Criminal defense lawyers sound the alarm about mass incarceration if Roe falls

Picture a court of law, jury in place, set to determine the fate of a woman who has had a miscarriage. And she's been charged with murder.

This hypothetical is part of how the National Association of Criminal Defense Lawyers (NACDL) is training its members to prepare for a wave of criminal charges if, as expected, the Supreme Court overturns Roe v. Wade.

Only it's not a hypothetical — this happened in 2019. After a California woman delivered a stillborn baby at 8 months, she tested positive for meth at the hospital and the staff called the police. The Kings County prosecutor charged her with the "murder of a human fetus" and she spent 16 months in jail before the charges were dismissed.

NACDL executive director Lisa Wayne watched the case with concern. She and her colleagues decided they needed to be proactive and start getting ready for what they felt was inevitable.

"Although, I don't think you can ever say you'll be totally prepared for this kind of watershed moment," Wayne said.

'Overcriminalization'

The NACDL published a report last August warning the public that, without the legal protections under Roe v. Wade, thousands of abortion laws could lead to a new chapter of mass incarceration.

The invasion of privacy alone is a big concern to the NACDL. Anyone who needs or wants an abortion outside of the legal limits of their state is not only a target for criminal charges, but risks implicating others, too — by confiding in friends or family, crossing state lines for procedures, or even using a transportation app to get to an appointment.

"Not just fines. We're talking about prison time," Wayne said. "We're talking about minimum mandatory sentences — aiding or abetting someone who gets ultimately charged with manslaughter or murder, which is a life sentence."

And for those who think a future of mass incarceration is too unlikely, Wayne points to the War on Drugs, starting in 1971.

"Suddenly people who were being prosecuted for small amounts of drugs were now involved in larger and greater conspiracies with minimum mandatory sentences," Wayne said. "People were looking at life sentences and still remain incarcerated to this day. You have to ask yourself, what lessons did we really learn?"

Who will actually pay the price?

The NACDL has tens of thousands of members. Actual feelings and opinions on abortion vary within the organization, as expected. But that's not what this collective red alert is about.

Wayne says that despite a range of personal views, the membership as a whole is concerned about invasion of privacy, government overreach, and a massive stretch on legal resources if a wave of abortion-related criminal charges hits the U.S.

And that pain won't be distributed equally.

"Whenever you're talking about overcriminalization, you're talking about money," Wayne said. "Rich people will always be able to lawyer up. They will always have access to attorneys. Poor people will be left behind."

She points to an already overwhelmed public defender system, which people can't access until after their legal troubles have started.

"I don't get a lawyer, if I'm poor, until I'm actually charged with a crime in this country in most jurisdictions," she said. "So I have to wait until that moment until I get charged. If I have money, 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."

The perfect victim

A future without Roe v. Wade ultimately leads back to that courtroom and jury, where the task at hand becomes navigating perception. The burden of being "the perfect victim" is nothing new when it comes to cases of harassment, sexual assault and domestic violence.

"To be a perfect victim of sexual assault, human trafficking or intimate partner violence, you cannot also struggle with addiction, poverty or mental illness," wrote Amanda Rodriguez, a former federal prosecutor and the executive director of Baltimore's rape crisis center, TurnAround Inc, in a 2021 op-ed for the Baltimore Sun. "To be a perfect victim, you cannot accept a drink, engage in commercial sex or walk alone at night. You cannot wear tight clothes or have a criminal record. You cannot be human."

Except with a criminalized abortion, the "victim" isn't pressing charges. They're fighting them.

"At the end of the day, it's going to be the bias going into the courtroom," Wayne said. "The bias dealing with the district attorney who has preconceived notions of their own about how these cases should be prosecuted, the judges who oversee these cases and how they feel — and then ultimately go to the jurors' bias."

And that's a main focus of NACDL's training at the moment: preparing to help clients who have been charged with abortion-related crimes look sympathetic and relatable to a group of their peers (wherein the degree of difficulty varies, depending on your race.)

But in some cases, that might not be enough. While more than a dozen states have trigger laws that would immediately go into effect if Roe is lifted, restrictive abortion bans already exist in many states — some without exceptions for rape, incest or to save the life of the mother. And the Supreme Court might be about to grant state lawmakers the freedom to ban abortion however they want.

So when a jury is asked to determine whether someone broke a law post-Roe, even a "perfect victim" might still be a guilty one.

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