Thousands of legal commentators have addressed the implications of permitting states to force birth by outlawing abortion, but few have discussed the extent to which Dobbs expands the police state, erodes free speech, and upends the presumption of innocence.
The idea that a woman’s most heart-breaking personal decision can be dictated by the government rankles most. But that has not stopped GOP-led states from adopting abortion bans opposed by majorities of their own citizens, according to Pew Research. State laws emerging under Dobbs range from reptilian ‘at fertilization’ bans, making abortion illegal the moment an egg is fertilized, to a six week ‘fetal heart beat’ ban, which goes into effect before most women know they are pregnant. Many southern states, including Arkansas, Alabama, Kentucky, Louisiana, Mississippi, Missouri, and Texas, criminalize abortion regardless of cause, forcing women and girls impregnated through sexual assault, rape or incest to give birth, prolonging their brutal assault by nine months. A similar effort was barely defeated in Indiana, where GOP legislators passed the nation’s first anti-abortion law following Dobbs. On September 15, abortion in Indiana will be outlawed at fertilization unless the woman’s life is in danger; in cases of incest and rape, women will have only 10 weeks to seek out an abortion at one of only a handful of hospitals in the state since abortion clinics will be banned.
As new state bans take effect, whatever their terms, they will not self-effectuate. GOP-led states with new abortion bans will rely on extraordinary tools of government surveillance and expanded police power to enforce them.
To begin, each new ban will rely on expanded state authority to obtain and review medical records in maternity cases. Pregnancy will now come with a built-in HIPPA waiver in favor of the county prosecutor. Bans that make exceptions only when necessary to save the life of the mother have expanded state prosecutorial authority to monitor, question, and dispute whether and when a mother’s life is in danger, and to what degree. These prosecutorial inquisitions will have the intended effect, as each medical termination will trigger prosecutorial review, disputation, and second guessing.
Whether the mother’s life was in sufficient danger to defend a termination will ultimately be decided by the state, but no state statute has, thus far, defined exactly how close to death the woman must be, what metrics her failing organs must meet, how low her vital stats must fall before the exception is triggered. Depending on their politics, any prosecutor can argue that any woman could have lived another day, week, or month without termination, leading doctors who want to avoid a murder charge to err on the side of medical certainty, increasing the likelihood they will wait too long.
New abortion bans also shift long-rooted, traditional criminal evidentiary burdens. Since 1894, one of the main tenets of American criminal law has been that defendants are presumed innocent until proved otherwise. The burden of proof rests with the prosecution, not the accused. Criminalized abortion laws flip the evidentiary burden by requiring doctors to prove that their decision to terminate was a medical necessity to save the woman’s life. In other words, doctors facing criminal prosecution will have to prove their innocence. Dobbs has now granted the state the power to decide when a woman’s life is sufficiently in danger for her doctor to abort, and has subverted the presumption of innocence when that difficult decision is made.
Even in cases of eventual acquittal, the doctor will have to spend several years battling a criminal conviction and loss of license, at formidable professional, financial and psychological cost.
Dobbs not only marches the state into the delivery room, it will also distort the First Amendment. Many conservative legislators feel that criminalizing the act of abortion isn’t sufficient. Shortly after the opinion was issued, the National Right to Life Committee (NRLC) proposed model legislation to criminalize communications that inform women about options to terminate their pregnancy. Stressing the importance of a states’ “effective enforcement regime” under Dobbs, NRLC argues:
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“Abortion-rights advocates are conspiring on how abortion-on-demand can be protected in States that will adopt pro-life laws… If we rely… on criminal penalties (alone), these counties will (become) sanctuaries for abortion-on-demand.”
The NRLC’s standing recommendation is for states to criminalize not just the act of terminating an unwanted pregnancy, but to criminalize speech that leads to the decision. Under their model statute, criminal penalties await anyone who assists, counsels, or advises a pregnant woman over the telephone or internet regarding self-administered abortions such as the morning after pill, anyone who maintains a website or internet service that facilitates efforts to obtain an abortion, and anyone who provides referrals to an abortion provider.
Some states, including Texas, take NRLC’s recommendations even further. Texas authorizes private citizens to enforce the state’s abortion ban by suing abortion providers and anyone else who helps a woman seeking an abortion in any way, including her husband, parents, neighbor, friends, family members, even a taxi or Uber driver. If the lawsuit shows the state’s ban was violated, the vigilante, under the new law, will collect a bounty of at least $10,000 and attorneys’ fees, a feature designed to intimidate. Abbott’s vigilante law encourages Texans to try to control women’s health in other states as well, and encourages vigilantes to chase Texan women across state lines.
Under the First Amendment as it stands today, one state cannot bar citizens in another state “from disseminating information about an activity that is legal in (the disseminating) state.” Dobbs will change that. Advocacy deemed to “help cause illegal conduct,” such as supporting abortion in states where it is outlawed, is subject to prosecution as speech “integral to criminal conduct,” an exception to protection under the 1st Amendment. Such speech can be banned if a court determines the speech is meant to induce a crime. Anti-abortion states will use this exception to curtail freedom of intrastate and interstate speech, including signs, publications and social media posts identifying abortion resources. Assisting women with costs of transportation, time off, and child care, will also be deemed to ‘aid or abet’ abortion, subjecting anyone to prosecution.
The exponential expansion of state policing power under Dobbs means that every prosecutor in every county in half the states can now access women’s private health records. Under state bans excepting rape and incest, the state can now access their mental health records as well. Every ob-gyn brave enough to continue delivering babies in ban states will walk into the delivery room with the grave specter of criminal prosecution looming should life-threatening complications arise, as they often do. Advocates — including parents, friends, spouses, and relatives — who discuss abortion resources will be subject to prosecution for ‘aiding and abetting’ a “crime,” their private speech rights trumped by the criminal prosecution interests of the state.
That more women will die under Dobbs has been obvious since the decision was issued. Less obvious are the civil liberties dying with them.
Sabrina Haake, a Gary attorney, is a freelance columnist for the Post-Tribune.