Abortion: The Red States Enforcement Nightmare
Now that Roe v. Wade has been overruled, the red states will now be free to ban abortion. In approximately 25 red states, there will soon be a total or near total ban without any exceptions for rape and incest. (Thirteen red states have so-called “trigger laws” that already banned all abortions once the six Republicans on the Supreme Court overruled Roe.) Once these abortion bans are passed, it will be up to police and prosecutors to enforce the new laws.
Once a red state bans abortion, many people could potentially be indicted for murder. For example, women who have abortions, health care providers who perform the procedure, and even drivers who transport women to appointments for abortions could be subject to criminal liability. Prosecutors and police could potentially investigate and prosecute a large number of people for being part of an alleged conspiracy to commit murder.
“Well, 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 vs. Wade. So we know that existing state conspiracy laws, attempt aiding and abetting, accomplice liability, subjects a wide range of individuals beyond just women who are seeking abortions. 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.” Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers.
The most controversial aspect of these prosecutions will be the kind of evidence necessary to prove murder beyond a reasonable doubt. Inevitably, it will require police to raid doctors’ offices and seize women’s phones and computers. The enforcement of these big government bans will require a major commitment of law enforcement resources.
“(A)s soon as a prosecutor or police officer in a deep-red state finds “probable cause” in a case involving a woman who allegedly has had an illegal abortion, a state judge (likely elected and subject to the whims of the public) can issue a warrant. It will all be technically correct and procedurally pristine, but since the “crime” takes place in a woman’s womb, the enforcement mechanism by necessity will be intrusive.” Jennifer Rubin of the Washington Post.
Other red states like Texas and Oklahoma allow private enforcement of their abortion bans. If somebody has an abortion, private parties can sue anybody involved in the procedure for money damages. The reality is that the Fourth Amendment only applies to government action. That constitutional protection doesn’t apply in the context of civil litigation and a private lawsuit. These private bounty hunters that will enforce these laws are not restricted by the Constitution at all.
When the Texas anti-choice law was passed in 2021, Robin Fretwell Wilson of the University of Illinois law school wrote: “The encouragement of ‘voluntary espionage’ between neighbors hints at forms of totalitarianism that most Americans would publicly rail against.”
Another form of totalitarianism that many Americans won’t tolerate stems from the fact that many women track their menstrual cycle on apps on their phones and computers. “Privacy groups and abortion advocates have warned in the months since the bombshell Supreme Court leak that data from period-tracking apps and other information could be used to target people seeking abortions and possibly lead to criminal action in states where the procedures would become illegal without federal protections.” The Hill.com. Currently, there are no legal protections in place for this type of intimate data.
Already, numerous women are rushing to delete period tracker apps out of fear the data will be used against them in the red states where abortion is now banned or will soon be banned. Experts advised erring on the side of caution. “If I lived in a state where abortion was actively being criminalized, I would not use a period tracker — that’s for sure,” University of Edinburgh researcher Andrea Ford told NPR.
A prominent conservative has proposed a less intrusive way to enforce the GOP’s big government abortion bans. Dr. Jay Richards of the Heritage Foundation has introduced what he has labeled as a “thoughtful proposal” to commit women who have abortions to “mandatory psychiatric custody.” Richards isn’t some marginal figure on the right. Instead, he’s a Director at the Heritage Foundation — the most prominent and prestigious right-wing think-tank going back to the Reagan presidency.
Closer to home in Nebraska, Governor Pete Ricketts and Speaker Mike Hilgers plan to call a special session of the legislature to ban abortions, without any exceptions for rape and incest. There are currently 32 votes to ban abortion. The GOP needs 33 votes to break a Democratic filibuster. Senator Justice Wayne of Omaha is on the fence and may be the deciding vote. I would recommend that you call your state senators. Please don’t demonstrate at their homes and give the right a phony issue.
“You know what will not happen in Nebraska after they attempt to completely ban abortion: — They won’t pass paid parental leave — They won’t fully fund our child welfare system — They won’t increase benefits to needy families — They won’t increase access to contraception. How do I know? Because they have defunded or defeated all of those proposals while they tried to ban abortion for the last eight years I have been in the Legislature.” Senator Adam Morfeld.
We are in the current predicament because many Democrats stayed home or voted third party in 2014 and 2016. In the 2014 cycle, Democratic apathy allowed the Republicans to regain control of the Senate. In 2016, third party votes for Jill Stein allowed Trump to carry Michigan, Wisconsin and Pennsylvania.
The time is now to resist. Call your state senators! Volunteer for a campaign! Vote! We can win this fight!