Opinion, Berkeley Blogs

After Roe: Governing Abortion through Crime?

By Jonathan Simon

Jonathan Simon and Sarah DiMagno

Last week’s Dobbs v. Jackson Women’s Health Organization decision, the overturning of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), on June 24, 2022, is a stunning result notwithstanding the unusual warning it was coming (in the March leak). It is hard to think of another Supreme Court decision that removed rights from American citizens on such a massive scale as Dobbs. I will leave it to our constitutional colleagues to analyze the wrenching distortion of constitutional doctrine achieved by the Dobbs majority and to chart the future of Due Process autonomy and dignity rights more generally under this dramatically new doctrinal landscape.  But it is  worth considering the likelihood that whatever else it leads to, the removal of constitutional protection for early-term abortions (and, in some states, all abortions) will lead to a growth in criminal law. Both the Dobbs majority and its critics recognize the important role criminal law played in the 19th century in regulating abortion.  In the 21st century, however, people seeking access to abortion or aiding others in doing so will face a criminal legal system vastly more aggressive and punitive than it was in 1973, just as mass incarceration was beginning to set in.

We are not sure what will happen next, but here are some of our concerns about abortion and sexual autonomy as a once and future terrain for criminalization.

  • Last summer, Texas developed a novel civil action to allow its citizens to seek damages against people for abortions, suggesting some reluctance to fully criminalize abortion. Perhaps the growing national sentiment against over-criminalization will check the impulse to use the criminal law to repress the practice. But it seems more likely that criminal law, already the preferred tool of American governments for solving social problems like people living on the streets or suffering mental illness and/or substance abuse disorders, will be used here as well.
  • Thirteen states have so-called “trigger bans” already on the books. These laws, passed over the last fifty years, make abortion immediately illegal once Roe has been overturned. In Kentucky, Missouri, and North Dakota, performing an abortion in almost all circumstances will become a felony. The bans in Arkansas, Idaho, and Oklahoma also make abortion punishable by 5-10 years of prison time. Most states explicitly penalize doctors and exempt pregnant people from criminal liability. Like the laws in Texas, they serve to isolate those seeking abortions from potential networks of support. Other states, like South Dakota, seem to leave the door open to punishing pregnant people who seek abortions as well. Still other states have pre-Roe abortion bans remaining on their books, which they may soon seek to enforce. 
  • As Professor Mary Ziegler pointed out on NPR discussing Dobbs, future laws criminalizing abortion are likely to include severe punishment including life prison sentences. This seems right. While pre-Roe law generally treated abortion as a distinct and less severely punished crime than murder, it is hard to imagine right to life legislatures leaving murder off the table for fetuses. Initially, states may not punish those who seek abortions as severely, but doctors can expect the full weight of the modern criminal law. In Alabama, a 2019 law called the “Human Life Protection Act” bans abortion in almost all circumstances and threatens doctors who perform them with life in prison. That law is currently blocked by a federal injunction, but will likely be enforceable soon. Those who assist abortion seekers will find that contemporary accomplice liability law makes it possible to treat relatively minor involvement as sufficient to make one liable for the most serious crime of the main actor.
  • If we are in a new era where regulating sexual and procreative practices disapproved of in 1868 (the essential reasoning of Justice Alito’s originalist philosophy) is on the table, we face the disturbing possibility that states will seek to recriminalize same-sex and other private sexual conduct, including non-procreative sexual conduct (oral or anal sex between different genders). Justice Thomas encouraged as much in concurrence, where he argued that no substantive due process rights are valid and explicitly called for the Court to overrule Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception), Obergefell v. Hodges, 576 U.S. 644 (2015) (same-sex marriage) and Lawrence v. Texas, 539 U.S. 558 (2003) (same-sex intimacy). In Lawrence, when the Supreme Court drew on the same Due Process clause to hold that private sexual intimacy among consenting adults could not be criminalized, few states enforced laws on their books against sodomy or deviant sexual intercourse. While it seems unlikely that restoring such laws would be a priority, even in the most conservative state legislatures, some conservatives are laying the ground for it in their increasingly aggressive effort to connect LGTBQ+ people  to pedophiles and cast them as a danger to children generally.
  • If we do end up with some kind of “mass criminalization,” we can expect from the current performance of the criminal legal system that the actual hand of policing, prosecution, and punishment will fall first and most destructively on people of color, especially Black and Indigenous women and trans people.
  • The modern criminal legal system can also employ many more tools of surveillance than in 1973, when crude wiretaps or listening devices were in use against subjects of federal investigations (for interstate gambling and drugs, mostly). Today police rely heavily on social media, cell phone location data, and the like to track and prosecute defendants. If that apparatus is trained on abortion seekers, Americans in some states may find their private moral choices and sexuality under surveillance. Many people use period-tracking apps, which could hypothetically be used to identify and investigate their reproductive choices. Law enforcement has already begun to use women’s digital footprints to prosecuted them for apparent miscarriages. With this new technology in hand, we are returning to an era like the 1920s, when prohibition ruled the land and adultery and fornication remained crimes in most states (and crossing state lines to engage in them was a federal crime). Increased digital surveillance makes these new “crimes” all the more easy to prosecute and punish.
  • Last week, Americans lost one of their most important civil rights: the right to abortion and the right to the sexual autonomy that it allows. That loss opens the door to sweep abortion seekers and their partners and allies into the ever-expanding nightmare of our system of mass incarceration. The mindset of governing through crime, which has only gained prevalence over the last fifty years, may be newly unleashed on those seeking sexual autonomy and basic healthcare.  It is more important than ever to challenge that approach both on its familiar ground (drugs, poverty, mental illness) and on grounds that had once seemed safe.