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Pro-choice supporters gathered outside of the U.S. Supreme Court before the Senate confirmed President Donald Trump's U.S. Supreme Court nominee Amy Coney Barrett on October 26, 2020 in Washington, D.C. (Photo: Olivier Douliery/AFP via Getty Images)

The End of Legal Abortion Looms

If Roe is overturned, exercising reproductive choice could become a crime.

Bill Blum

 by The Progressive

For supporters of abortion rights, the stakes could not be higher than they are this term at U.S. Supreme Court. With conservatives holding a 6-3 advantage on the bench, Roe v. Wade is on the chopping block. 

Should Roe fall, abortion will lose its status as a federally protected Constitutional right. Even worse, abortion could become a crime, as it was in nearly every state before Roe was decided in 1973. 

The fallout from any of these developments would be devastating for all pregnant people, but particularly for people of color and the poor.

It's even possible—if Republicans capture the House, the Senate, and the presidency in 2024—that abortion could become a federal felony. Pregnant people, doctors, nurses, and other "aiders and abettors" could be prosecuted and go to jail for conduct that has been perfectly legal for the last four decades.  

This is not hyperbolic. 

The Supreme Court is considering three high-profile abortion cases this session that pose existential threats to Roe. Two of the cases—United States v. Texas and Whole Woman's Health v. Jackson—are from Texas and were argued on November 1. The other, Mississippi's Dobbs v. Jackson Women's Health Organization, is slated for oral arguments on December 1.

The Texas cases deal with a draconian abortion statute that took effect in September. The new law bans abortions once a fetal heartbeat can be detected, usually six weeks after fertilization. In a cynical twist designed to evade federal court review, the law empowers private individuals rather than the state to bring civil actions to enforce the ban. 

After initially declining to hear the Texas cases, the Supreme Court agreed to review them on a limited procedural basis to determine whether federal judges have the legal authority to stop state court judges and private parties from enforcing the law. Though the Supreme Court is not expected to directly address the continued constitutionality of Roe, a victory for the state would leave the law in place and effectively overturn Roe in Texas. A victory for Texas would also encourage copycat legislation elsewhere. 

Dobbs, by contrast, involves a direct substantive challenge to Roe. The case will test the Constitutionality of a Mississippi law enacted in 2018 that bans abortions after the fifteenth week of pregnancy, with exceptions for medical emergencies and severe fetal abnormalities. No exceptions are made for pregnancies resulting from rape and incest

In a brief filed in July, Mississippi asked the court to jettison Roe. The state has been joined in that request by a slew of groups from the ultra-right that have filed amicus curiae ("friends of the court") briefs. 

With Roe out of the way, anti-abortion laws will proliferate. According to the anti-abortion Guttmacher Institute, twenty-six states are likely to ban abortion if Roe is overruled. These include laws enacted before Roe that have never been removed from the books in Alabama, Arizona, Oklahoma, Arkansas, and other states; so-called "trigger" laws that will take effect automatically in Idaho, Kentucky, North Dakota, and elsewhere if Roe is invalidated; and state constitutional bans that will be activated and enforced in Alabama, Tennessee, and West Virginia. 

The abortion bans will also likely spark criminal prosecutions under intense pressure from influential elements of the right-to-life movement. As Heather Lawless, co-founder of the Idaho-based Reliance Center, told National Public Radio last October following the confirmation of Amy Coney Barrett as Ruth Bader Ginsburg's replacement on the Supreme Court: "I don't think abortion should be legal, period. Because abortion at any stage is willfully taking a human life, and I don't think that should be legal—at all."

Though Lawless said she wouldn't want to see abortion patients prosecuted, she advocates holding doctors who perform abortions fully liable. Some anti-abortion hardliners are prepared to go even further.

Catherine Davis, the founder of the Restoration Project in Georgia, told NPR that she wouldn't rule out punishing patients for self-induced abortions. "If she decides to self-abort herself, then she's subjected to the same penalty as the doctor," Davis said, in an apparent reference to techniques such as the "morning-after pill." 

Abortions, in her view, should be treated as murder and punished the same way, "up to and including capital punishment."

While Davis's position may be extreme even in right-to-life circles, the prospect of a cascade of post-Roe prosecutions has the criminal defense bar on high alert. Earlier this year, the National Association of Criminal Defense Lawyers (NACDL) released a comprehensive report warning that if Roe is rejected, state laws defining "personhood" to include the unborn "will expand the reach of criminal liability for serious offenses such as homicide, feticide, aggravated assault, and many other crimes."

Such laws, according to the report, already exist in Arkansas, Kentucky, Mississippi, Alabama, and South Carolina.

The report similarly cautions, in a reference to anyone who provides material assistance with abortions, that state and federal conspiracy laws could be used to subject "a wide range of individuals, beyond women seeking abortions and the doctors performing them, to criminal penalties."  

Although most post-Roe abortion prosecutions would take place at the state level, some cases could be initiated by the U.S. Justice Department should Republican regain the levers of federal power in 2024.

In 2003, with largely Republican sponsorship and support, Congress passed and President George W. Bush signed into law the Partial-Birth Abortion Ban Act, making it a federal felony for doctors to perform certain late-term abortions. The Supreme Court upheld the law as constitutional in 2007 in Gonzales v. Carhart by a vote of 5-4. 

With Republicans back in control of government, it would only take a party-line vote to carve out an abortion exception to the filibuster rule in the Senate for the enactment of a federal statute criminalizing abortion nationwide.

The fallout from any of these developments would be devastating for all pregnant people, but particularly for people of color and the poor. 

The first step in unleashing these dire consequences could be taken by the Supreme Court, which is now dominated by staunch anti-abortion conservatives. We'll know whether Roe will survive when the court releases the final decisions of its current term at the end of June 2022. 


© 2021 The Progressive
Bill Blum

Bill Blum

Bill Blum is a former California administrative law judge. As an attorney prior to becoming a judge, he was one of the state’s best-known death-penalty litigators. He is also an award-winning writer and legal journalist, and the author of three popular legal thrillers published by Penguin/Putnam as well as scores of features and book reviews published in a broad array of magazines and newspapers. His non-fiction work has appeared in a wide variety of publications, ranging from Common Dreams and The Nation to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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