For the Defense - Vol. 7, Issue 4 - 14
How The New Criminalization
of Abortion Will Impact Your
Practice
F
or nearly 50 years in this country, abortion was a right protected
by the Constitution of the United States. The Supreme
Court's opinion in Roe v. Wade1
was the law of the land. All
that changed on June 24, 2022, when the Supreme Court decided
Dobbs v. Jackson Women's Health Organization.2
Dobbs held the
Constitution does not confer a right to abortion, Roe and Planned
Parenthood of Southeastern PA v. Casey3
were overruled, and the
authority to regulate abortion was returned " to the people and
their elected representatives. "
Many who followed the issue predicted that Roe would be limited
in some way as it had been in Casey. But the breadth of the Dobbs
opinion was more sweeping and stunning in its elimination and
repudiation of a constitutional right which guaranteed women the
right to reproductive choice. The contours of the decision and how
it will be interpreted are still uncertain and have left women and
legislatures across the country reeling as individual states enact laws
to restrict and criminalize abortion.
Overcriminalization of private behavior is nothing new to
the criminal defense bar. The so called 'war on drugs' is just one
recent example where poor minority communities are subject to
widespread surveillance and continue to bear the weight of mass
14 For The Defense l Vol. 7, Issue 4
Caroline M. Roberto
incarceration. Criminalization of abortion will impact our practice
and our communities in much the same way. Even before Dobbs was
decided, a report by the National Association of Criminal Defense
Lawyers warned that laws prohibiting abortion and policing
pregnancy outcomes would criminalize private behavior in ways we
have never seen. The report, Abortion in America: How Legislative
Overreach Is Turning Reproductive Rights into Criminal Wrongs,4
sounded the alarm about a wave of expansive prosecutions that will
follow the reversal of Roe and that, as with the war on drugs, will
disproportionately impact women of color and poor women.5
What Does This Mean for Criminal Defense Attorneys in
Pennsylvania?
In April 2022 at the annual PACDL conference in Harrisburg,
panelists presented a session on what to expect if Roe was
overturned. Four days later, the Dobbs opinion was leaked to the
press. Since then, many states' laws have been rapidly changing
to restrict or totally prohibit abortion, and ongoing state court
challenges to abortion bans are meeting with varying degrees of
success. Although numerous restrictive bills have been introduced
in Pennsylvania, none have recently passed into law. This is largely
because our governor has promised to veto anti-abortion legislation.
For the Defense - Vol. 7, Issue 4
Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 4
Contents
For the Defense - Vol. 7, Issue 4 - 1
For the Defense - Vol. 7, Issue 4 - 2
For the Defense - Vol. 7, Issue 4 - Contents
For the Defense - Vol. 7, Issue 4 - 4
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