We Can't Look Away
Editor's Note: This blog post will be more fully discussed in an NAPD webinar on September 26, 2019, from 12-1:30 eatern. You can register online at: https://www.publicdefenders.us/calendar_list.asp
With the passage of a string of criminal abortion laws making headlines in the past few months, many attorneys not currently working in the reproductive health/rights/justice movements have started asking what will we do if Roe v. Wade falls. In reality, a world where abortion care is criminalized is already here; the criminalization of self-managed abortion is already taking place, and criminal defense attorneys cannot look away.
Since the holding in Roe in 1973, legislators have passed over 1,000 restrictions on abortion, with over 300 of those restrictions passed since 2010. Some of these restrictions have limited access to self-managed abortion by requiring physicians be physically present while a patient takes the medication, and some go so far as to criminalize those who seek the option. A few states have laws which explicitly criminalize self-managed abortion, while others misapply fetal harm laws or misuse criminal abortion statutes to prosecute those who self-manage and those who help them.
A self-managed abortion is an abortion that that does not occur in the traditional clinical setting, and which a pregnant person may initiate and complete themselves, or with a helper. Self-managed abortion shifts power to individuals to determine if, when, how, where, and with whom they have an abortion, and many people who use self-managed abortion choose medication abortion using — two medications in conjunction: mifepristone and misoprostol. Those two medications were approved by the U.S. Food and Drug Administration more than 20 years ago. They are a safe and effective way to terminate a pregnancy. Despite this, medication abortion is also over-regulated, and its use as a self-managed option may be subject to punitive consequences that push it out of reach for communities who are already over-policed.
When I left public defense to start working on decriminalizing self-managed abortion, friends and colleagues wondered how I would deal with the transition. Many centered on the idea of my making a big change, and engaging in vastly different work. This is partially true; being a public defender is unlike any other legal job. The hours, the clients, the change, and the unique amount of disrespect lodged at those who dare to stand in defense of the Sixth Amendment forms an all-inclusive fraternity. The job is the quintessential “if you know, you know” experience. The nature of the work can make other issues, even the issue of abortion, seem so far removed from the day-to-day work of criminal defense.
However, there is quite a bit of overlap in the work that we all do. We are fighting against the same systems, and oftentimes for the same people. The greatest threat to those who self-manage their abortions and to those who help them does not concern their health and safety, but rather the threat of politically motivated prosecutions and punitive policies.
These policies subject people - particularly people of color and those who live in low-income communities - to assumptions of criminality, often manifesting as over-surveillance by police, the child welfare system, and other state systems. We also are dealing with the effects of the drug war, which has justified the militarization of the police, and the eight-fold increase of women in incarceration since the 1980s. At the same time, abortion stigma is pervasive, shrouding the fact that abortion is normal, legal, and safe. Taken together, these legal, political, and often cultural implications lead many to accept the belief that pregnant people should be held criminally responsible for the outcomes of their pregnancies.
Criminal defense attorneys often play double duty in court. While the job calls for defending clients and holding prosecutors to the stringent “beyond a reasonable doubt” standard, there's also the unstated job: criminal defense attorneys, along with the investigators and social workers that make up the defense team, are tasked with educating everyone in the courtroom. It is criminal defense attorneys who teach the Court and prosecutors about the nuanced ways the law affects not only our clients, but their families as a whole. It is in mitigation statements and creative motions practice that courts first learned how to deal with addiction, and how the effects of traumatic brain injuries manifest in someone's behavior. It is criminal defense attorneys who brought the concept of collateral consequences into the courtroom, and forced courts to consider - even if not always successfully - the ways that laws and policies affect individuals.And it will be criminal defense attorneys - particularly public defenders - who are tasked with this same educational lift on the issues of reproductive rights, health, and justice, particularly when those rights are endangered by prosecutors who seek to criminalize pregnant people for exercising reproductive autonomy.