Abortion Legislation and the Diverging States

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics
Abortion Legislation and the Diverging States
06/21/2018

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 Farah Diaz-Tello: Even though these laws don’t have specific provisions targeting women who end their own pregnancies, we know that this will unfortunately provide fodder for prosecutors who are intent on finding a way to punish people for ending a pregnancy and then they also just on a practical level are creating fear and apprehension right now.

 

Amy Swearer: You are seeing sort of that extended reasoning of you have a living human being, we are going to consider this a person by virtue of the fact that it is a living human being and we can’t really distinguish between different stages of development in the life of a human being and so we have extended that all the way to the very beginning, and at that moment of conception Alabama has taken the position that this is a human being with an inherent right to life and the state is going to protect that interest.

 

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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Laurence Colletti: Welcome to Lawyer 2 Lawyer on Legal Talk Network. I am Laurence Colletti, Executive Producer and frequent contributor to our blog. I am standing in for our regular host Craig Williams. We have got quite a show going on today, but before we get into the topic, I want to thank our sponsor Clio.

 

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This year and in recent months there has been a rise in abortion legislation within the United States. Notably Alabama, Georgia have passed pro-life laws like the Heartbeat Bill, while conversely, New York and Vermont have passed pro-choice legislation like the Reproductive Health Act.

 

Today on Lawyer 2 Lawyer we will discuss these recent trends in abortion legislation, the potential involvement of the Supreme Court and the impact this brewing conflict will have on both Americans and the law.

 

Here to discuss today’s topic is Amy Swearer, Senior Legal Policy Analyst in the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Welcome to the show Amy.

 

Amy Swearer: Thank you so much for having me. It’s great to be here.

 

Laurence Colletti: And also joining us is Farah Diaz-Tello, reproductive rights attorney and Senior Counsel for If/When/How, where she develops and executes litigation strategy and assists state and grassroots partners in reaching their policy goals. Welcome to the show Farah.

 

Farah Diaz-Tello: Hi. Glad to be here.

 

Laurence Colletti: Excellent. Well, thank you so much for joining us ladies. It’s a pleasure to have you here.

 

Anyway, I wanted to just start off with covering some of the road map of the issues that we are going to discuss today and ask you a couple of questions. The goal being with these first couple of questions is to give the audience a reference point on where you are coming from.

 

So some of the factors we are going to cover today, we are going to cover the rights of the unborn versus reproductive rights of women. We are going to talk about health and well-being of the mother, viability of the unborn, criminal and civil liability related to abortion legislation and then of course we will be touching on Supreme Court cases versus new state legislation.

 

So let me open up with just a couple of real simple questions that give us that reference point to start with. So my first question, are you pro-choice or pro-life? Let’s start with Amy.

 

Amy Swearer: Well, certainly coming from The Heritage Foundation, we represent a very pro-life position. That’s not to say that the government should be involved in all of the choices that individuals make on a daily basis, but it is to say that the government has a very legitimate and compelling interest in protecting human life. In fact, that is one of the most legitimate purposes of government and that at the end of the day it is this compelling interest that ought to be protected above and beyond any sort of privacy interest, whether it’s with regard to an unborn child or whether it’s with regard to a fully grown adult human being, that the life of that human being is inherently valuable and should be protected as a government interest.

 

Laurence Colletti: All right, then same question, pro-life, pro-choice, Farah?

 

Farah Diaz-Tello: So I would say that If/When/How is in support of reproductive justice, which includes what most people would think of as the pro-choice position, but really what it means is that everybody has the rights and resources that they need to determine if, when, and how to create and sustain families.

 

So what that means is that we envision a system in which everyone can self-determine their reproductive lives, free from discrimination, coercion or violence and that people who end a pregnancy are able to do so safely with dignity and without fear of punishment.

 

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Laurence Colletti: So I have a follow-up question, kind of dialing in the perspectives here. So obviously we are on different sides of the debate and I want to give both sides equal amount of dignity as we discuss it.

 

And so viability, and so I am asking a viability question and I am coming to it from the framework of when do we as a people, we as a state or governing bodies need to step in and protect new life. And so obviously kind of the classic examples from the pro-life side, at the moment of conception you want to apply those rights to protect a new life. Conversely, on the pro-choice side, it’s after birth.

 

And so I just want to get kind of the exact wind from the position you are taking and let’s turn once more first to Amy.

 

Amy Swearer: Sure. So to kind of answer at least what I understood your question to be is that from a pro-life position, there doesn’t seem to be a rational distinction between different stages of development of human life, that if the interest is in protecting life, the only determination that matters is when that life begins. So in essence, one is a human being created.

 

This use of the standard of viability, I think even the court itself at times has recognized is a bit arbitrary, that it’s a standard that doesn’t really have a rational relationship to human development as much as it does to technological development, that the age of viability can increase or decrease simply depending on medical trajectories and not necessarily on development itself. And that again ultimately if we are talking about the interest being in protecting human life, it comes back down to when is a living human being not a person who is protected and can have that life interest protected, and viability doesn’t really seem to have a rational relationship to that distinction.

 

Laurence Colletti: All right. And Farah, same question, just kind of want to get where you are coming from on the viability issue.

 

Farah Diaz-Tello: Yeah. So I would say that I agree with Amy in that viability is not particularly a useful distinction. When we are asking the question of when the state has a responsibility to protect life, from a human rights perspective, certainly the state always has a responsibility to protect life and to promote health. Now, that doesn’t necessarily translate into the state prohibiting abortion, and what we see unfortunately is in the name of protecting life, states enacting policies that have ramifications for pregnant women, they go far beyond the implications for abortion.

 

So when the state decides to control the actions of pregnant women in the name of fetuses, that really implies all of the decisions they make about their pregnancies, not just the decision of whether or not to carry the pregnancy to term, but even how they give birth and things that they decide to do or not do during pregnancy.

 

So really the best way that the state can protect life and ensure the well-being of newborns and infants and mothers is by providing supportive services and ensuring that everybody has the healthy environment and the resources they need to be able to have a healthy pregnancy and the best start at life.

 

Laurence Colletti: As we discussed, our show today is going to cover some of the new state legislation that’s been coming out in 2019 and it seems that the states are diverging apart, and so they are coming at this from two different perspectives and that gap between them seems to be widening.

 

But before we get into the specifics of which state is doing what, what I want to do is just establish foundation for the Supreme Court. And so in my research in preparing for the show two main cases seem to jump out at me and both were 1973 cases. Of course the first one would be Roe v. Wade, which is popularly recognized as the case that gives Americans the right to abortion.

 

And the second one is Doe v. Bolton. So Doe v. Bolton helps in terms of abortion rights, it helps kind of define what is meant by health and well-being and the states utilize that meaning to apply some of their abortion laws.

 

And so what I wanted to do was, and I think I am going to turn the microphone to Farah on this one. I want to get a little bit of just kind of a tour of Roe v. Wade, a little bit of the facts and then just kind of, if you can, lead us to where that right to abortion came in. And then obviously Amy, I will open it up for your reaction as well.

 

So Farah, if you could just tell us a little bit about Roe v. Wade 1973.

 

Farah Diaz-Tello: Sure. So a lot of folks may be familiar with the story of Roe versus Wade. There were abortion prohibitions in Texas that really provided very few avenues for women who needed to end a pregnancy to be able to do so. And so the law was challenged on a number of constitutional grounds and eventually where we ended up is that the right to abortion, the jurisprudence, as we know it now, is really seeded in the Fourteenth Amendment and in sort of the penumbral rights of privacy.

 

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But one of the most important things about Roe that most folks may not be aware of is that one of the questions that the court answered in it was the question of whether a fetus becomes a person, and what the court did was it looked at the landscape of the United States, the abortion laws in place at the time, at the history of abortion laws, which historically had actually been rather permissive and said that, taking all those things into consideration, a fetus should not be considered a person for the purposes of the Fourteenth Amendment, because then the court would really be in this untenable position of having to weigh the rights of one person against the rights of another.

 

And I think that part in particular was very prescient, because it importantly recognized that pregnant women should be able to retain all of the same constitutional rights to bodily autonomy, essentially all of their dignitary rights throughout the entire course of their pregnancy.

 

So what we have been seeing in the most recent legislation is an attack really on that central premise, that a fetus isn’t considered a person under the Constitution and that has sweeping ramifications that go beyond abortion and really affect everything that a pregnant woman does or doesn’t do.

 

Laurence Colletti: And so Amy, I know that challengers to the validity of Roe v. Wade giving abortion rights attack it on constitutional grounds and so what is your assessment of the value of Roe v. Wade in terms of creating a right to abortion?

 

Amy Swearer: Well, I would actually agree with Farah in the sense of what Roe did and one of the problems that the court recognized there, which is that if you recognize an unborn human being as a person, you then have a problem with any sort of law or allowance of another human being to then take the life of that person outside of any sort of due process or anything of that nature.

 

But what I will point out is that part of the reason the court decides under the Fourteenth Amendment this is not a person is that, it says we are not going to delve into this question of when life begins. But there is also in there what some people have referred to as the collapse clause of Roe v. Wade, in which it essentially says, but if we were ever to determine that this is actually a living human being, that this is when life begins, well, then we have to address this problem. Unfortunately, the court has not since addressed that problem.

 

And I would actually point to Casey, Planned Parenthood v. Casey as really the case where that the court recognized okay, we need to find sort of another avenue of dealing with this issue and they kind of changed it from this question of when life begins and personhood and the personhood of the fetus, to really looking at it more from a question of well, we have decided this based on precedent and we are just not going to touch that question again.

 

So I would kind of point to that distinction really as something that is important when we start talking about both other cases and legal avenues outside of abortion where states have protected that the rights and interests of the unborn child in a rather personhood-oriented way.

 

But then also as being important when we start talking about some of these abortion prohibitions and earlier restraints on abortion in these new statutes that have come up in the last year or so as some of the underlying motivations for that are states and legislature saying, well, based on all of these scientific changes and insights that we have had since the 1970s and 1980s, we are going to take on this question of when does life begin. Because if this is a living human being, then it’s kind of hard to say well, we have a living human being who is not also a person.

 

Laurence Colletti: Okay. And so before we get into some of the state aspect, the new regulations, the new laws that are coming into place here, I want to talk about Doe v. Bolton because a lot of what the state utilizes to provide meaning to some of its legislation comes from there.

 

And so Amy, let me just turn right back to you on that one. Can you tell us a little bit about Doe v. Bolton 1973 and what aspects it adds to the legislative bodies that be in the different states regarding abortion?

 

Amy Swearer: Sure. So Doe v. Bolton came on the heels of Roe v. Wade. It in many respects upheld Roe v. Wade. The court reiterated that there is a protected right to privacy which applies not just to abortion, but to all sorts of things like marriage and procreation. But the main part of this that I think you are getting at is the part of the Doe v. Bolton opinion that focused on abortion after viability being allowed and constitutionally protected, if necessary to protect the health of the mother.

 

And the court kind of gives this broad definition of health, where if in the professional opinion of the doctor this is a medical judgment that can be exercised in light of a bunch of different factors; so not just physical, but emotional, psychological, familial, I believe the woman’s age was included in there, that all of these things are sort of factors to be taken into account when we are talking about the health of the mother in terms of abortion after viability. And so states have kind of used that as really these broad factors for determining when abortion is acceptable in terms of viability — after viability.

 

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But this is something that federal courts have also struggled with back and forth that there is not a very clear definition of what it means in terms of what is encompassed in the health of the mother. And so you have seen some states kind of take it upon themselves, such as with New York and their recently enacted legislation, where again you are just seeing this broad package of factors that are involved in that. But then you are also seeing other states, again, with some of those more restrictive legislations, where it’s really narrowing it down to cases of where the mother’s physical health and safety is impacted.

 

And so again this has been something that has not really been narrowed down within the federal courts since that sort of broad factored definition.

 

Laurence Colletti: And Farah, do you agree with that assessment?

 

Farah Diaz-Tello: Overall I would agree with that assessment. I think the thing that I would add to it is that it really underscores the importance of looking at the individual circumstances of the person who is seeking the abortion, and that’s something that we see here in New York and in elsewhere, people who are making decisions about abortion later in pregnancy, there are a lot of factors that they are taking into account. So that may be a lack of viability on the part of the fetus or potential health concerns on the part of the pregnant woman.

 

And so that’s why it’s important that there be avenues for people to be able to seek abortions. I mean certainly it’s not a decision that anybody takes lightly, especially later in pregnancy, so ensuring that they are able to do so is critical to women’s health.

 

Laurence Colletti: All right, before we move on to our next segment and continue our conversation, we are going to take a quick break to hear a message from our sponsor.

 

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Laurence Colletti: Welcome back to Lawyer 2 Lawyer, I am Laurence Colletti. And we are joined by Amy Swearer, Senior Legal Policy Analyst in the Meese Center for Legal and Judicial Studies at The Heritage Foundation and reproductive rights attorney Farah Diaz-Tello, Senior Counsel for If/When/How, and we will continue our discussion about abortion legislation more so from the state’s perspective.

 

And in part one, the first segment, we got into the foundation, we talked a little bit about Roe v. Wade 1973 and Doe v. Bolton 1973 as establishing the right to abortion, but also provided, more so from the perspective of Doe, leading to some of the legislation that was going to come later.

 

So ladies, I would like to transition into what’s been going on here in 2019, and I agonized over this, how to put this together in a way that makes sense and I think chronology is important in this case to explain it. So what I want to do is open up with New York’s Reproductive Health Act, which was signed into law by Governor Cuomo back in January 2019.

 

And so what I would like to do, and I think I am going to turn to Farah for this, can you give us a tour of what’s included in that new law and then walk us through some of the features?

 

Farah Diaz-Tello: Sure. So to understand the Reproductive Health Act, first you have to understand New York’s abortion law and its history. So New York was one of the first states to liberalize its abortion law prior to Roe v. Wade, actually in 1970, and permitted abortion at a time when certainly not all states did. And when that law was written, it was considered very progressive, but then I guess the law just stayed there, became calcified and was not updated since then.

 

So there were aspects of the law that were no longer consistent with Supreme Court jurisprudence. For example, it didn’t have an appropriate exception for the health of the pregnant woman. So what that meant was that people who were seeking abortions often would have to leave New York, would have to go to Maryland or Colorado to get later abortion care. And hearing the stories of those families and what they had to go through to get the care that they needed was something that was I think — not only was profoundly moving to me, but was profoundly moving to the legislature.

 

But really the most important part of the change to New York’s law is something that’s within the focus of the strategic initiatives that If/When/How works on. It repealed the criminal laws regarding abortion. So the way that legal abortion was situated within New York law at that time is essentially an exception to the crime of criminal abortion in the first and second degree. It’s really interesting to think about a state with fairly good abortion access like New York criminalizing abortion.

 

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But worse than that actually, New York was one of only, at the time, seven states that still retained a law that criminalized people for ending their own pregnancies. And that’s really where our focus is at If/When/How is ensuring that people who end their pregnancies can do so without fear of being arrested.

 

And that law, even though it was an antiquated law, that didn’t even really have any legislative record supporting why the legislature in the 1850s had adopted to criminalize people who ended their own pregnancies was still being used, even as recently as 2011, a young woman in Washington Heights was arrested for allegedly drinking a tea to end her own pregnancy.

 

So from our perspective, the most important changes were the repeal of the Criminal Abortion Law, which then meant that physicians who need to provide later abortion care to their patients didn’t have to worry about being criminalized. But then also the repeal of those self-abortion laws, making sure that people who end their pregnancies don’t have to fear arrest.

 

And so thankfully, not only did New York repeal its criminal abortion law, Nevada also recently did so as well. So we are seeing a trend in states removing these laws that can be used to criminalize people for ending their own pregnancies.

 

Laurence Colletti: So Amy, my understanding of what I read about New York’s new Law here is that it opened up the third trimester abortion options under certain conditions. Now, critics of the law claim that the restrictions are not meaningful, meaning that basically third trimester abortions are allowed without restrictions even though it’s claimed not to be the case.

 

And from the perspective of The Heritage Foundation, what are you guys weighing on that?

 

Amy Swearer: Right. So a controversy that comes up with this opening of third trimester abortions, especially in the context of the New York law, is that it legalized abortion either in the absence of fetal viability or at any time during the pregnancy when “necessary to protect a woman’s life or health.” The problem is that it really left those factors of a woman’s life or health undefined.

 

Now, I think generally speaking, many people would agree that, and I think even most people would agree that when a mother’s life is literally at risk and it’s a question of whether the mother is going to live or die that this is a very tragic decision, it is a hard decision, an enviable decision that we should have very much compassion and empathy for, and that that is not inherently wrong in that context of choosing between the mother’s life and the child’s life.

 

The problem is that, again, back to this question of Doe v. Bolton, how are we defining health, because technically this could be defined broadly to include just things like well, if I have this child, I will be depressed. It will detrimentally impact my emotional well-being to a certain extent and that really all it would take is a doctor to make that determination of yeah, well, even though this fetus is viable and in any other capacity is protected under state murder statutes, protected under tort, criminal or property law or anything of that sort, well, in this context this viable fetus can be destroyed, terminated, this human being can — this life can be ended for something as kind of subjective as a woman’s mental health.

 

And that’s not to say that women’s mental health is not important, it certainly is, but it’s again just that weighing of the factors of this is a human life that we are talking about.

 

And so it seemed to be opening the door to allowing women to end the life of their unborn child based on rather subjective and maybe wishy-washy factors that don’t rise to what most people would think of when they say to protect a woman’s life or health, that it kind of opened up that door underneath for more subjective situations.

 

Laurence Colletti: I want to give Farah a chance to respond to that. So Farah, obviously supporters of New York’s Reproductive Health Act don’t see it as so flexible, wishy-washy standard which just allows abortion late-term without any restrictions. I just wanted to give you a moment to weigh in on what Amy just said there.

 

Farah Diaz-Tello: Yeah. I think the really important aspect to think about here is that it’s a reiteration of the fact that the woman’s health is always paramount, and that’s something — not having had that in New York’s law before was really detrimental in ways that go beyond women who are having abortions.

 

So for example, the fact that New York had a criminal abortion law that prohibited abortions after 24 weeks was used to criminally prosecute a woman who was in a car accident on Long Island and gave birth to a baby who was born alive, but then died a few days later, on a theory that because the state deems to protect fetuses through this abortion law, then that means that women can be criminally prosecuted for things that they do with respect to their own pregnancy.

 

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The law was also used against a woman in Staten Island who wanted to have a vaginal birth after cesarean and the hospital essentially argued that because the State has a right to prohibit abortion past a certain time, that the hospital a private entity could then force a woman to undergo a cesarean surgery against her will without even seeking legal process.

 

So the idea reiterating in the law that women’s health is paramount is important because obviously it’s a message that prosecutors that healthcare providers need to hear that women retained their old constitutional rights throughout the entire pregnancy and a big part of that is respect for their health.

 

Laurence Colletti: So before we transition out of New York’s Reproductive Health Act, there was one thing that grabbed my attention in regards to what is contained within that one, I think it’s actually similar although it applies to different areas of law for some of the other legislation whether it’s the Heartbeat Bill State, or Alabama’s Human Life Protection Act, or Vermont’s New Law which I believe just came into play June 10th

 

But one of the things I thought was really interesting was that as part of New York’s Reproductive Health Act they repealed the act of criminalizing harm to children in the womb, meaning if a pregnant woman is on a subway and is assaulted, god forbid and then she ends up losing her unborn child, there is not a criminal penalty associated with the loss of the unborn child, now of course there would be criminal penalties for the injuries suffered by the pregnant woman but in terms of the loss of the unborn child there’s nothing that you can pursue in terms of New York Law.

 

And I thought that was interesting because that seems to be a linchpin issue for both sides of the abortion debate, in so recognizing the loss of an unborn life triggers some other possible consequences down the road. And at this transitions into these other State Laws into the Civil, into tax remedies and so I wanted to kind of leave that on your doorstep before we transition over to the heartbeat bill state and I want to talk first with Amy on that, that linchpin issue, have you noticed that as well with these differing abortion laws?

 

Amy Swearer: No, absolutely, it’s certainly that distinguishment in the law a lot of times between how some states treat the life and the interests of the unborn child in the abortion context versus in other context in criminal and civil law. There are certainly is that disparity there within a lot of state laws and it’s sort of in irrational disparity. And so the way that New York dealt with that is by sort of equalizing it across the board, by taking those interests out of the other criminal law contexts, which in a sense again makes rational sense. The way that our states have dealt with it is by trying to say, well, we’ve given rights of personhood essentially either through fetal homicide laws, through wrongful death laws that protect unborn children, a lot of times from conception that because we’ve expanded those, we’re opening up again that, that conversation of when does life begin, when is — when is a living human being a person. And that the way those states have dealt with it is by then lowering the threshold in terms of abortion law of when that life can be protected under abortion law.

 

Laurence Colletti: It’s fair. I wanted to give you a moment to respond to that, do you agree with that sort of linchpin nature of some of those ancillary laws that kick in when it comes to rights or consequences for harming the unborn, whether it’s through taxes, or through civil, or through criminal?

 

Amy Swearer: Yeah, so I mean I would start out by saying that it’s a common misconception that there is no crime that a person can be charged with or causing harm to a fetus in New York. And I think the misconception really stands from misunderstanding of what the purpose and intent of the criminal abortion law was, and when you look at the history of that law and why it was passed it wasn’t really intended to protect fetuses, it was intended to protect pregnant women from people who were essentially saying that they were abortion providers, who were providing substandard care. And that was a law that was really urged and enacted by the medical community, the Nascent American Medical Association to police the boundaries of what it meant to be providing an abortion and that’s why the law had digged into it the idea of a justifiable abortion or the legal abortion.

 

So that law is never one that should have been applied to somebody who assaults a pregnant woman on the subway, and there were certainly court decisions on that saying that when the Legislature says abortion, they mean an abortion, they don’t mean an assault against a pregnant woman.

 

So New York is one of the states that retains the Born Alive Law and so what that means is that when people commit acts of violence against pregnant women and would cause them to lose their pregnancy or some sort of harm to the pregnancy that’s treated first and foremost as a crime against the pregnant woman which is exactly what it is and that’s how the law should treat it. And what we see across states that have laws criminalized harm to fetuses, is that unfortunately those laws often get turned around and used against the very women who are carrying those fetuses, the pregnant women themselves and that occurs not just in states that fail to account for the possibility that prosecutor might misuse the law in some way, but even happen in states where there are clear exceptions that say that if we’re going to prosecute harm to fetuses, we’re going to make sure that we’re not going to sweep up pregnant women in that prosecution.

 

And we know that from 1973 until the present day there have been more than a thousand women across the country who’ve been prosecuted under this theory, essentially perversion on Roe versus Wade saying that if the State can control whether a person can end the pregnancy then they can also punish a person for not carrying the pregnancy to term in the way that the State deems correct.

 

Laurence Colletti: Well, so I think that’s a great place to transition into our heartbeat bill states, and so I lumped several states into this one category, not every State is going to be the same. At my account we’ve got Missouri, Mississippi, Louisiana, Georgia and Ohio that have signed into action these laws that are commonly referred to as the Heartbeat Bills, and so they share a lot of similar characteristics and I want to kind of walk through that and so, the first one is as they layout sort of a demarking period, before this we’re going to allow abortion, but beyond this — beyond a level of viability and in most of these states is defined as a heartbeat, when a heartbeat can be detected which according to the science that I’ve been reading about is about eight weeks.

 

And so at that point forward then you cannot get an abortion unless you meet within certain exceptions, and then in addition to that demarking period that they wanted to make more clear in these states, they’ve added some criminal penalties to this, some civil liability, but they’ve also opened up some tax benefits, some tax deductions for expecting families and so that kind of gets into that linchpin issues that we were talking about before in so recognizing with different aspects of the law, perhaps from the pro-life perspective, adding a little bit more meaning to the unborn life in a way that becomes enforceable and perhaps something that gets more recognized.

 

And I know that’s a big wind up there, but I want to hand that over to Amy to give us a little bit of the 50,000 foot on these heartbeat bills and then we’ll get into it from there.

 

Amy Swearer: Sure, so as you said there are four states at least recently that have enacted Fetal Heartbeat Bills which would prohibit abortion, essentially somewhere between that six to eight-week window, what’s interesting about these efforts compared to previous efforts at this is that states like Louisiana have not included exceptions for rape or incest, that it’s just exceptions for the life of the mother, and what’s interesting about this is when you look at it from a — I hesitate to use the word “tactical”, but from a judicial philosophical standpoint, the reasoning seems to be again this reorientation of the arguments into this question of when does life begin, when is this a human being, and to take away that distinguishment of if this is a human being, if this is a living human being who is a person, that personhood is not dependent on the means of conception whether it’s rape or incest. And that while those things are horrific, I mean — and certainly crimes that should be punished, that punishment not fall on the unborn child. It not be taken into account for determinations of personhood.

 

And so it’s actually a quite interesting and I think more rationally coherent conception of that argument that we’ve seen repeatedly start coming to the surface in these sort of pro-life initiatives of really focusing on that concept of personhood and when a human life is protected.

 

So, I think that’s the biggest new development in some of these new initiatives, but it’s also important to note that at least as far as I’m aware, none of these laws have yet got into effect. I know several of them have been blocked and have appeals pending, though I think there was still one that was set to go into effect but maybe blocked I believe in Missouri, but thus far none of these have actually gone into effect.

 

Laurence Colletti: So, Farah, I think from the pro-choice side of the equation, I would imagine that amongst the heartbeat bill states the rape and incest is not being accepted as allowing for abortion, is particularly concerning to you, but I also noticed in these bills which was very striking that even though a medical provider would be potentially held criminally or civilly liable, women were excluded from any type of criminal or civil liability, and so I just — I know those are kind of the different ends of the spectrum there, but I wanted to get your reply based on that?

 

(00:34:59)

 

Farah Diaz-Tello: So, I think Amy is exactly right that the new trend is really — I think dropping the veil on the reasoning behind restrictions that are placed on abortion, I think for the past many years a lot of the restrictions on abortion were really done ostensibly in the name of women’s health and so creating more-and-more onerous restrictions on the providers, abortion providers to maintain certain with the poll ways and those type of regulations, but then also restrictions on women themselves in terms of having to come in over multiple days and, oh, this was done against supposedly in the name of their own health.

 

And now it’s really — I think that the legislators are abandoning that as their purported reasoning and creating these laws that are first of all making abortion accessible for many women before they even know that they’re pregnant, the cardiac pole activity is visible often quite early in the pregnancy and before many people would even know, but what they do also is rely on criminalization and that’s really a return to the pre-Roe style of legislation that involves imposing criminal penalties.

 

Now, you mentioned that the current laws don’t permit the criminalization of women who have abortions themselves and I would say that definitely that, one, that’s correct, and two, that is consistent with the trend throughout US history that in fact has been really the rare outlier position states that New York took criminalizing women for either submitting to an abortion that wasn’t legal under the law or for ending a pregnancy themselves.

 

But unfortunately the fact that states haven’t clearly criminalized people for ending their own pregnancies hasn’t stopped there from being arrests. So within recent years just from the year 2000 to now we know at least 21 people who have been arrested for ending their own pregnancy or for helping a loved one who did so.

 

So even though these laws don’t have specific provisions targeting women who end their own pregnancies, we know that this will unfortunately provide fodder for prosecutors who are intent on finding a way to punish people for ending a pregnancy and then they also just on a practical level are creating fear and apprehension right now.

 

I am in contact with people who are working abortion fund hotlines who hear from people every day wondering whether they need to cancel their abortion appointments because abortion is a crime now and we run a legal helpline where people can reach out if they’re concerned about criminalization for abortion, and again, we hear from folks every day wondering whether they could be potentially arrested for seeking an abortion even one in a clinic and the clinics are still open, abortion is still legal in all 50 states.

 

Laurence Colletti: So for the sake of time and we’re running out of time here for this episode, I want to lump Alabama’s Human Life Protection Act and contrast it with Vermont’s new law. And so, Alabama is probably in terms of the new law is on the furthest side you can be on the pro-life side, whereas Vermont’s new law is probably on the farthest of the side of the pro-choice, and so let me start with Amy. I’m going to hand Alabama’s new Human Life Protection Act to you and maybe we could get a tour of some of its features, and then after she’s done, Farah, I want to hand Vermont’s new law to you.

 

Amy Swearer: Sure. So the new Alabama law would essentially prohibit abortion at any stage. So it would essentially take that concept of when does life begin and when it is a living human being, a person and extend that all the way to conception and say that a living human being is a person from that moment of conception.

 

And so the only exceptions for abortion in that case would be I believe that the terminology is a serious health risk with again no exceptions for rape or incest. As we’ve mentioned previously just like with a number of these other states, the abortion punishment — so the punishment for abortion would be placed not on the woman seeking the abortion but on the medical practitioner performing that abortion, so it would make again performing that abortion a felony punishable by I believe 10 years to life. Again, it hasn’t gone into effect yet, but you’re seeing sort of that extended reasoning of you have a living human being, we are going to consider this a person by virtue of the fact that it is a living human being and we can’t really distinguish between different stages of development in the life of a human being, so we’ve extended that all the way to the very beginning, and at that moment of conception Alabama has taken a position that this is a human being with an inherent right to life and the State is going to protect that interest.

 

Laurence Colletti: And so, Farah, let’s contrast that with the other side of the argument, that the new Vermont law goes completely 180 direction, let’s get a tour of some of its features and components.

 

(00:39:57)

 

Farah Diaz-Tello: Sure, the most important thing about Vermont’s law is that it’s an affirmation that people maintain their fundamental rights, make decisions about their own bodies and their own healthcare when they’re pregnant, throughout pregnancy.

 

And an important feature of Vermont’s law also is a statement that there will be no criminalization of people for ending a pregnancy or losing a pregnancy, experiencing a pregnancy loss, and this is really important because what we know is that lawmakers in states that are passing progressive legislation supporting abortion rights, see what’s going on in these other states that are attempting to rollback reproductive rights.

 

And our understanding that what they need to do is make sure that their states are safe places for the people who live within their borders. So Vermont sees what’s happening in Alabama. So even though Alabama’s new law has a provision that says it won’t be used to criminalize women who end a pregnancy, who has an abortion.

 

We know that more than a thousand women in Alabama alone have been criminalized on the basis of the outcome of a pregnancy. Women have been charged with child endangerment crimes for giving birth to healthy babies who tested positive for criminalized drugs. So earlier, Amy referenced the idea of a sort of ideologically consistent or a rationally consistent way that states might treat harm to fetuses saying that an abortion would be tantamount to homicide.

 

And that’s essentially what Alabama was trying to do, but we know that Alabama’s Supreme Court wants to go a step further. So if you look back in 2013, there was a decision State v. Hicks, it was about a child endangerment prosecution of a woman who had given birth to a healthy baby who tested positive for cocaine.

 

And in that is really sort of the key to Alabama’s entire project right and in that concurring opinion by Justice Tom Parker, he said there should be no difference in the way that the State treat a homicide based on the subjective relationship between the killer and the victim.

 

So what that’s saying is not just where we want the State of Alabama to treat abortion as a homicide, we want to treat abortion as a homicide for everybody who’s involved and that potentially includes the pregnant woman. So even though we see under the new law women would not be criminally prosecuted with the crime of abortion, certainly based on the prosecutorial history and the history of the courts in Alabama, we can anticipate and the women may face criminalization for ending a pregnancy in that State.

 

Laurence Colletti: So there’s obviously a lot that’s going to come out of this, many of the lawmakers from Alabama admit that they think that their particular law that they put into place, the Human Life Protection Act will come under challenge by the Supreme Court and in so, they are hoping to chisel away at some of the elements of Roe v. Wade.

 

And so, obviously we’ve got states diverging away from each other, the rights and obligations State to State are becoming quite a bit different. So what I wanted to do is my last question for each of you, what do you predict? I know the ACLU is interested in bringing suit based on these new laws from the pro-life perspective but I wondered too if some of the more pro-choice laws are going to come under scrutiny as well, is this a fight that the Supreme Court can stay out of? Let’s turn to Amy first for her reply.

 

Amy Swearer: Well, I think ultimately the court is going to have to start weighing in on some of these questions. The problem of which cases and when these cases will ultimately make their way to the court, is really actually going to be a question decided largely by the circuit courts. So, right now unless we have some circuit courts who start upholding some of these more restrictive abortion laws, right now the Supreme Court can essentially say, well, the circuit courts have a precedent, there’s not necessarily a compelling reason for them to take some of these cases unless you start seeing circuit splits in which case, I think it’s much more likely that the Supreme Court is going to take on some of these issues to sort out those circuit splits. Right now, you kind of as these issues are working their way up, we don’t have those splits.

 

But I think that that the Supreme Court is much more likely to start taking on for example cases like — actually the cases just declined to take up at least on the question of Indiana’s law that would have prohibited abortion on the basis of the race, sex or disability of the child.

 

I think more tangential things like that are going to be sort of the issues that make their way up to the court first, assuming that the circuit courts don’t start upholding some of these more restrictive abortion laws.

 

Laurence Colletti: And Farah, same question.

 

Farah Diaz-Tello: So earlier you mentioned Indiana’s intent was to pass a law that would make its way up to the Supreme Court and chisel away at Roe. And I would disagree with that characterization, I think that the intent is very clearly and precisely to try to get Roe v. Wade overturned and particularly looking at that question of when personhood begins.

 

(00:45:04)

 

The chipping away was a strategy for the last 20 years, it was something that the Supreme Court repudiated in Woman’s Health v. Hellerstedt, and I think that there was a recognition that with the political shift, this was the opportunity for states like Alabama to take Roe head on.

 

The thing is we’ve been preparing since long before this, even starting back as early as 2015 as though Roe weren’t there because there are so many people in this country for whom Roe v. Wade is essentially an empty promise for low-income women, for women of color, for people who are living in rural areas where they can’t get to abortion clinics or for people who would have to cross immigration and border check points to get to the nearest abortion clinic. Roe is effectively an empty promise.

 

So what we see regardless of what happens with Roe v. Wade, the reel is going to be mostly at the State level and as we see an increasing hostility toward abortion rights and the people who have abortions, we foresee the possibility that more people are going to — first that more people are going to turn to self-managed abortion as a means of ending a pregnancy, and that more people are going to be swept into criminal prosecutions as a result of that. So that’s why If/When/How has developed a network of lawyers in every State that’s ready to help take on those cases because it’s no longer necessarily going to be institutional litigation in the whole new Supreme Court.

 

But it may be the fight of operating rights is going to be one that’s happening in public defender offices in rural places in Alabama, in Tennessee and be ready for that.

 

Laurence Colletti: Well, it looks like we’ve reached the end of our program for today. I want to thank our guests, Farah and Amy, for joining us; and ladies, if our listeners they want to reach out, learn more about the topic we discussed today, how can they find you?

 

Amy Swearer: Well, you can certainly find me on Twitter @AmySwearer or if you go to heritage.org, that’s heritage.org you can find plenty of stuff, not just for myself but from many of my colleagues on this issue as well.

 

Farah Diaz-Tello: And for us, folks can go to ifwhenhow.org but most importantly, folks can go to reprolegalhelpline.org where they can find out information about their rights and get in touch with an attorney if they’re concerned about criminalization for ending a pregnancy.

 

Laurence Colletti: Thank you. And that brings us to the end of our show. If you like what you heard today please rate us in Apple Podcasts, Google Podcasts or best yet your favorite podcasting app.

 

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I’m Laurence Colletti, thank you for listening. Join us next time for another great legal topic, when you want legal, think Lawyer 2 Lawyer.

 

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