It took next to zero effort for pandering Republican state legislators to obtain cut-and-paste, ALEC-generated laws banning and criminalizing all abortions in their states, then brag and fundraise after such laws were passed by a willing Republican governor. But now that the Supreme Court is apparently set on overruling Roe v. Wade, the much harder part—as Republicans are about to find out—is figuring out how such laws terrorizing pregnant people will actually work in practice.
How do you go about catching and punishing someone who violates these laws? What tools of law enforcement will be necessary? How do you collect the evidence necessary for a prosecutor to charge someone with “aiding and abetting” an illegal abortion, for example? Can you dangle a lesser sentence if they agree to confess or cooperate against the suspect? And once the unrepentant offender has been apprehended, what sort of forensic examination methods or interrogation techniques should be utilized to prove their “crime?” Under what conditions?
As Jennifer Rubin writing for the The Washington Post observes, the unpleasant details of enforcing such laws has never been spelled out.
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Consider what it would take to “prove” a woman had an illegal abortion. Would a search warrant be issued for her phone and computer to see what doctors and health-care providers she sought out? Would housekeepers, relatives and friends be interrogated as to her menstrual cycle?
It’s not clear whether states would respect doctor-patient confidentiality (an abortion ban seems to imply that is a thing of the past). Does everyone from the office assistant to the doctor get grilled about the woman’s gynecological history? Maybe security cameras at offices will be reviewed to see when and if she went in and out of a health-care provider. Are we to subpoena insurance records, travel records, bank records?
You might think that these types of questions would have occurred to those Republican politicians responsible for cheerleading and passing such laws. But you’d be wrong in that assumption.
Co-founder of Sister District Gaby Goldstein joins The Downballot to discuss what Democrats in the states are doing to protect abortion rights
As reported by Nicole Einbinder and Caroline Kaskins writing for Business Insider, of the 13 states that have so-called “trigger laws” designed to ban all abortions in their states the very second Roe is officially overruled, none of them have given much if any thought as to how they’ll go about enforcing and prosecuting such laws.
After submitting more than 100 records requests since March, and reaching out to nearly 80 state and local officials, Insider found only one state agency that could provide any written plans about how it will roll back a civil right that has existed for nearly half a century. Insider requested information from governors' offices, mayors' offices, state attorneys general, district attorneys, state legislative offices, and health departments in all 13 trigger-law states.
None of the states that provide “exceptions” in cases, for example, involving rape or incest, or to protect the health and life of the mother could provide any guidance as to how such determinations would be made. As Einbinder and Kaskins point out, nearly two-thirds of rapes go unreported, so what type of evidence would be required to apply such an exception? Idaho, Mississippi, and Utah require that the rape be reported to law enforcement before an abortion will be “permitted,” while other states do not. Do prosecutors expect the rapist to voluntarily confirm his behavior?
And what type of medical testimony would be sufficient to establish that a person’s life was actually threatened by their pregnancy? Would there exist a ready cottage industry of experts used by prosecutors to rebut such a claim? Would doctors in a state that provides no such exception be forced to simply sit and watch the pregnant person die?
As Einbinder and Kaskins observe, no one in any of these states so eager to criminalize reproductive choices seems to know the answers to any of these questions. Most of Insider’s requests yielded no records (one district attorney from Shelby County, Tennessee, called their inquiries “political grandstanding”), or were met with bland statements that the agency was not involved in “enforcement”:
Many of the states have potentially complicated bans that include exemptions for cases of rape, incest, or health of the pregnant person — each of which would require fine-grained judgments by police, prosecutors, healthcare providers, and other officials involved in decisions about how to enforce and comply with the law. None of the states could produce any guidance provided to officials who will be responsible for making those judgments.
Nor were county prosecutors any more forthcoming. The Insider report poses the question: What happens when a prosecutor in one county aggressively prosecutes such crimes, while the prosecutor in the neighboring county refuses to?
"It's really district by district, county by county, and the chilling effect is going to be the same regardless, because also prosecutors can change over time. So even if one declines to prosecute or enforce, the next one could," Jessica Arons, a senior advocacy and policy counsel for reproductive freedom at the ACLU, said.
Since many of the bills that will be passed in the wake of the Supreme Court’s looming decision will doubtlessly piggyback on Texas’ “bounty hunter” law (SB 8) financially rewarding private citizens for “snitching” on those they suspect of facilitating or receiving abortions, there will certainly be no shortage of suspects to charge. Angry estranged boyfriends, former spouses, neighbors, and all types of envious acquaintances with an axe to grind against the alleged offender can all presumably be enlisted in the hunt. As Rubin puts it, “Ultimately, we wind up with a society of snitches, suspicion and distrust.”
Which brings up a critical point she also raises in her column: the all-but guaranteed prospect that prosecution of these laws will be tainted by political (or racial) favoritism:
Moreover, given the impossibility of policing all pregnancies and running down every accusation, the discretion put in the hands of individual prosecutors will be enormous; it is an invitation for selective prosecution. (Do we really think the rich, White daughter of a prominent businessperson will be hauled into court?) Some prosecutors will play Inspector Javert, harassing and menacing women; others will choose to look the other way, making further mockery of a law meant to chill conduct but not to be enforced.
The reason that none of these states were able to provide any definitive responses to these questions (despite some having such “trigger laws” on their books for over a decade) is obvious. Even if they were treated like political catnip for a rabid GOP base at the time, no one expected that they’d actually be tasked with the very ugly work of actually enforcing them. And don’t even bother asking the Republican legislators who passed these abominations. They don’t have a clue, and, “next question, please.”
Now that the time is nearly at hand, we’ll just have to wait and see how the public reacts to this looming shitshow inflicted on us by the Republican Party and its corrupt Supreme Court.