The Criminal System is Not Ready for Abortion-Related Prosecutions

Regardless of your view on abortion, changes in the law and the emergence of a new area of criminal law will necessarily result in unexpected developments.  This feature of the law is nothing new.  Law in general, and criminal law in particular, almost always develops in response to events in the world that require actors – prosecutors, police, judges, and defense lawyers – in the criminal justice system to adjust their practice.

To take an example: the last quarter century development of communications technology – particularly the Internet and smart phones – have changed the way criminal defense lawyers practice in response to changes in law enforcement.  My older colleagues remember the days when the information gathered during a police investigation was limited to some police reports and possibly some photographs of the scene, with witness statements recorded on a tape recorder or VHS tape.

Today any investigation into a major crime will involve thousands of pages of documents, photographs, phone dumps, videos from cameras near the scene, recordings of interviews, social media data from FaceBook, Twitter, apps, and so forth.  And a whole body of law has emerged governing the manner in which devices or data are searched, and how that must be provided to the defense.

The Supreme Court’s overturning of Roe v. Wade this month, followed by the triggering of various laws prohibiting abortion and the potential for new laws to be enacted, including in North Carolina, banning or further limiting abortion, means that we can expect a body of law to be developed around prosecutions of abortions.

What will that look like?

First, expect that various laws that prohibit the travel of residents from one state to another to procure an abortion to produce jurisprudence around the issue of venue and jurisdiction. Prosecutors have long defended the power to prosecute citizens who travel from one location to another to commit a crime.  Such prosecutions – whether to prosecute Americans who travel abroad to engage in human trafficking or prohibited sex-related content – sometimes happen at the federal level.

But such prosecutions can also happen at the state level: for instance, people plan to travel from North Carolina to South Carolina to commit a kidnapping may potentially prosecuted in North Carolina, South Carolina or federal courts, and in any courts through states where the travelled and potentially did things in furtherance of the crime.

Similarly, it would not be a bizarre concept for a state to maintain that the travel from one state to another to procure an abortion is a crime in the originating state where a ban on abortion exists. There may be proof problems: proving that the person traveling intended to do so for the purpose of having an abortion.  But there would not at first glance be a legal issue, assuming that the initial planning for the abortion began in the banned state.

Second, there will be medical-legal issues.  Take, for example, states that have abortion bans, but exceptions for cases where the pregnant woman may die from carrying the baby to term raise difficult issues for the woman and her doctors.   Any doctor knows that as much as medicine perceives itself to be a science, determinations about how close a person is to death are difficult to make.

Since doctors can’t always make clear determinations, and even reasonable doctors can disagree, having these decisions subject to legal determination by lawyers who are even less well-equipped to make these determinations and juries which are complete crapshoots is scary for the medical providers.

Take, for example, the forty-year history of Shaken Baby Syndrome cases, cases that spiked in occurrence in the 1980s and 1990s, driven by bad science.  While it is clear that some babies are victims of terrible abuse, Shaken Baby Syndrome prosecutions persisted for decades based on the misunderstanding of the science, and driven by well-meaning but misguided prosecutors and well-meaning but poorly trained doctors.  Women were imprisoned who were almost certainly innocent.  Others were prosecuted (including one I defended in Wake County in 2013) and won their innocence, but not before having their lives forever turned upside down.

Abortion-related prosecutions will be similar.  Doctors will be called in to testify, after the fact as experts, about whether an abortion was medically necessary, with a recently pregnant woman’s cell phones, computers combed through for evidence that she may have contemplated ending the pregnancy during a moment of self-doubt or depression.

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