition of a “person” or “human being” have been used to dramatically alter the scope of criminal liability in states in which such seemingly minor definitional changes have occurred, expanding the reach of criminal liability for serious offenses such as homicide, feticide, aggravated assault, as well as many other crimes, and in certain states they also threaten to expand the scope of criminal liability for the performance or receipt of an abortion.
• Although the majority of state statutes make explicit that their laws do not create criminal liability for women who receive abortions, proposed anti-abortion legislation and existing criminal statutes in states across the country will in fact subject women to criminal prosecutions and incarceration for their pregnancy outcomes including abortion.
• Existing state conspiracy, attempt, and accomplice liability statutes subject a wide range of individuals, beyond the women seeking abortions and the doctors performing them, to criminal penalties; such liability will only further expand if Roe v. Wade is overturned.
• Proposed anti-abortion legislation disproportionately impacts poor women, black women, and other women of color, highlighting the deeply sexist, racist, and classist nature of the recent and proposed new anti-abortion laws, and the manner in which such laws will contribute to the problem of systemic racism and classism within the criminal legal system.
• Anti-abortion laws, if permitted to go into effect, and/or a Supreme Court decision overturning Roe v. Wade will lead to rampant overcriminalization through regulatory enforcement and to mass incarceration on an unprecedented scale.
• In many states, additional legislative action is not required for recent abortion legislation to take effect. As such, Roe v. Wade may be the only safeguard preventing the vast expansion of criminal liability in relation to pregnancy and the performance of an abortion.

The full report is here.