SCOTUS and the New Old Criminal Laws

The Supreme Court’s decision overturning Roe v. Wade this month will result in a cascade of new criminal issues across the country and in North Carolina.

Consistent with Roe‘s ban on prohibitions of pre-viability abortions, North Carolina’s criminal law carves out an exception that permits abortion during the first 20 weeks of pregnancy in N.C.G.S. 14-45.1:

(a) Notwithstanding any of the provisions of G.S. 14-44 and 14-45, it shall not be unlawful, during the first 20 weeks of a woman’s pregnancy, to advise, procure, or cause a miscarriage or abortion when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Health and Human Services to be a suitable facility for the performance of abortions.

North Carolina’s Reconstruction Era criminal law prohibited the use of drugs or instruments to destroy an unborn child in N.C.G.S. 14-44

If any person shall willfully administer to any woman, either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or other substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, he shall be punished as a Class H felon.

And prohibited the use of drugs or instruments to produce a miscarriage or injure a pregnant woman in N.C.G.S. 14-45:

If any person shall administer to any pregnant woman, or prescribe for any such woman, or advise and procure such woman to take any medicine, drug or anything whatsoever, with intent thereby to procure the miscarriage of such woman, or to injure or destroy such woman, or shall use any instrument or application for any of the above purposes, he shall be punished as a Class I felon.

Strikingly, the 19th century laws prohibiting abortion were far less punitive than the laws now being passed in various states prohibiting abortion.

In N.C.G.S. 14-23.2, passed in 2011, signaled the general tenor of the times, making it a Class A felony (the same as murder) to cause the death of an unborn child.

You can expect that if the Republicans get a veto proof General Assembly, they will once again make pre-viability abortions illegal, imposing harsh punishments.

Was a miscarriage a tragic and traumatic event, or a the result of a woman’s decision to have a surreptitious abortion?  And who will make that determination?  The answer is, depending on your local District Attorney, the police detective who obtains a search warrant for the woman’s computer, phone, and google searches.

In the coming years, prepare for a dramatic expansion of criminal laws and processes into what was once thought to be a private sphere.

More broadly, Clarence Thomas’s concurrence signals that a whole host of other rights supported by the Supreme Court’s 100 year substantive due process jurisprudence may be on the chopping block, thereby reviving certain criminal statutes that have lain dormant following decisions such as Lawrence v. Texas, which struck down laws against sodomy.

For instance, various sexual acts are deemed crimes against nature, punishable as a Class I felony under N.C.G.S. 14-177.

Co-habitation – that is living with a significant other in an intimate relationship – is illegal under N.C.G.S. 14-184, and only currently unenforced because of the privacy rights that Justice Thomas does not believe exist in the federal constitution.


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