As the United States enters an era of diminished reproductive rights following the Supreme Court’s decision that overturned Roe v. Wade, a path has been cleared for at least 13 states — those with “trigger laws” — to begin penalizing and prosecuting people who violate abortion bans.
Bans are already in effect in Kentucky, Louisiana, South Dakota and Missouri, and at least nine other states are expected to follow suit within days.
Although penalties vary, these states all now have laws that would charge abortion providers with some category of crimes, with penalties including fines, jail time, and revocation of medical licenses.
Some legal experts worry that prosecutors are using intimate evidence, such as text messages, internet search history and period-tracking apps to build their cases, along with, possibly, information. collected from health professionals.
And, although abortion-banning states have focused penalties on providers and not those who seek or self-manage an abortion, women will still be in the crosshairs, said senior attorney Farah Diaz-Tello. and Legal Director of If/When/. How, a reproductive justice group.
“We anticipate an increase in the number of people criminalized despite what the law says, due to the additional surveillance, stigmatization and scrutiny of pregnancy outcomes among people suspected of having had abortions,” he said. she declared.
What would a criminal trial look like?
To build their cases, prosecutors, sometimes working hand-in-hand with law enforcement, will rely on “criminal surveillance tools” such as geofencing warrants that seek information about a person’s whereabouts. , online keyword searches, texting and medical apps, said Emma Roth. , attorney for the National Advocates for Pregnant Women.
Evidence can also include GPS data, purchase history, social media activity and phone call records, she said.
“These mass surveillance tools have the potential to sweep hundreds or thousands of people into their reach and subject them to possible investigation and prosecution,” Roth said.
Hospital staff and medical professionals who report pregnant patients or new parents for the first time could also be deliberately and unwittingly assisting in prosecutions, she said.
“These individuals are armed as state actors and very often misunderstand what their legal obligations are with respect to mandatory reporting, this advice from medical professionals often triggers criminal proceedings,” she said.
Between 2006 and 2020, there have been more than 1,300 cases in which women have been arrested, detained or prosecuted in legal actions related to their pregnancies, including abortion, according to the National Advocates for Pregnant Women, a nonprofit legal advocacy organization that works to protect the rights of pregnant and parenting women, including those who have abortions.
Some of these past cases could foreshadow how prosecutors might approach criminal prosecutions.
Among them is the case of Purvi Patel, an Indiana woman who was sentenced to 20 years in prison in 2015 after being charged with feticide and child neglect after allegedly inducing her own abortion.
Prosecutors used text messages between Patel and a friend, which included a conversation about ordering pharmaceutical pills to induce an abortion, as evidence against her.
An appeals court eventually reduced Patel’s sentence in 2016 to less time than she had served and she was released.
In 2017, a Mississippi prosecutor charged mother-of-three Latice Fisher with second-degree murder after she was stillborn.
In that case, a prosecutor used internet search history during the trial that showed Fisher searched for terms such as how to “buy abortion pills” and “misoprostol abortion pill,” according to court documents. After a three-year legal battle, the charges against her were dropped.
“Pregnant people have been prosecuted for murder for experiencing a stillbirth, prosecuted for endangering children even when they had perfectly healthy babies who had no adverse health effects, prosecuted for attempting to ask a medical abortion and it all happened with Roe on the books,” said Emma Roth, attorney for the National Advocates for Pregnant Women.
After the Supreme Court voted 5-4 to overturn Roe v. Wade, Roth said she expects “the number of lawsuits to increase very dramatically.”
mount a defense
Nina Ginsberg, the former president of the National Association of Criminal Defense Lawyers and co-author of the organization’s report on abortion-related crime, said defense attorneys and public defenders will rise a variety of vigorous legal defenses against abortion lawsuits and have already begun to think about strategies.
She said one tool will be constitutional challenges, including arguing that certain evidence violates the Fourth Amendment, which protects people from unreasonable government searches and seizures.
“If you get the phone, we’ll ask you ‘was the phone grab legal or is it out of range? Is there a probable reason to search for what they’re looking for?’” she said. The kind of constitutional challenges that are made to digital data or the collection of digital data in other contexts will apply here.”
In addition to constitutional challenges, other cases have been opposed by experts such as toxicologists, she said, who prove that drugs like methamphetamine do not harm the fetus or cause miscarriage.
On Thursday, a day before the announcement of the Supreme Court’s decision, dozens of lawyers, health care providers, child protection workers and policymakers tuned into a webinar hosted by the National Advocates for Pregnant Women to discuss tools and strategies to combat the criminalization of abortion.
Concerns about the new legal landscape were not limited to those who would defend those accused of crimes.
“For many prosecutors, this will be a whole new area for them to face,” said Beth Merachnik, former prosecutor and project director at the Association of Prosecutors, who was on the call.
“There’s a lot going on about prosecutors making statements about not moving forward or not pursuing these cases and that’s important, but I also want to stress that it’s also important to consider what the potential ramifications of this are and in some jurisdictions it may happen that if a prosecutor refuses to pursue a case, another agency, such as [that of] the attorney general can take this case,” she said. “We have other examples where the governor has intervened in other momentous cases and by executive order has sent momentous cases from one state attorney to another and legislators can take away prosecutorial discretion, they can legislate against that in their statutes,” she said.
What’s most important right now is keeping the lines of communication open with partners, allies and communities to understand what’s going on, she added.
Emily Galvin-Almanza, a former public defender and co-founder of Partners for Justice, a nonprofit group that works to train public defenders, said a key focus on the defense side will be defense training. criminal and mitigation, but also education on the scientific and medical side which will undoubtedly come back to the trial.
Ginsberg, along with the National Association of Criminal Defense Lawyers, believes that there aren’t enough defense attorneys who are ready for what can come with criminal prosecutions.
Training lawyers is crucial, but so is identifying and building a roster of experts who have the knowledge and are willing to testify in these kinds of cases, she said. .
“They’ve done it in the war on drugs with a huge number of lawsuits,” she said. “You see how energized the anti-abortion segment of the population is, so it’s safe to assume the same could happen with abortion lawsuits.”