Two Days in the Pillory, Three Years Imprisonment: A Criminal Defense Perspective on a Post-Roe Louisiana

What is the Importance of Roe/Casey/Dobbs?

Roe v. Wade was the first case in the U.S. that announced a right to abortion.² In Roe, the United States Supreme Court announced that the 14th Amendment’s Due Process Clause includes a “fundamental right to privacy” which protected a woman’s choice and decision to terminate a pregnancy.³ The Court considered the government’s interest in both protecting the health of pregnant women and in the “potentiality of human life”, and they considered the privacy right held by a woman seeking an abortion. They concluded that the privacy right of a woman to choose an abortion within the first trimester outweighed any potential state interests during the first trimester of pregnancy. The Court created the “trimester framework” and stated that there was greater State interest in protecting the “potentiality of human life” in later trimesters of pregnancy.

Two decades later, the Supreme Court in Planned Parenthood v. Casey, upheld the right to an abortion, but changed the standard for analyzing the restrictions on that right.⁴ The Court confirmed the central holding of Roe, but abandoned the “trimester framework”, instead allowing states to regulate abortions after the fetus reached “viability”.⁵ The Court held that state abortion restrictions that were created to place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” would be found unconstitutional. This meant that, prior to “viability”, states were not allowed to place an “undue burden” on the fundamental right to a pre-viability abortion.⁶ The Court also officially recognized that states had a legitimate interest in promoting the “potentiality of human life” and would be allowed to regulate and possibly ban post-viability abortions except in instances where necessary to save the life or health of the mother.⁷

Fast-forwarding to the present day, the leaked draft of the Supreme Court opinion in the Dobbs v. Jackson Women’s Health Organization case has sounded alarms for women’s rights and reproductive health communities across the nation. The leaked draft of the opinion revealed that the current SCOTUS majority is poised to overturn Roe and Casey, which would eliminate federal protections of the fundamental right to abortion. The opinion is unsparingly critical of Roe and Casey, calling the decisions “egregiously wrong.” ⁸ It also signals a rare instance of the Court abandoning precedent, specifically precedent that has been respected for nearly half a century. Justice Alito’s argument to support overturning the right to abortion rests on the claim that the Constitution makes no reference to abortion, and, as such, no such right is protected by it. Alito also argues that abortion is not “deeply rooted in this Nation’s history and tradition” and cannot be an implied constitutional right because it is not “fundamental to our [Nation’s] scheme of ordered liberty.”⁹ Finally, Alito argues that the Supreme Court exercised too much power in deciding Roe and Casey, and that the issue of abortion should be left up to the States to decide for themselves through the political process of voting. If a majority of the justices agree with Justice Alito’s views of Roe and Casey, then we can expect a decision overturning the decade’s old decisions within the coming months, triggering a wave of anti-abortion legislation that will take immediate effect in Louisiana and other states across the country.

Current State of Abortion Laws in Louisiana

After the statewide election on November 3, 2020, Section 20.1 was added to Article I of Louisiana’s Constitution. It provides that “nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”¹⁰

Louisiana Revised Statute § 40:1061 is known as the “Human Life Protection Act” or the abortion “trigger law.”¹¹ This law criminalizes abortions in the state and takes effect “immediately” upon “any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby, restoring to the state of Louisiana the authority to prohibit abortion.” This law makes it a crime to cause or aid in terminating the life of an unborn human being. Although the law states that it will not subject pregnant women to criminal conviction or penalties, other laws regarding abortions could allow for criminal prosecution and jail time against women for termination or other outcomes of their pregnancies.

The following statutes are some current laws that criminalize abortion:

14. R.S. 14.32.9 – prosecution of anyone, who is not a licensed physician, that performs an abortion that results in the death of an unborn child.¹² The criminal penalty includes up to 5 years imprisonment at hard labor and a fine up to $50,000.
15. R.S. 14:32.10 – prosecution of any physician or person that performs a partial birth abortion that kills a living fetus.¹³ The criminal penalty is up to 10 years imprisonment at hard labor and a fine up to $100,000.

• R.S. 14:87 – prosecution of anyone that administers or prescribes any substance or use any instrument to terminate a pregnancy, with some exceptions, (however, all abortions after 15 weeks are prohibited¹⁴). The criminal penalty is up to 10 years imprisonment at hard labor and up to $100,000.

87. R.S. 14:87.4 – it is a crime to advertise the availability of abortion services.¹⁵ The criminal penalty is up to 1 year imprisonment and a fine of up to $5,000.
88. R.S. 14:88 – prosecution of anyone that distributes abortifacients or publishes advertisements of the same.¹⁶ The criminal penalty includes imprisonment for up to six months and a $500 fine.

Most notably, Louisiana’s law on criminal principal liability:

1. La. R.S. 14:24, which defines principals to a crime as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.”¹⁷ This law imposes criminal liability and punishment on any individual involved, even minimally, with the process of facilitating an illegal abortion. This statute’s broad scope of liability means that anyone—from the loved one who drove someone to an abortion appointment to the person, if not the patient themselves, that paid for the abortion—can be charged and prosecuted to the fullest extent of the law with the crime or any ancillary crimes of abortion.

How will Dobbs change Louisiana Law?

Louisiana legislators have wasted no time in drafting anti-abortion legislation since the release of the Dobbs draft leak:

• Louisiana House Bill No. 813

This bill, introduced by Rep. McCormick into the House, proposes changes to the legal definition of “personhood” and “unborn child” in La. R.S. 14:2, among other changes.¹⁸ This will have the effect of expanding the definition of a person for Louisiana’s entire legal code, likely increasing the risk of exposure to criminal and civil liability for pregnant women, their loved ones, and medical providers across the state.

Further, HB 813 expressly expands the crime of homicide to include when an unborn child is killed. Currently, feticide laws provide for criminal liability when an unborn child is killed during the commission of another crime. According to the Louisiana Supreme Court, expanding the definition of human being to include the “unborn” is within the powers of La.’s legislature¹⁹, and it would broaden homicide to include all grades of feticide as well, subjecting those charged with far harsher sentences, such as life imprisonment without parole.

Opponents are concerned that HB 813 may criminalize IVF fertility treatment, due to its definition of an “unborn human being” beginning from the moment of “fertilization.” ²⁰ This law could criminalize women or healthcare providers that authorize the disposal of fertilized embryos, as not all fertilized embryos are needed or used during treatment. The law as it stands could expose women who pursue IVF, and providers who assist, to second degree murder or manslaughter charges. Rep. McCormick’s office has not responded to questions seeking clarification on this issue.

It has also not been clarified as to what impact HB 813 would have on birth control, specifically emergency contraceptives, and IUDs. A strict reading of HB 813 and relative criminal statutes seems to indicate that HB 813 intends to criminalize any devices that could prevent implantation of a fertilized embryo in the uterine wall.²¹ Currently, HB 813 has been returned to the calendar and is not anticipated to reappear in its present iteration this session.

• Louisiana Senate Bill No. 342

This bill, introduced by Sen. Katrina Jackson into the Senate, proposes changes and clarifications to the current “trigger law”, R.S. 40:1061.²² This bill adds exceptions for the removal of ectopic pregnancies, for the induced delivery of miscarriages, and for abortion as a medical procedure to remove an unborn child with an irremediable congenital or choromosomal anomaly that is incompatible with sustaining life after birth. Each of these exceptions were absent from the originally enacted 2006 Human Life Protection Act. Both the newly signed bill and the originally enacted statute do not include any exceptions for cases of rape or incest. With the enactment of SB 342, the Louisiana legislature has clarified that life begins at “implantation” as opposed to “fertilization”, meaning that Louisiana women are still entitled to access to drugs and/or devices to prevent implantation of potentially fertilized ovum.

Senator Jackson’s bill gives new teeth to the trigger law by imposing higher fines and steeper prison time on doctors who perform specific abortion procedures after a decision by the United States Supreme Court that overrules in whole or in part the decision in Roe. SB 342 provides for penalties, already enumerated in RS 14:87, and creates new criminal penalties for “late term abortions” that occur after the gestational age of the unborn child is fifteen weeks or more. Physicians who perform an abortion when the gestational age of the fetus is over fifteen weeks, per SB 342, face criminal penalties of hard labor for not less than one year nor more than fifteen years and fines of up to twenty thousand dollars. As of June 21, 2022, this bill has been signed into law by Governor John Bel Edwards, and will receive full force and effect, should a decision from Dobbs overturn Roe this summer.

Concerns going forward into a Post- Roe Louisiana

Post-Roe abortion legislation will lead to sweeping prosecutions of women and women’s health providers in the state. The criminalization of abortion and the proposed legislation that changes the legal definition of “personhood” will undoubtedly most severely impact those already economically or socially disadvantaged and vulnerable groups in our state. In 2021, 7,444 abortions were performed in Louisiana. ²³ Of those abortions, 3,882 were performed prior to 8 weeks gestation; 4,356 were for women aged 20 to 29; 1,474 were for women aged 30 to 34; 599 for women aged 15 to 19; and 27 for women under 15 years of age.²⁴ 6,666 of those abortions were obtained by non-married women. Banning abortion will only force women to seek out unsafe, “back alley” abortions, exposing themselves, their healthcare providers, and loved ones to invasive investigation, harsh criminal punishment, and mass incarceration. Attorneys practicing criminal defense, civil defense, and civil rights law will be crucial in protecting the liberty and livelihoods of the many individuals likely to be directly impacted by the expected wave of anti-abortion legislation.

At this early stage, no one can say exactly what enforcement of abortion bans may look like across states that have differing views on whether a woman has the right to bodily autonomy. Will travel between states be limited or investigated? Will every person of child-bearing age be subjected to a pregnancy test before boarding an airplane from a state that outlaws abortion to one that permits abortion? Will there be border checkpoints? These questions are now becoming reality as various states work to pass legislation in an attempt to limit ability of women to travel to neighboring states for abortions, such as that proposed in Missouri, which would allow Missouri’s private citizens to sue anyone who “aids or abets” a Missouri resident in obtaining an out-of-state abortion.²⁵

Data experts are warning that data collected by health, period-tracking, or pregnancy apps could potentially be used against the individuals sharing it. Privacy policies of most of these apps include exceptions for subpoenas from law enforcement, as they allow that stored personal data to be “potential evidence of [one’s] own criminality, or [their] doctor’s criminality.”²⁶ Digital footprints, such as search or website history, emails, or financial records, are often fair game for use against an individual once in law enforcement possession. Suffice it to say, women all over the nation are likely feeling that they no longer have the “right…to be secure in their persons, houses, papers, and effects.”²⁷

Given the broad attack of the Dobbs leaked draft on the “right to privacy,” it remains possible that the Court could begin chipping away at other “rights” rooted in the “right to privacy.” The “right to privacy” encompasses the legal institution of same-sex marriage (2015), interracial marriage (1967), and the freedom to use contraception (1965). Those who fall into or allied with those similarly situated classes, currently protected by the “right to privacy” precedent that Roe and Casey were based upon, should be prepared to face other substantive rights rooted in privacy also coming under attack. Like reproductive rights, the right to contraception, the right to engage in private intimacy, and the right to marry freely were all largely criminalized prior to action by the Supreme Court in their respective cases. These institutions could be at risk of not being found “deeply rooted” in U.S. tradition and not “fundamental to our scheme of ordered liberty.”

What can be done?

1. Vote:
   1. If the Supreme Court overturns Roe and Casey, the scope of abortion access across the nation will be dependent upon the legislation brought forth by the elected officials of each state. The outcome of local and state elections has not played this vital of a role for access to abortion since before Roe. It is incumbent upon the voters of Louisiana and every other state in the country to actively participate in the entirety of the electoral process—getting involved in primaries, showing up to the polls, and continuously engaging with the representatives after they are elected.
2. Educate yourself on your rights:
   1. With access to the internet at our fingertips, resources are only a click away. Take advantage of the educational information available about your constitutional rights. Research various abortion laws and related criminal laws that could be affected by SCOTUS overturning Roe. Read news on the laws being proposed by La.’s representatives during this Legislative Session. A good understanding of your rights will help you to meaningfully discuss these issues with the people around you and to better advocate for yourself and others.
3. Engage with criminal defense attorneys and activists:
   1. The expected criminalization of abortion is likely to have the harshest impact on individuals who are economically or socially disadvantaged, and will have a sweeping impact in a state already competing as a world leader in mass over-criminalization and mass-incarceration. The broad reach of current principal criminal liability, when coupled with the anticipated laws criminalizing abortions, will expose thousands of women, medical providers, and individuals who may only be tangentially involved in an abortion, to prosecution and conviction. Those affected will need civil rights advocates and criminal defense attorneys who are prepared to zealously advocate for their life and liberty. Find those advocates in your community and join them in working to protect reproductive rights, among others, and in addressing the ever-present and growing crisis of mass-incarceration, underfunded public representation, and other fatal blows within our criminal justice system.

CITATIONS:

1. In 1732, for example, Eleanor Beare was convicted of ‘destroying the Foetus in the Womb’ of another woman and ‘there-by causing her to miscarry.’ For that crime and another ‘misdemeanor,’ Baere was sentenced to two days in the pillory and three years’ imprisonment; Dobbs v. Jackson’s Women’s Health, SCOTUS 19-139 (2022).
2. See Roe v. Wade, 410 U.S. 959 (1973).
3. This “right to privacy” was first established by the Supreme Court in an earlier case on contraceptives, Griswold v. Connecticut, which protected the right of married couples to use contraceptives. See Griswold v. Connecticut, 381 U.S. 479 (1965).
4. See Planned Parenthood v. Casey, 505 U.S. 833 (1992).
5. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
6. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
7. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
8. Dobbs v. Jackson’s Women’s Health, SCOTUS 19-139 (2022).
9. Dobbs v. Jackson’s Women’s Health, SCOTUS 19-139 (2022).
10. See Const. (1974) Art I § 20, Added by Acts 2019, No. 447, approved Nov. 3, 2020, eff. Dec. 10, 2020.
11. See R.S. 40:1061.
12. See R.S. 14:32.9.
13. See R.S. 14:32.10.
14. See R.S. 14:87.
15. See R.S. 14:87.4.
16. See R.S. 14:88.
17. See R.S. 14:24; see also La. R.S. 14:87.
18. See 2022 Louisiana House Bill No. 813, Louisiana 2022 Regular Session.
19. See State v. Brown, 378 So.2d 916 (La. 1979) at 917 and State v. Gyles, 313 So.2d 799 (La. 1975).
20. See Overturning Roe Creates a Tempest for Reproductive Health, https://www.axios.com/2022/05/10/overturning-roe-creates-a-tempest-for-reproductive-health
21. See Plan B, One Step; https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/fdas-decision-regarding-plan-b-questions-and-answers.
22. See 2022 Louisiana Senate Bill No. 342, Louisiana 2022 Regular Session.
23. See Induced Terminations of Pregnancy Reports for 2021from the Louisiana Department of Health’s State Registrar & Vital Records. https://ldh.la.gov/page/709.
24. See Induced Terminations of Pregnancy Reports for 2021from the Louisiana Department of Health’s State Registrar & Vital Records. https://ldh.la.gov/page/709.
25. See Missouri Representative Mary Elizabeth Coleman’s proposed bill seeking to restrict access to out-of-state abortions; https://www.washingtonpost.com/politics/2022/03/08/missouri-abortion-ban-texas-supreme-court/
26. See quote of Danielle Citron, law professor at the Univ. of Virginia and author of “The Fight for Privacy”; https://abc7chicago.com/supreme-court-roe-wade-abortion-ban-states-texas-law/11826539/.
27. See S.C.A. IV.

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