Abortion Is (Again) a Criminal-Justice Issue

Whenever abortion came up during my three decades working on criminal-justice reform, the interlocutor always took the attitude, “That’s someone else’s job.” 

Not anymore. With the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on June 24, abortion once again became a criminal-justice issue in Texas, full stop.

The Court’s abandonment of Roe v. Wade—combined with a decision last year by Governor Greg Abbott and the Texas Legislature to reaffirm criminal statutes on abortion from the 1925 Penal Code if and when Roe ever fell—have suddenly dumped the abortion question back into the realm of criminal law. 

The Justices decided Roe when I was four years old, so I’ve never known a world in which the criminal courts managed women’s reproductive choices. It’s easy to forget that the “Wade” in Roe v. Wade was Henry Wade, the Dallas County District Attorney and that for a century-plus before that, performing or facilitating an abortion was a crime for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.

Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854 before being updated to include the word “abortion” in 1907 and then codified into the Penal Code in 1925. 

Attorney Doug Gladden of Barbieri Law Firm identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren’t frequently enforced. 

What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year-old girl. In 1907, a physician was prosecuted in Haskell for performing an abortion on his 13-year-old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. (A rich society lady, Reum wore fashionable gowns and diamonds while incarcerated in the county jail.)

The earliest case I found reported in Texas newspapers was in 1890 in Comanche, where a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed H.B. 235, which made that official, requiring the state medical board to rescind licenses for any physician found to have performed a criminal abortion.

Forbidding safe abortions didn’t mean women wouldn’t pursue unsafe ones en masse.

In 1960, the Amarillo Globe-News cited local physicians’ concerns that the abortion ban forced women to have “do-it-yourself” abortions and reported that most women seeking the procedure were married.

Forbidding safe abortions didn’t mean women wouldn’t pursue unsafe ones en masse. By the time Roe was decided, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966, an estimated one million women had criminal abortions, and 8,000 of them died as a result.

By contrast, in 2021, the Guttmacher Institute estimates that about 930,000 women had safe, medical abortions, though the U.S. population is much larger than in 1966. So legalizing abortion didn’t make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.

If it’s true that abortions were more prevalent under a criminal-sanctions regime, from a policy perspective, recriminalizing greatly increases the harm without achieving the desired result.

In 2021, Texas enacted new laws criminalizing doctors and others who perform abortions: The new crime is a first-degree felony, with an accompanying penalty of five years to life in prison. Moreover, the Legislature defined the term broadly to include surgical and non-surgical means, including drugs/medication, which the Texas District and County Attorneys Association (TDCAA) notes “now account for more than half of all elective abortions.”

The new statute also creates civil liability for the same doctors, which TDCAA suggests creates a constitutional violation related to “double jeopardy.” If a defendant pays the civil fine ($100,000 per episode), criminal prosecution would be precluded, while criminal punishment would make the civil fines void. “While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions,” according to the prosecutors’ association, “a conviction in the former or a full payment in the latter will foreclose the other option.”

Texas Attorney General Ken Paxton issued a press release declaring that “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature,” but the prosecutors’ association called that claim “speculative.” Several of those laws seemingly conflict with the 2021 statute, and courts would have to decide how they interact.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under the supervision of the justice system—either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as a massive incentive for defendants to lie to the courts and abscond.

Now, because this hasn’t been an issue the criminal-justice system dealt with for more than a half-century, there’s no obvious criminal-justice reform group well-situated to confront these questions. The ACLU will step up, one assumes, but they’re being pulled in a million directions and don’t have a winning track record on these topics. Meanwhile, abortion-rights groups which one would anticipate would be most aggressive haven’t dealt with the justice system in a half-century and will have a steep learning curve. I fear that neither the abortion rights movement nor the criminal-justice reform movement is well-positioned to confront what’s coming next.

 

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