Fifty years ago, I was the child of an activist mother. I attended countless demonstrations in my youth. Several of these protests focused on the fight to ensure that women had the right to choose whether to have an abortion. Roe v. Wade, 410 U.S. 113 (1973), had not yet been decided. Perhaps the most prevalent slogan on the signs littering these rallies was “My Body, My Choice.” Fifty years later, my 17-year-old daughter organized a protest in the wake of Dobbs v. Jackson. The youthful demonstrators seemed to view the fight through a different lens than my mother’s friends 50 years ago. There, the signs that stuck out most read “Don’t Criminalize Abortion.”
Perhaps the most significant difference in the conversation around reproductive rights in the early 1970s and today is that this generation grew up in an era of mass incarceration. In the pre-Roe world, the fight to legalize abortion was about women’s autonomy, dignity, and the ability to be viewed as fully human in the American democratic experiment. The nation had not yet become addicted to using the criminal legal process as the primary vehicle to subjugate and control. There were roughly 200,000 people incarcer ated. Today that figure exceeds two million. The fear of being thrown into the criminal legal system and having their lives destroyed was not at the forefront of the collective minds of early-1970s protestors.
Obviously, this remains a critically important issue today and a vital aspect of the ongoing fight for reproductive rights. However, for my daughter’s peers, this is only part of the conversation. Her generation never knew a world unshaped by mass incarceration. They understand that an ever-expanding criminal code is a powerful tool for the state to control less-favored populations. They know that every time some new set of behavior is criminalized the impact will fall disproportionately on low-income people and those who are Black and Brown. They are also aware that women are now the fastest-growing segment of the incarcerated population. This generation understands that Dobbs is very much a criminal justice case. As a young, Black woman, my daughter also appreciates the intersectional impact it has on women and communities of color.
My mother’s generation could not have understood the fight for the right to choose in this way in the years before Roe was decided. The criminal legal system was not the primary institution that fueled a racial caste system. It was not understood as the New Jim Crow. The original Jim Crow was not dead yet. There would be no reason for these activists to view prohibitions against abortion as a vehicle to fill our prisons and jails with those we dislike.
The Rise of Mass Incarceration, The Fall of the Promise of Gideon
In the years after the Roe decision, the War on Drugs was launched by President Nixon and ramped up by President Reagan. The voracious appetite of the criminal legal system was further fed by President Clinton, as Democrats and Republicans alike fought to outpace the other in the amount of cruelty they could heap on a demonized class of “criminals,” a label largely associated with young, Black men living in urban neighborhoods.
As the War on Drugs grew, the promise that every person would have a capable public defender turned to mere rhetoric. Rather than a necessary component of the justice system, the burden of fulfilling the right to counsel became an annoyance in a world where efficiently processing cases quickly became more important than ensuring justice for vulnerable people. If the ideal of the right to counsel was embodied by Atticus Finch when Gideon was decided, by the time mass incarceration was in full force, public defenders were instead portrayed in popular culture as bumbling, incompetent, and uncaring. In fact, when I first became a public defender in the mid-1990s, our trial chief had a sign on her desk that read, “don’t tell my mother I’m a public defender, she thinks I play piano in a whore house.” Indeed, the failure to live up to the promise of Gideon is an important, yet overlooked, chapter in the mass incarceration story.
By the time the nation began to embrace the need to address the failed mass incarceration experiment, public defenders were not even a thought in the minds of reformers. They had been so marginalized in the criminal justice story over the decades, one could almost be forgiven for failing to see the connection between our failure to respect the right to counsel and our burgeoning mass incarceration problem.
Before examining the likely role that Dobbs will play in the ongoing mass incarceration story, it is worth taking a step back to understand its components.
The Mass Incarceration Story
In The New Jim Crow (2010), Michelle Alexander provides a roadmap for how mass incarceration evolved as a racial caste system that replaced Jim Crow. She does this through the lens of the War on Drugs. It begins with criminalizing behavior that is widely engaged in by many Americans. For example, illicit drug use is prevalent across racial and socioeconomic lines. Therefore, by criminalizing drug use, the number of people who could be ensnared in the drug war net is massive and the legislation does not appear, on its face, to target a specific population. The potentially criminalized group is further enlarged through laws that criminalize association with drug use. People who provide the drugs to users are criminalized, as are those who can be considered to have assisted in any way. Expansive liability for aiders and abettors, accomplices, and co-conspirators significantly multiplies the population of potential “criminals.”
If the first step is making a huge swath of the population potential criminals, the next step is to design consequences that segregate those pulled into the criminal legal system from the rest of society. Lengthy prison sentences, coupled with civil consequences that limit the ability to reintegrate into society, ensure second-class citizenship for those ensnared in this broad law enforcement net. Over the past 50 years, the potential prison terms have soared, as have the number of collateral consequences associated with conviction.
Once a system is in place that enables the law enforcement apparatus to criminalize a significant percentage of the population and render it unable to fully participate fully in America’s democratic vision, mass incarceration depends on laws that give police, prosecutors, and judges virtually unfettered discretion as to whom to execute this war against. Although on their face the laws are race and class neutral, the biases of everyone in the system ensure that lower-income communities, particularly those that are Black and Brown, will be disproportionately targeted. While many people may be “potential” criminals, only a subset is dealt with in this system of mass incarceration.
Laws that allow police to engage in race- and class-based policing ensure racial and economic disparity in the populations who are arrested. Virtually unbounded prosecutorial discretion excuses charging decisions and sentencing recommendations that penalize poor people, and people of color, more severely. Legal impediments to seeking review of sentences make it difficult to challenge racially disparate punishment. You can walk into virtually any courtroom in America and find that those impacted are almost exclusively low-income and disproportionately Black and Brown. This image is normalized, as society has accepted this as the face of crime. Because our criminal legal system is an outgrowth of a centuries-old narrative in America about who is dangerous, even well-intentioned systems actors make decisions based on implicit biases that guarantee racialized outcomes.
A final piece of the mass incarceration story—a component that has not been as widely discussed in the years since The New Jim Crow was published—is to ensure those thrown into the criminal legal system are rendered unable to defend themselves. While the state has amassed a massive arsenal of weapons with which to efficiently process the accused from arrest to conviction, targeted individuals have simultaneously been deprived of the only weapon that will allow them to fight back—an effective public defender. As the machinery of law enforcement and prosecution has expanded over the past five decades, the promise of Gideon has been eviscerated. Public defenders who are underfunded, unsupported, and beaten down are rendered incapable of fighting for those who must rely on them. Far too often, well-intentioned public defenders are forced to stand idly by as prosecutors and judges carry out the routine processing of the criminal courts. Because public defenders, and other court-appointed counsel, represent four out of five people thrown into the system, emasculating this function ensures the assembly line meets little resistance. Without the resources needed to aptly interrupt the criminal justice conveyer belt, the public defender is seen as complicit in the injustice as over 95 percent of the people they serve are pressured into pleading guilty and forgoing any chance they had to fight for a just outcome.
Criminalizing Pregnancy—the Next Wave of Mass Incarceration
Once we understand how the system of mass incarceration evolved over the 50 years between the Roe and Dobbs decisions, we can begin to appreciate that the latter decision has birthed a War on Pregnancy that has the potential to be the next driver of a criminalization wave. In other words, this battle may be the new front line of the fight against mass incarceration.
Thirteen states had enacted “trigger laws” at the time Dobbs was passed that were designed to outlaw abortion upon Roe being overturned. Twelve of those states have enacted full bans on abortions to date. Several others have severely restricted access. Ongoing litigation in other states ensures more will soon follow. At the federal level, there are some Republican legislators who would like to see a federal ban on abortion, which would affect all Americans regardless of the law of their individual states.
Given that one in four women in the United States will have an abortion, these bans will have broad impact. However, the threat of prosecution is not only to women who want to terminate a pregnancy. In the aftermath of Dobbs, there will be an increased risk of prosecution for any person who becomes pregnant. At least 38 states have feticide laws that make it a crime to harm a fetus. This number will likely only grow. Dobbs lays the groundwork to expand the definition of when a fetus achieves “personhood.” Simply being pregnant carries with it the risk that some harm could come to the fetus. A mere accusation that the harm was not accidental could lead to criminal liability.
However, the potential criminal liability net cast by Dobbs is even wider. Broad theories of liability that criminalize people who attempt, aid and abet, conspire, or serve as an accessory to criminal behavior put into harm’s way not only the pregnant person themself but also anyone who provides them help or comfort. The parent of a child in a state that bans abortion medication—which accounts for roughly half of all abortions—who mails the pills to their desperate daughter could be charged with a crime. A medical care provider who seeks to offer guidance to a terrified young woman with nowhere else to turn for advice could be prosecuted. A close friend or relative who gives money or provides transportation could find themselves in legal jeopardy. In short, any of us.
This opens the door to an entirely new wave of potential prosecutions. For example, Ohio was one of the states that enacted legislation in the wake of Dobbs. Ohio’s “Heartbeat Bill” requires that a doctor not move forward with an abortion if a heartbeat can be detected. The bill makes no exception for rape or incest. Soon after the bill was enacted, a 10-year-old girl who was impregnated when raped was forced to travel to Indiana to have the procedure done. The doctor who conducted the abortion has since been facing harassment. Indiana’s attorney general has called for an investigation of the doctor. Had the child not had the resources to travel, and a sympathetic Ohio medical care provider performed the procedure, they could face prosecution. Given the trend towards criminalizing adolescents, one has to ask if the day might come when we hear a similar story that results in the prosecution of the 10-year-old child.
However, it is not just abortion-related prosecutions that should concern us. We will invariably hear more stories about women who have been prosecuted after suffering miscarriages. In Kings County, California, two women who used methamphetamines were charged with homicides for the death of their stillborn fetuses. Adora Perez was sentenced to 11 years in prison and spent four of those incarcerated before her conviction was reversed. Chelsea Becker spent 16 months in jail before her charges were dropped.
In Oklahoma, Britteny Poolaw, a member of the Comanche Nation, was sentenced to four years in prison for first-degree manslaughter after suffering a miscarriage. She was alleged to have used methamphetamines while pregnant. In Alabama, Marshae Jones was indicted for manslaughter after she was shot during a fight. Her unborn child died. Prosecutors alleged that she started the fight and was therefore responsible for the death of the fetus. In Texas, Lizelle Herrera was arrested for allegedly self-inducing an abortion and sent to jail on a half-a-million-dollar bond.
In this new world, any behavior that is deemed harmful to a fetus can be criminalized. Any miscarriage is potentially a homicide. Given estimates that 10 to 15 percent of pregnancies end in miscarriage, millions of people could be at risk of prosecution.
The woman who consumes alcohol or drugs, not knowing she is pregnant, could potentially be charged should harm come to the fetus. It simply takes a prosecutor who views her as irresponsible, and doubts that she did not know of her condition. The prosecutor could also charge the person who provided the intoxicants to the woman if they believe that person was also aware. The pregnant person who falls and harms the fetus could be charged with a crime. The pregnant teenager who fails to adequately follow doctor’s orders or the person without health insurance who cannot afford to seek the appropriate prenatal care could find themselves in the legal crosshairs.
While on their face, legislation that bans or restricts abortion, or criminalizes harmful conduct towards a fetus, appear race and class neutral, data tells us their application will not be. A 2013 study in the Journal of Health Politics, Policy and Law found that pregnancy-related prosecutions have occurred in at least 44 states. It found that low-income women are especially vulnerable to being charged for pregnancy-related crimes, and African American women are “significantly more likely to be arrested, reported by hospital staff, and charged with a felony.” Six out of 10 women charged with pregnancy-related crimes were Black or Brown. Seventy-one percent were unable to retain counsel. This data suggests that this War on Pregnancy will look a lot like the demographics of the mass incarceration story to date.
Given what we know about implicit racial bias, this is to be expected. Doctors, nurses, and hospital workers who report suspicion of illegal behavior will rely on their own assumptions to draw conclusions. While a more privileged, white, married woman who claims she fell down the stairs may be believed, a similar claim from a Black woman who is less well-off may be viewed with skepticism. These biases impact police officers’ decisions about whether to arrest and prosecutors’ choices about who to charge.
Every indicator suggests the War on Pregnancy will share all the ingredients with the War on Drugs that contributed to mass incarceration. In the years since this data was collected, the assault on reproductive rights has only intensified. As abortion bans and fetal personhood laws become more prevalent, expect these trends to continue. We have learned from the War on Drugs that when given discretion, law enforcement—police and prosecutors—disproportionately make decisions about who to monitor, arrest, charge, and prosecute based on race and class. The solution is not as simple as getting rid of explicitly racist personnel. The social science around implicit bias informs us that even the best intentioned of these professionals contribute to these disparities. Their biases are more likely to cause them to interpret an ambiguous set of facts as consistent with criminality for this population. This new frontier of criminalizing pregnancy promises to further fuel mass incarceration and foster racial and economic disparities in the criminal legal system.
Because district attorneys have such broad discretion in determining whether to charge a person and, if so, what crime to prosecute, some have suggested that electing a more progressive breed of prosecutor is the answer. In fact, immediately following the Dobbs decision, 84 prosecutors from across the country signed a letter pledging not to prosecute those who “seek, provide, or support abortions.” Working to elect prosecutors who are more sympathetic to the fight for reproductive rights is certainly an important effort
Yet, while the stance of these district attorneys brings some level of comfort, not everyone will benefit from their less-punitive mindset. There will surely be sympathetic cases these prosecutors will elect not to charge. Presumably, these prosecutors will not initiate charges against a woman who seeks out a reputable abortion provider who is willing to conduct the procedure. However, this does not mean they will never prosecute cases where a fetus is threatened or harmed.
Considering Dobbs, safe and reliable abortion providers will become much less accessible in many states and significantly greater resources will be needed to access this care. What of the woman who lacks such resources and terminates a pregnancy in a way that the prosecutor finds irresponsible? Or the woman who miscarries under circumstances that make the progressive prosecutor suspicious?
Just because a prosecutor is progressive does not mean they do not harbor biases. As we have discussed above, the threat of criminalization in the wake of Dobbs will not just be to those who seek safe abortions in defiance of the law. Increasingly, it will be to any person who is pregnant should harm befall the fetus. Whether the prosecutor believes the woman justifiably sought an acceptable method of terminating a pregnancy or acted in a less responsible manner will be subjective. It will almost certainly be associated with class, race, and privilege. As we have seen with progressive district attorneys in other areas of prosecution, they may punish less, but they continue to punish in ways that have a disproportionate racial and economic impact.
Furthermore, progressive prosecutors are increasingly having their discretion limited by more conservative states’ attorneys general. Even if a local DA declines to prosecute an abortion-related offense, we will likely see prosecutions taken over by state AGs committed to enforcing the bans. In Florida, Governor DeSantis went as far as to remove a local prosecutor who signed onto the above-mentioned letter.
Of course, elected district attorneys who are less inclined to prosecute laws outlawing abortion are a welcomed feature of the post-Dobbs landscape. However, progressive prosecution will not eliminate a War on Pregnancy that will disproportionately harm those who are most vulnerable. For everyone cast into the criminal legal system as this war is waged, the only hope they have is a capable, well-trained, fully supported public defender.
A Modern Vision of Public Defense
We now turn to the importance of public defenders in this phase of the mass incarceration story. It is certainly true that as the machinery of mass incarceration churned over the past several decades, the public perception of, and support for, public defenders was becoming increasingly marginalized. However, despite the lack of appreciation for their value, the way dedicated public defenders thought about their work was evolving. Across the nation, public defenders began to understand that their work is not limited to what happens in the courtroom. Of course, they are uniquely qualified to navigate the criminal legal system, and this work is the primary function of defender organizations. However, defenders started to see that this work could not be disconnected from the larger assault on the people they serve. They came to understand that public defenders have a more complex role to play in the criminal justice battles of this generation.
Today, in addition to being staffed with talented courtroom lawyers, the strongest public defender offices also have teams of professionals to help clients navigate the myriad forces that led them to the system in the first place. They forge partnerships with the communities they serve and work to break down the barriers of mistrust that have hampered the work of public defenders for so long. They also understand the importance of engaging in the broader discussion about criminal justice and the decisions that impact those they serve.
An investment in building and resourcing public defender offices that view their work through this more complex lens will be vital to fighting the War on Pregnancy. For starters, simply fighting the criminal charges will require expertise in new areas of law, forensic science, and social science. How are these new crimes defined and what are the potential defenses? What can experts tell us about cause of death or a potentially relevant mental state of the mother? Does the attorney understand the trauma the client is experiencing and are they trained in how to work through these issues to develop a trusting attorney-client relationship? These questions inform how the public defender develops client relationships, investigates, negotiates dispositions, litigates motions, strategizes for trial, and advocates at sentencing. Training and resources will be required to prepare public defenders to competently handle this new category of prosecutions.
In addition to this expanded body of knowledge needed to defend against the charges, public defenders will need to develop expertise around many other related issues. Given that most women who seek abortions are mothers, defenders will need to understand how the prosecution may impact their client’s parental rights. In these cases, it will be important that the lawyer consider how criminal case strategy could impact the client’s parental status. Because the loss of an unborn child is a traumatic event, defenders will need to identify mental health issues and resources to address them. Furthermore, many other unaddressed issues frequently contribute to the client’s contact with the criminal justice system. Public defenders are often the first line to identify these issues and access services. These needs may include substance use disorder, housing, employment, and educational services. Given the intersection between pregnancy-related prosecutions, race, and class, ensuring public defender offices have advocates and resources to identify and address these issues will be critical to helping clients who are targets of the War on Pregnancy.
Because the most effective defender offices understand their role more broadly than the work done in court, they will work to establish strong connections to the communities they serve. In this way defenders can break down walls of distrust that often interfere with effective counseling. When people who rely on public defenders see them as allies, they are more likely to seek them out for legal advice early, which can mitigate legal consequences down the road. By forging these relationships, defenders can also access resources for their clients through community-based organizations. By immersing itself in the community, the public defender office can develop resources and relationships that help them address the challenges mentioned above.
Finally, these defender organizations understand their power to influence public opinion and shape policy decisions. Public defenders have a unique set of experiences that can inform how society understands the criminal justice system. By illuminating the normalized injustices of criminal courts, amplifying the stories of the people they serve, and advocating for a more humane and fair justice system, these advocates bring an invaluable perspective about who the people are who are most impacted by our approach to criminal justice and how they deserve to be treated.
The 21st century public defender must understand their work much differently than it was understood in 1963, in the pre–mass incarceration era. Unlike 60 years ago, today the primary battleground for the ongoing fight for civil and human rights is in the criminal legal arena.
Because of this, as Dobbs pushes the criminalization of pregnancy closer to the frontlines of the battle to undo mass incarceration, we must view the decision as a criminal justice case, and public defenders as a critical piece of the response. Reformers concerned about the impact of Dobbs on vulnerable people should advocate for resources to ensure they have access to defender organizations that have well-prepared courtroom advocates, a team of professionals to address the noncriminal challenges facing their clients, a commitment to forging community partnerships, and the expertise to develop a communications strategy to shift public perception and policy debate.
While some of the better-resourced defender offices have expanded their vision of how they can best serve their constituents, in most systems in America defenders are struggling. They lack the resources to fulfill their most fundamental obligations, let alone to begin to embrace the more expansive role required in these times. Justice advocates have been fighting for support to build the defender organizations needed in places where justice is most elusive. The Dobbs decision only intensifies the urgency of these efforts.
Hopefully, we have also learned from the War on Drugs that our failure to ensure that people without means have good lawyers is a critical element of our criminal justice crisis. We have seen during the mass incarceration era that the criminal legal system today wreaks far more havoc on marginalized communities than it did at the time Gideon was decided. Public defenders, who have the resources and support needed to engage in this modern, criminal justice/civil rights fight, will be necessary.
Dobbs should be viewed as a criminal justice case. We should not underestimate the impact it will have on the direction of mass incarceration. Therefore, it would be foolish to overlook the essential role that public defenders must play in mitigating the harm of Dobbs to the vulnerable communities who will most experience its impact. If we care about the fate of people who will be most targeted in the wake of Dobbs, we must commit ourselves to finally fulfilling Gideon’s promise.
