The Role of Public Defenders if Roe v. Wade Is Overturned
TIt is not new that the debate on fetal rights continues. At most 38 states, at present, have some form fetal-harm legislation in place. This makes it illegal to harm a fetus. Unter Roe v. WadeThese laws must be followed to allow abortions to be protected from being punished. If you disagree, however Roe is overturned – and a leaked draft of a Supreme Court opinion suggests that’s a real possibility – the landscape of protection will change dramatically.
If Roe falls, the Court’s attack on our rights won’t stop at medical clinics. It will rip through courtrooms throughout the U.S., as people with uteruses try to defend themselves – and their liberties – against the patriarchal jaws of the legal system. Women could be held responsible for acts that may endanger the lives of their foetus, as well as the anti-abortion trigger legislations and other vicious laws being discussed around the country. Prosecutors can also claim that the painkiller she used to treat a headache is an abortion drug. Cops might claim that an accident in a car, failure to follow the medical advice or an awful fall down stairs were all attempts at an abortion. Even a skeptical – or racist – nurse could report a patient in the midst of a miscarriage to law enforcement, alleging that her bleeding was the result of an abortion. You already have this type of junk science in the family court. We can expect it to increase here.
If a person can afford a lawyer, they can likely travel outside their state in order to get health care. For example, a woman living in a red state who wants to end a pregnancy and who has enough money may be able go to another state. Additionally, our criminal legal system is designed to entrench privilege and power: the wealthy, white woman coming to her doctor’s office in the midst of a miscarriage is much less likely to have a suspicious receptionist call the cops on her than a low-income Black or Brown person. We know this because we’re now operating at the intersection of the existing bias within our medical system and the toxic racism of the criminal legal system — a combination which, like our current family policing system, is most likely to target women of color.
We can therefore expect that the majority of criminally charged individuals for illegal abortions, or other wrongful charges based on their pregnancy outcomes will be represented by public defenders. It’s worth noting that 80% of accused people are represented by public defenders or other court-appointed counsel, and as the wealth gap increases, this number will only rise.
Given this unusual infringement of basic liberties it must be our first priority to allocate resources for providers and funding. To protect as many people from the criminal effects of these cases as possible, we must also immediately involve the public defense community.
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More than half of abortions in America are now performed by medication. Progressive activists and officials worked for many years to counter this trend. The simple act of sending an abortion pill to someone in a red state could be considered criminal conduct if abortion is made illegal.
Thankfully, this won’t stop abortion-rights activists from doing so. The result will be cases that stem from the possession or distribution of drugs as well as those that arise from illegally obtained pregnancy outcomes. Businesses seeking to understand how their efforts to distribute abortion pills could spur prosecutions should spend the time and resources needed to connect with public defenders in conservative states and gain a better understanding of what activities fall within the bounds of the law and what potential outcomes lie ahead for both the business and prospective abortion recipients—and how to mitigate the risks.
Public defenders help clients access confidential care, such as treatment for substance abuse and mental disorders. Many of these offices are already connected to health care services. These networks must be used to offer legal advice to anyone who may face prosecution for providing health care services to women. These people include not only providers (many may retain their own counsel), but also patients, loved ones, Uber drivers and information networks that mutual aid.
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Also, our clients are more likely than ever to become pregnant unintentionally. Whatever their charge, they will be navigating police and jails – as well as their own housing, employment, and treatment needs – while carrying a baby they did not plan or want to have. In short, we’re going to be defending new types of charges, but also need to be doing more for our clients accused of crimes unrelated to their pregnancies. We’ll need to expand access to counsel, increase forensic expertise, provide more interdisciplinary care like health-services navigation and help clients access a broad array of social supports.
Many of these post-modern innovations are new.Roe cases will look familiar to public defenders: medication-possession cases that boil down to holding a couple of pills. This means the legal fate of those charged for seeking out or receiving abortions will come down to one main thing – evidence. App data. You can search Google for it. Packaging. Materials that have been left after an abortion are not allowed to be used again. Public Defenders possess the skills to help pro-abortion groups build necessary safeguards. Additionally, they have Fourth Amendment experience that can be used to obtain illegally obtained evidence.
Protecting those who want to end pregnancies requires that we double down our fight for legal aid earlier. Early access means that someone can seek the advice of a public lawyer before they are made criminally guilty. This would look like giving a newly pregnant, terrified, low-income person the ability to call a public defender when they aren’t sure what paths – legal or otherwise – lie before them. Being charged with a crime shouldn’t be a prerequisite to receive legal advice. After all, it’s not uncommon for wealthy Americans to have lawyers on retainer, and many call their lawyers whenever their hearts desire.
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Funding for internal forensic experts is essential. Most abortion cases boil down to disputes about certain medications and herbs, or whether miscarriage is caused by them. Cross-examination of prosecution-side doctors and chemists who believe they can link miscarriage and a specific drug will be possible by public defenders. They will also need to gain a greater understanding and access to more labs.
Finally, this attack on our bodies will also constitute an attack on this country’s poorest and most vulnerable families. Family defense must be strengthened to ensure the protection of not just child-bearing parents but their children as well. After all, in a state where abortion is illegal, a pregnancy loss and subsequent charges likely will put a parent’s custody of their children at risk — particularly if that parent is a low-income person of color. To strengthen family defense, we must increase state funding for family defenders or build family-defense divisions within existing public defenders’ offices. By reducing wait times that parents must endure to obtain free lawyers, parents can be helped limit their life-altering separations while also navigating legal abortion charges.
These days, it’s easy to forget that anyone once saw the Supreme Court as an apolitical body ensuring American people the promise of equal justice under law. Public defenders will continue to use all resources available to defend citizens from government overreach, as long as there is the Sixth Amendment. Our support is crucial now more than ever.
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