Monday, May 16, 2022
May 16, 2022, by Cynthia Soohoo and Dana Sussman (originally published by Jurist Commentary, May 14, 2022 ):
Last week, Louisiana made headlines by proposing a bill that would make abortion a homicide and explicitly allow pregnant people to be charged with murder. While the bill ultimately failed to advance in the Louisiana House of Representatives, it’s important to know that many states already have laws on the books that could result in charging healthcare workers with murder if Roe v. Wade is overturned and states make abortion illegal in all or most cases. That’s because several states have provisions in their criminal codes that define victims of homicide to include unborn children. For instance, Arkansas’ criminal code defines a person for purposes of its homicide statutes to include “an unborn child in utero at any stage of development.” But statutory language like Louisiana’s explicitly creating a new category of criminal–the pregnant person–is relatively new.
Research done by National Advocates for Pregnant Women and the Human Rights and Gender Justice Clinic at CUNY Law School shows that over 20 states allow murder charges to be brought for causing the death of an unborn child. Most of these states have explicit exceptions for acts committed by pregnant people, and many shield abortions that are performed with the consent of the pregnant person. However, laws in Arkansas, Indiana, Oklahoma, Tennessee and Texas only provide exceptions for lawful abortions or medical procedures. That means if those states make abortions illegal, anyone who performs an abortion could be charged not only with performing an illegal abortion but also murder.
In addition to the states that treat causing the death of an unborn child as murder, approximately 18 states create the distinct crimes of feticide or “murder of an unborn child.” Some of those laws also only provide exceptions for healthcare providers who perform lawful abortions or medical procedures.
When these laws were passed redefining homicide victims, many were championed as a way to protect pregnant people from violence by another person that results in pregnancy loss, but defining homicide victims to include the unborn must be understood as an insidious attempt at normalizing the concept of “fetal personhood.” So perhaps it is not surprising that overzealous prosecutors have brought murder and feticide charges for abortions even in cases where the prosecution is not authorized by the statute. Most homicide and feticide laws explicitly preclude charging pregnant people for actions that lead to pregnancy loss. Yet, recently, in Texas, a prosecutor got a grand jury to indict Lizelle Herrera for murder allegedly based on a self-managed abortion, even though Texas’ penal code specifically prohibits murder charges for conduct committed by a pregnant person. While that charge was dropped after local activists sparked a national outcry, these types of prosecutions are not unusual. In 2015, an Indiana judge sentenced Purvi Patel to 20 years in prison under a feticide law, which does not apply to the pregnant person. After years of appeals while Ms. Patel remained incarcerated, Ms. Patel’s feticide conviction was overturned by Indiana’s highest court in 2016.
The broad scope of protection for the unborn also creates risks for the provision of other healthcare. Many of these criminal laws define the unborn who can be victims of homicide or feticide starting at fertilization. This could impact IVF treatment and forms of contraception that prevent a fertilized egg from implanting in the womb. While several states limit victims of homicide and feticide crimes to unborn children “in utero” or in the womb, not all do. Because of this, Arkansas, Texas, West Virginia, and Kentucky have created explicit exceptions in their homicide and feticide laws for medical procedures involved in assisted reproduction. Some states like Kansas have exceptions for lawful dispensation or administration of a prescribed medicine, which could provide protection for providing contraception. But not all states have these exceptions.
As we see states like Louisiana introduce legislation that would explicitly authorize prosecuting people who have abortions for murder, from our work and research, we know two things to be true. One: there are already laws on the books that would authorize murder prosecutions for health care providers if abortion is made illegal. Two: based on experience, prosecutors will not feel limited by the plain language of statutes, particularly with respect to carve-outs or exemptions that limit their power to prosecute pregnant people. However, Louisiana’s law signals a new overt, full-throated hostility towards people who chose to end their pregnancies. In a post-Roe world, legislatures will not be afraid to rewrite their laws so that they explicitly criminalize pregnant people. The implications of this are vast and terrifying.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law.
Dana Sussman is the Deputy Executive Director at National Advocates for Pregnant Women.
Wednesday, May 11, 2022
By Nancy C. Marcus*
On May 2, 2022, a draft Supreme Court opinion by Justice Alito was leaked to the public, signaling that the Court is at the precipice of stripping away longstanding constitutional protections for privacy and reproductive autonomy. Widely decried for the devastating harms it would render in peoples’ lives, the opinion should also be condemned for its dangerous rewriting of constitutional law. The opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, emphasizing that prior to Roe, some states had criminalized abortion, the opinion indicates that acts once deemed criminal cannot be subsequently recognized as constitutionally protected. Second, the opinion describes the Fourteenth Amendment as protecting only those specific acts explicitly recognized as rights “deeply rooted” in tradition. However, the opinion then focuses on (its version of) pre-1973 history to conclude that tradition demands defying nearly fifty years’ of precedent and reliance on Roe.
Under the first premise, laws struck down for criminalizing constitutionally protected conduct could be reinstated and deemed constitutional after all. Even Supreme Court decisions striking down unconstitutional interracial marriage bans, birth control bans, and bans on private intimate conduct between adults could be overruled, and those bans reinstated. Conduct once criminalized would be virtually exempt from subsequent constitutional protection. It could become nearly impossible to successfully challenge unconstitutional criminal laws in court.
As to the second premise, while the opinion decries unenumerated privacy rights as unprotected, constitutions are by their nature intended to be broad frameworks, not comprehensive lists explicitly detailing every protected right. The tradition of honoring unenumerated rights is traceable to early declarations of inherent, inalienable rights: Alexander Hamilton even felt a Bill of Rights unnecessary because unenumerated rights were understood to be reserved to the people. That said, the Ninth Amendment itself explicitly recognizes the existence of unenumerated rights reserved to the people.
Regarding privacy rights specifically, Samuel Warren and Louis Brandeis co-authored an 1890 “Right to Privacy” Harvard Law Review article documenting the evolution of privacy rights from early property protections to personal autonomy. Justice Brandeis later wrote that the Constitution’s drafters “conferred, as against the government, the right to be let alone—the most comprehensive of rights.” More recently, the Court in Griswold v. Connecticut described the right to privacy as “older than the Bill of Rights,” citing numerous cases back to 1886. However, with Griswold describing contraceptive rights in terms of Ninth Amendment unenumerated rights, the Bill of Rights’ penumbras, and Fourteenth Amendment due process, if Alito’s draft Dobbs opinion, rejecting that same language in Roe, stands, the right to birth control would be hanging by a thread.
Those Justices joining Alito’s opinion would limit substantive due process protections to only “deeply rooted” fundamental rights. However, requiring that abortion itself, as opposed to broader principles of autonomy, be a right explicitly “deeply rooted” in tradition before being protected conflicts with precedent protecting marital and reproductive rights in terms of broader liberty and autonomy principles. Those cases acknowledge a right as fundamental if grounded in “a principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” Alito’s opinion repeats the mistake of Bowers v Hardwick, later overruled by the Court, for improperly framing the right at stake in that case in absurdly narrow “right to homosexual sodomy” terms rather than in the broader principles of autonomy and privacy. As the Court explained in overruling Bowers, “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward” and fails to appreciate the full nature of the liberty at stake.
Alito’s narrow formulation of liberty is constrained by prejudices of the past. Under his approach, interracial marriage and contraception would be unprotected if those specific forms of conduct had not previously been explicitly named as fundamental rights rooted in tradition. That approach fails to honor Justice Frankfurter’s admonition in 1949 that “[g]reat concepts like . . . ‘liberty’ were purposely left to gather meaning from experience,” because those “who founded this Nation knew too well that only a stagnant society remains unchanged.” As Thomas Jefferson warned, “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Alito’s opinion must not become the law of the land, a foundation for stripping away fundamental liberties and rights upon which Americans in myriad contexts have come to rely.
*A law professor at California Western School of Law, Nancy Marcus teaches a course on law and sexuality and is the former state public policy director for the National Abortion Federation.
Wednesday, May 4, 2022
By Richard Storrow (May 4, 2022)
In a widely anticipated move, the United States Supreme Court has voted to overrule Roe v. Wade. A draft of the decision in Dobbs v. Jackson Women's Health was leaked to the press earlier this week, months before its predicted announcement. The draft decision devolves abortion rights to the states, many of which had already been busy rolling back abortion liberty to the vanishing point. Kentucky's new abortion law, for example, would end all abortion care in the state. Texas's draconian ban extends to a ban on abortifacient medications. If the draft decision remains unchanged before the Court releases it officially, from that moment the manner in which pregnant persons will seek abortion care will drastically change. We can expect an uptick of patients traveling from states that prohibit abortion to states that allow it and an increase in self-managed abortion with the aid of telemedicine. Those without the option to travel and without practical or legal access to telemedicine in essence will be trapped. The return of the back-alley abortions that proliferated in the decades before Roe was decided in 1973 is a realistic fear.
The politics of the decision could not be more extreme. The lopsidedness of the Court made the outcome in Dobbs more or less a foregone conclusion, but assigning the decision to Alito, a caustic critic of the work of justices of great intellect and humility was a reckless and perplexing choice of Chief Justice Roberts. Sections of the decision read like a list of conservative talking points. Others are vehement and taunting, heaped up with arrogant, devil-may-care swagger about "abuses of judicial authority" and Roe's being "egregiously wrong." Whatever one may believe about the analytical strength of Roe and Casey, the decision that re-affirmed Roe in 1992, there is no room for doubt that Alito's draft is devoid of the empathy for the pregnant poor exhibited by those decisions.
Alito's draft decision, if released officially, will further undermine the Court's already battered reputation. We know that most people oppose overturning Roe. What we do not know is what the public backlash to the leaked decision will mean for the political complexion of the federal government or whether the leak was intended to gain some sort of advantage for one political group or another. The political ramifications of this event could be wide-ranging or slight. Other issues yet to emerge before the midterm elections may have more of an influence than Dobbs on what votes are ultimately cast at the ballot box this fall, but few will forget the manner in which Roe was overruled and how we all knew about it long before we were supposed to.