News Release

New Report from Nation’s Criminal Defense Bar Highlights the Threat of Abortion Criminalization

Washington, DC (Aug. 18, 2021) – The National Association of Criminal Defense Lawyers (NACDL) released a ground-breaking report today outlining current legal statutes that criminalize abortion and the impact overturning Roe v. Wade would have on laws to prosecute and incarcerate those providing, receiving, or assisting with abortions.

The Report – Abortion In America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs – was authored by a subcommittee of NACDL’s Women in Criminal Defense Committee: NACDL Past President Nina J. Ginsberg, NACDL Board Member Lindsay A. Lewis, and NACDL Board Representative to the Executive Committee C. Melissa “Missy” Owen. Authors Ginsberg, Lewis, and Owen will be presenting on this report Friday, August 20, 2021, from 1:00 to 1:30 p.m. ET, at NACDL’s virtual (and free) 20th Annual State Criminal Justice Network Conference, which begins today, August 18, 2021. Lynn M. Paltrow, Executive Director of the National Advocates for Pregnant Women served as a contributing author and penned the Report’s Foreword. The Report is intended to call attention to the dramatically increasing criminalization of reproductive health.

“Make no mistake, the United States is on the precipice of a shocking and dramatic expansion of its criminal legal system,” said NACDL Past President and Report Co-Author Nina J. Ginsberg. “With the Supreme Court poised in the fast-approaching term to revisit Roe in the Mississippi case of Dobbs v. Jackson Women’s Health Organization, it is critical that the American people clearly understand the vast criminalization efforts – and the repercussions to so many of us – that are already well underway in many states across the nation.”

“We have been down this road before,” said NACDL President Martín Antonio Sabelli. “We have seen and are struggling to redress the human toll of the ‘War on Drugs’ reflected in mass incarceration, meaning one life after another, one family after another, devastated by overcriminalization. This Report reveals that the ‘War on Abortion Rights’ not only undermines the Bill of Rights but also represents an attempt to legislate the will of a few on the lives of the many, especially the poor and the vulnerable, who will have no real choices, unlike the wealthy. We should learn from our mistakes and resist the overly broad use of criminal penalties to regulate disfavored personal choices that will open the door wide to a new wave of mass incarceration.”

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“This Report...is intended to sound an alarm bell about a wave of expansive prosecutions that will likely follow any significant curtailment or reversal of Roe v. Wade,” writes past NACDL Executive Director Norman Reimer in the Report’s Preface. “A close analysis of existing and emerging state law belies the common perception that enforcement will be limited to abortion providers and irrefutably shows that erosion of a precedent that has stood for nearly half a century may well open the floodgates to massive overcriminalization.”

The Report details the risk that, without protections provided by Roe v. Wade, many states can and will continue to pass laws that further inflame the national crisis of overcriminalization and mass incarceration. Such laws would subject women seeking abortions to extreme criminal penalties, including the death penalty, with women of color and those living in poverty at the greatest risk. The reversal of Roe v. Wade would enable many states to expand upon existing statutes, including trigger bans, heartbeat bills, and “fetal personhood” laws to criminalize abortion and prosecute those involved with charges ranging from child endangerment to murder. The Report outlines the many existing state laws used to police the behavior of pregnant women and prosecute them for pregnancy outcomes. Should Roe be overturned, the act of receiving, performing, and even encouraging an abortion may be added to the growing list of pregnancy-related criminal laws.

The Report finds that the reversal of Roe v. Wade would have a substantial impact on the criminal legal system. Key findings include:

  • Many states are poised to ban abortion and impose harsh criminal penalties on those seeking, obtaining, and performing abortions should Roe be overturned.
  • So-called “personhood” laws, which grant unborn children full legal rights, may be used as the basis for severe charges against those accused of violating abortion bans.
  • Statutes criminalizing abortion would pave the way for mass incarceration of women who seek or obtain abortions.
  • States could make use of existing statutes, including those covering conspiracy, attempt, and accomplice liability, to charge those tangentially associated with an abortion, including individuals who counsel on, fund, schedule, or otherwise assist in the process.
  • These laws will compound the trend of overcriminalization in the United States.

These findings are especially concerning because of the threat they pose to groups already vulnerable to overpolicing and mass incarceration, including poor women, Black women, and other women of color.

This Report expands upon NACDL’s existing education and advocacy work to combat overcriminalization in the criminal legal system. Increased criminalization threatens public defense and judicial systems, targets minorities, and exacerbates mass incarceration. NACDL hopes this Report will educate policymakers, defense lawyers, and the public about the perils of abortion criminalization.

To read the Report, please visit: www.NACDL.org/AbortionCrimReport.

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Contacts

Jessie Diamond, NACDL Public Affairs and Communications Associate, (202) 465-7647 or jdiamond@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.

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