ABA House reaffirms longstanding support for reproductive rights among other new policies

The American Bar Association’s policymaking body, the House of Delegates (HOD), adopted a series of resolutions during its two-day meeting Aug. 8-9 that seeks to expand protections for individuals and entities involved in the discussion and delivery of reproductive rights as well as protect other privacy rights.

The votes, coming at the conclusion of the ABA 2022 Annual Meeting, which began Aug. 3, represents the association’s first votes in support of reproductive rights since the U.S. Supreme Court overturned Roe v. Wade on June 24. The new measures, added to the HOD agenda in the past few days, generally protect those involved in the abortion process or advocates of reproductive rights from civil and criminal penalties, in addition to provisions to protect the legal right to take contraceptives or enter into interracial or gay marriage.

On Aug. 8, the ABA reaffirmed decadeslong ABA policy that embraced a woman’s right to terminate a pregnancy. In 1992, the ABA adopted a resolution supporting the right to abortion before fetal viability and a more limited right thereafter, and in 2019 the HOD adopted policy that generally advocated an end to laws that restrict and regulate abortion access.

The set of new policies, proposed in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruling the landmark 1973 abortion decision, are:

• Resolution 804 opposing the imposition of criminal or civil liability on any individual or entity who essentially helps a person who voluntary seeks or considers an abortion. The policy urges that any existing statute(s) that imposes such liability be repealed and provides an exception for malpractice or statutory negligence.
• Resolution 805 opposing any government attempt that restricts the right of any individual to access contraceptives or contraceptive care.
• Resolution 806 supporting enactment of the Respect for Marriage Act or similar legislation that codifies marriage equality for same-sex and interracial couples by federal statute.
• Resolution 807 opposing the criminal prosecution of any physician or medical or health care provider who provides or attempts to provide an abortion, or who encourages, helps, advises, gives information to, aids, assists or supports a patient with having an abortion. It also asks that any existing law allowing for this prosecution to be repealed.

In addition, the HOD approved Resolution 808 that urges the repeal and opposition to statutes that seek to evade court constitutional review by delegating enforcement, such as in a Texas abortion law, to private citizens and statutes that grant monetary bounties to those who seek to enforce these laws.

In the area of lawyer ethics, the delegates averted a contentious discussion on a measure that threatened to undermine ABA support for some of the initiatives dealing with regulatory changes nationwide. Resolution 402, as amended, reaffirms the association’s model rule barring nonlawyer ownership of law firms but also reaffirms policy approved in 2020 that encourages innovation in the profession at the state level as long as the entities involve measure the effect of change.

“When we innovate it should not be at the expense of our core values,” said John Thies, a delegate from Illinois who pushed to reaffirm Model Rule 5.4 dealing with the bar on nonlawyer equity in law firms. “This simply affirms existing ABA policy and makes a strong statement to those who believe the ABA has lost its way on this issue.”

In its first day, the HOD adopted as new policy several criminal justice-related measures that include:

• Resolution 601, which urges the repeal of the federal law, also known as the “Charleston Loophole,” that allows for the sale of a firearm to be finalized after three business days have expired, even if the required background check has not been completed.
  
• Resolution 501, which sets out the ABA Criminal Justice Standards on Diversion providing guidance on various aspects of diversion programs. The standards are consistent with efforts to reduce collateral consequences; address over-criminalization; reduce incarceration; curtail the burden on and investment in the criminal legal system; and eradicate racial disparities throughout the system.
  
• Resolution 502, which urges governmental entities to enact legislation permitting courts to hear petitions that allow hearings to take a “second look” at criminal sentences where individuals have been incarcerated for 10 years. The report to support the resolution noted that the U.S. is home to less than 5% of the world’s population but houses nearly 25% of the world’s prisoners, adding incarceration disproportionately impacts people of color.

The HOD also approved Resolution 602, which revises the ABA Election Administration Guidelines and Commentary and urges all election officials to ensure the integrity of the election process through the guidelines and urges that governmental entities provide election authorities with adequate funding to implement them. The guidelines cover such areas as voter registration, accessibility and voting by mail or absentee balloting.

For details on all policy resolutions and other matter considered by the House during the two-day session, click here. Only proposals approved by the HOD become ABA policy. The HOD will meet next in New Orleans in February 2023.