Criminal defense attorneys say Roe reversal will flood prisons

National Association of Criminal Defense Lawyers warns abortion penalties will result in overcriminalization

By Jessica Corbett

Published June 17, 2022 4:00AM (EDT)

Pro-choice and anti-abortion activists demonstrate in front of the U.S. Supreme Court Building on May 03, 2022 in Washington, DC. (Win McNamee/Getty Images)
Pro-choice and anti-abortion activists demonstrate in front of the U.S. Supreme Court Building on May 03, 2022 in Washington, DC. (Win McNamee/Getty Images)

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With the U.S. Supreme Court's right-wing majority expected to overturn Roe v. Wade any day now, criminal defense attorneys are preparing to defend a flood of clients facing abortion-related charges—and warning about the looming decision's likely consequences.

That's according to an NPR report from Thursday, which includes an interview with Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers (NACDL), that aired earlier this week.

While the NACDL does not take a political position on abortion, Wayne said that "our legal concern is to make sure that we are sounding an alarm bell about the wave of expansive prosecutions that we are certain will follow any significant curtailment or reversal of Roe v. Wade."

Referencing recently enacted laws in states like Texas and Oklahoma that target people who aid and abet abortions, and the potential for similar legislation elsewhere in the future, Wayne warned that "we're talking about the doctors performing them, the friends, the parents, the boyfriends. All of those people will be exposed to criminal penalties, which opens up the floodgates to overcriminalization and mass incarceration."

In response to that warning, Congresswoman Pramila Jayapal (D-Wash.), who has publicly shared her own abortion story, said that "this is absolutely terrifying—and further underscores that efforts to ban abortion are solely about controlling our bodies."

The NACDL leader explained that people who have or assist with abortions could face prison time with mandatory minimum—and possibly even life—sentences. As she put it: "We're not talking about just fines like a traffic ticket. We're talking about serious consequences in this country."

Comparing attacks on abortion rights to the U.S. War on Drugs, Wayne told NPR that "people were looking at life sentences and still remain incarcerated to this day. You have to ask yourself, what lessons did we really learn?"

Noting that comparison in a tweet about the NPR report, U.S. Rep. Bonnie Watson Coleman (D-N.J.) said that "abortion isn't just a reproductive health issue—it's a civil rights issue and a racial justice issue."

Wayne also acknowledged how the anticipated surge in demand for attorneys—if or when Roe falls and GOP lawmakers ramp up legislative attacks on reproductive freedom—will disproportionately impact low-income people.

"Whenever you have laws that lead to rampant overcriminalization, you stretch your resources," she said. "So rich people will always be able to lawyer up. They will always have access to attorneys. They will always be able to have that advice that you should have at the front end."

"Poor people will be left behind. I don't get a lawyer if I'm poor until I'm actually charged with a crime in this country in most jurisdictions, so I have to wait to that moment until I get charged," she continued. "If I have money, if I have access to counsel, I get advice on the front end of being able to perhaps avoid the consequences that I would face if I didn't have money."

Wayne's remarks echoed an August 2021 report from her organization which says that reversing the landmark 1973 high court decision "will lead to rampant overcriminalization through regulatory enforcement and to mass incarceration on an unprecedented scale."

"If Roe v. Wade is overturned it will result in a near-complete ban on abortion in several states, vastly expanding the potential for criminal charges to be brought against those participating in or performing abortions in those states," the NACDL report notes.

According to the pro-choice Guttmacher Institute, at least 26 states "are certain or likely to ban abortion without Roe" through existing so-called trigger laws and other measures.

The NACDL document also highlights that "proposed anti-abortion legislation disproportionately impacts poor women, Black women, and other women of color, highlighting the deeply sexist, racist, and classist nature of the recent and proposed new anti-abortion laws, and the manner in which such laws will contribute to the problem of systemic racism and classism within the criminal legal system."

"The future is clear, should Roe v. Wade be overturned," the report warns, "states across the nation are prepared to arrest and prosecute women, their friends, their providers, and all those who assist them obtain what is presently a legal medical procedure."

Since Politico broke the news of a leaked Supreme Court draft opinion that would reverse Roe, demands have mounted for federal action to protect reproductive freedom. However, Sen. Joe Manchin (D-W.Va.) last month partnered with the GOP—yet again—to block the Women's Health Protection Act, which would affirm the right to abortion nationwide.

The New York Times reported Thursday that U.S. President Joe Biden is considering executive action to protect reproductive rights, including "declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications preempt any state bans."

In a letter to Biden last week, over two dozen senators offered six specific recommendations for executive action and asserted that "the entirety of the federal government must be engaged in the administration's efforts and must act as swiftly as possible."


Jessica Corbett

Jessica Corbett is a staff writer for Common Dreams. Follow her on Twitter: @corbett_jessica.

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