The Fall of ‘Roe v Wade’, consider a court of law, where jury is assembled to decide the fate of a woman who has suffered a miscarriage, charged with murdering a fetus.
This hypothetical is a part of how the National Association of Criminal Defense Lawyers (NACDL) is preparing its members for a flood of criminal charges if the Supreme Court, as expected, overturns Roe v. Wade.
But this isn’t a hypothetical; it happened in 2019. After delivering a stillborn baby at the age of eight months, a California lady tested positive for meth at the hospital, prompting the staff to notify the authorities. The prosecutor in Kings County charged her with “murder of a human embryo,” and she spent 16 months in jail before the charges were dropped.
Lisa Wayne, executive director of the NACDL, with her colleagues concerned about the situation, decided they needed to be proactive and begin preparing for what they perceived as unavoidable.
“However, I don’t think you’ll ever be completely prepared for this kind of watershed event,” Wayne remarked.
‘Overcriminalization’
Last August, the NACDL issued a report warning the public that, in the absence of Roe v. Wade legal protections, thousands of abortion prohibitions might lead to a new chapter of mass incarceration.
The NACDL is deeply concerned about the breach of privacy alone. Anyone who requires or desires an abortion outside of their state’s legal boundaries risks not only facing criminal penalties but also incriminating others – by confiding in friends or relatives, crossing state lines for procedures, or even utilizing a transportation app to go to an appointment.
If Roe is overturned, a procedure that allows minors to have abortions may be abolished.
“It’s not just fines; we’re talking about incarceration,” Wayne stated. “We’re talking about minimum obligatory punishments – assisting or abetting someone charged with manslaughter or murder, which carries a life sentence.”
For those who believe that mass incarceration is an impossible future, Wayne points to the War on Drugs, which began in 1971.
“People who were being tried for tiny amounts of drugs were now implicated in larger and larger conspiracies with minimum required penalties,” Wayne explained. “People were facing life sentences and are still detained today. You must ask yourself, “What lessons did we truly learn?”
Who is going to pay the price?
Tens of thousands of people are members of the NACDL. As expected, actual attitudes and perspectives on abortion differ throughout the organization. But that isn’t the point of this collective red alert.
Wayne claims that, despite differing personal perspectives, the membership as a whole is concerned about invasion of privacy, government overreach, and a significant strain on legal resources if a wave of abortion-related criminal cases hits the United States.
And the pain will not be divided evenly.
“Anytime you talk about overcriminalization, you’re talking about money,” Wayne explained. “Rich people will always be able to hire a lawyer. They will always have access to legal counsel. The poor will be left behind.”
She cites an already overburdened public defender system, which clients cannot access until their legal problems have begun.
“If I’m poor, I don’t obtain a lawyer until I’m really charged with a crime in this nation in most areas,” she explained. “So I’ll wait till then to be charged. If I have money and access to counsel, I can receive guidance ahead of time and possibly prevent the penalties that I would face if I didn’t have money.”
The ideal victim
A world without Roe v. Wade eventually returns to that courtroom and jury, where the issue becomes negotiating perception. When it comes to cases of harassment, sexual assault, and domestic abuse, the weight of being “the perfect victim” is nothing new.
“You cannot be a perfect victim of sexual assault, human trafficking, or intimate partner violence while also struggling with addiction, poverty, or mental illness.” Amanda Rodriguez, a former federal prosecutor and executive director of Baltimore’s rape crisis center, TurnAround Inc, wrote in a 2021 op-ed for the Baltimore Sun. “You cannot be an ideal victim if you accept alcohol, indulge in commercial sex, or walk alone at night. You are not permitted to wear revealing clothing or have a criminal background. You are not human.”
Except that in the case of a criminalized abortion, the “victim” does not file charges. They are battling them.
“At the end of the day,” Wayne added, “it’s going to be biased entering the courtroom.” “The bias begins with the district attorney, who has predetermined beliefs about how these cases should be prosecuted, and then moves on to the judges who review these cases and how they feel — and last, the jurors’ bias.”
And that is currently a major focus of NACDL’s training: preparing to help clients accused of abortion-related crimes appear sympathetic and relatable to a group of their peers (wherein the degree of difficulty varies, depending on your race.)
However, in some circumstances, this may not be sufficient. While more than a dozen states have trigger laws that would take effect immediately if Roe is overturned, many states already have restrictive abortion bans in place, some without exceptions for rape, incest, or to save the mother’s life. And the Supreme Court may soon empower state legislators with authority to prohibit abortion in any way they see fit.
So, when a jury is asked to decide whether someone breached the law after Roe, even an “ideal victim” could be found guilty.
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