From the President: Ahead of the Curve and Expecting a Bumpy Ride

The expected prosecutions as a result of the Dobbs decision are bearing down on a system already overwhelmed post-COVID. Because of the promise of arrests for those traveling interstate seeking services, defense attorneys may feel an impact even if they do not practice in an abortion-restrictive jurisdiction.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

NACDL’s fight against overcriminalization efforts, mass incarceration, and a criminal legal system skewed against people of color and disadvantaged means puts the organization front and center in the post-Dobbs legal landscape.{1} 1  Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) (ruling there is no constitutional right to abortion and paving the way for states to ban abortion). Regardless of one’s stance on state laws enacted to criminalize access to reproductive healthcare, the prosecutions are coming.  We will be asked to defend pregnant people charged as a result of seeking pregnancy-related medical services or a pregnancy loss, medical providers and counselors working in this field, employers who provide access to reproductive healthcare services in other jurisdictions, and others that provide assistance (or just information) to those seeking pregnancy-related medical services. These are not mere projections: within days of the official release of the Dobbs decision, international law firm Sidley Austin, with offices in Houston and Dallas, was threatened with criminal and civil penalties by the Texas Freedom Caucus. In a letter{2} 2  Jennifer Smith, Texas Republicans Sue Law Firm Sidley Austin for ‘Paying for Staff Abortions,’ https://www.msn.com/en-us/news/politics/texas-republicans-sue-law-firm-sidley-austin-for-paying-for-staff-abortions/ar-AAZWLPe?li=BBnbcA1. dated July 7, 2022, this group of Texas Republican legislators also demanded that all Sidley communications be preserved for later use in court, and firm members were threatened with attorney disbarment proceedings if the firm paid for employees to travel for abortion-related medical procedures.

The expected prosecutions as a result of the Dobbs decision are bearing down on a system already overwhelmed post-COVID. The impact on our work will be monumental, even if you do not practice in an abortion-restrictive state, because of the promise of arrests for those traveling interstate seeking services (à la the Sidley letter). Meeting the challenges of this new criminalization will fall upon the criminal defense bar. The landscape is fraught with legislative maneuvering, widespread confusion about the legal and medical landscape, and gender-biased threats of prosecution to anyone perceived to fall within the abortion access network. State legislatures are passing bills at breakneck speed without considering the legal and medical implications of their decisions. The predicted chilling effect on the practice of medicine for doctors and medical students in the fields of obstetrics and gynecology, as well as medical school curricula in impacted states, has already settled in. In certain situations, medical providers are making decisions not based on the health of their patients, but on whether they may face arrest for providing life-saving medical care.

In the midst of the tumult that the advanced leak and subsequent release of the Dobbs decision caused, NACDL was ahead of the curve, having published a groundbreaking report on these issues in August 2021. The report, Abortion in America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs,{3} 3  Read the report at https://www.nacdl.org/abortioncrimreport. represents the vision and hard work of then-President Nina Ginsberg and NACDL Board members Lindsay Lewis and Missy Owen. The report serves as a springboard for the legal quagmire we defense lawyers now find ourselves in post-Dobbs. Since publication, NACDL’s work on these issues has been dedicated, meaningful, and nonstop, placing NACDL on the forefront of Dobbs-related trainings and initiatives.

After the decision, NACDL immediately formed the Criminalization of Reproductive Health Task Force supported by staff and comprised of legal, academic, and policy thought leaders and changemakers from around the country. The task force organized into working groups to address training needs, research and resources, and national points of contact. The effort here has been phenomenal, a testament to NACDL’s dedicated staff, volunteer task force members, and others who immediately stepped up to support the defense bar in providing the best representation possible for their clients. The momentum of this group is unstoppable — on the training front, NACDL is leading the way, hosting cutting-edge seminars and webinars featuring highly regarded speakers in the legal, medical, and digital technology arenas. The collaborative nature of the task force efforts aided in making these events the gold standard for defense trainings nationwide on the subject. 

NACDL hosted its first such training in July.  The success of the programming was evident in the enormous number of registrants. More than 700 people registered to attend the event, titled Post-Roe, Building Defenses in Pregnancy-Related Prosecutions: Understanding the Issues and the Science.{4} 4  Go to https://www.nacdl.org/Media/BuildingDefensesPregnancyRelatedProsecutions072022. NACDL, in collaboration with Pregnancy Justice, presented this free webinar to help attorneys gain a better understanding of the issues and the science surrounding pregnancy-related prosecutions from criminal defense, medical, and reproductive justice experts. It can be viewed on NACDL’s website.

Dec. 16, 2022 — Lindsay Lewis (left), Nina Ginsberg, and C. Melissa “Missy” Owen discuss the task force report on the criminalization of reproductive health at NACDL’s national summit in Washington, D.C.

NACDL next hosted the free webinar Digital Defense in a Post-Dobbs World{5} 5  View the webinar at https://www.nacdl.org/Media/DigitalDefenseinaPostDobbsWorld102722. on Oct. 27, 2022. Subject matter experts and litigators from NACDL’s Fourth Amendment Center explained and discussed some of the important digital technology issues that defense counsel will likely encounter in these cases, including reverse searches, facial recognition, and device searches. It, too, can be viewed on NACDL’s website.

On Nov. 10, 2022, NACDL partnered with the National Association for Public Defense to present Developing Defense Strategies After Dobbs: Public Defense Summit. This free critical training, strategy, and discussion event focused on defending post-Dobbs prosecutions. The summit was offered to all lawyers doing public defense work regardless of the system, including state and federal public defenders, CJA lawyers, court-appointed counsel, and alternative appointed counsel systems.

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I am certainly proud of the fourth training offered by NACDL. The National Summit on the Criminalization of Reproductive Healthcare: Developing Defenses After Dobbs was an in-person event in Washington D.C., where NACDL’s efforts were on full display. Held Dec. 16, 2022, and graciously hosted by George Washington University School of Law, this one-day national summit included representatives from reproductive justice and civil rights groups in addition to defense lawyers and medical experts. Subject matter experts discussed the current status of laws and prosecutions across the country.  Participants also brainstormed and networked on the topics of what training and resources are needed, where they are most needed, and how to best deliver them to ensure every individual has excellent representation with strong defenses. Topics included a survey of pregnancy-related prosecutions prior to the Dobbs decision; the current post-Dobbs laws and prosecutions across the country; medical issues and evidence; journalists discussing media coverage of these cases; large law firm participation; and federal issues, including interstate travel implications to receive healthcare.  The Summit represented a strong end to 2022 for NACDL, as it showcased our commitment to fighting overcriminalization and mass incarceration as the leading voice in the fight for justice. 

As for resources, NACDL immediately addressed member needs by compiling current information  on the ever-changing reproductive legal landscape. NACDL developed an area of its website to host defense resources, including a 50-state resource library{6} 6  The resource library is available at https://www.nacdl.org/PostDobbsResources. to house state-specific research, briefs, data, information related to privacy and ethical concerns, and more. Under development by dozens of law professors and legal experts, this resource library represents an invaluable resource for practitioners, as well as others who want information on their state laws. These resources will be updated consistently as states propose and pass legislation on-topic and more prosecutions take place. 

NACDL is also drafting a litigation manual to aid practitioners in the defense of these cases. Developed by member Andrea Lyon, the manual will likewise prove invaluable to members as they navigate these legal issues. 

Although all of this work represents an arsenal gathered in a very short period of time, there is much more work to be done. NACDL offers so much to the criminal legal system, with limited resources, I might add. If you believe, as I do, that this fight is one we must all take on together, please consider making a donation to NACDL’s Foundation for Criminal Justice{7} 7  Make a donation at https://www.nacdl.org/Content/Support. so NACDL can continue to provide resources and education to the criminal defense community in this new wave of prosecutions.

About the Author

Nellie L. King is the owner of the Law Offices of Nellie L. King, P.A. She practices criminal defense in state and federal courts throughout the United States and lectures on criminal legal reform and constitutional issues. She is a Past President of the Florida Association of Criminal Defense Lawyers.

Nellie L. King (NACDL Life Member)
Law Offices of Nellie L. King, P.A.
West Palm Beach, Florida
561-833-1084
Nellie@CriminalDefenseFla.com
www.criminaldefensefla.com

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