With abortion set to become illegal quickly this summer in as many as 26 states should the Supreme Court finalize the leaked decision to overturn Roe v. Wade, the risk of criminalized abortion has been made tangible for many people who would never consider themselves willing to break the law. Post-Roe, the fight for abortion rights will focus on different legal venues, shifting away from the federal courts and back to where most people encounter the law: as it is enforced by police and prosecutors, at the county level. Now public defenders will play a pivotal role, as most of the people who face prosecution for abortion are likely to land in their offices for legal protection.
It’s a concern already on the minds of members of the defense bar. “Things like the leak make it real for people,” Yveka Pierre, senior litigation counsel at If/When/How: Lawyering for Reproductive Justice, told me. She’s a former public defender who since 2018 has been working to train and support others. “It makes us feel prescient,” said Pierre, not that such foresight, she added, is what anyone wanted to be right about.
“Remember that there already is an apparatus and systems that are there to defend people when they are charged with crimes,” Farah Diaz-Tello, senior counsel at If/When/How, told me when we spoke before the draft Dobbs v. Jackson Women’s Health Organization opinion was published. But because the public defender system is “overburdened—by design,” she said, public defenders’ offices may not immediately identify these cases and what they require.
Back when she worked as a public defender, Pierre said, she had to become an issue expert in whichever case was next going to trial and then move on to the next. While she’s now working to provide that expertise for others, the first step is often making sure defense attorneys recognize that these cases might come before them. “When you have a high-volume office and you’re seeing all kinds of things,” Pierre said, attorneys may have a tendency to focus on what they see most often—to think, as she put it, “Well, that’s abortion, and that’s not necessarily something that we do.” Groups like If/When/How, National Advocates for Pregnant Women, and other reproductive justice lawyers have already been training defense attorneys through national and regional member-based organizations, like the National Association for Public Defense and the National Association of Criminal Defense Lawyers. They have laid the groundwork, advocates told me—through online workshops, offering support with briefs, and informal networking on social media—and are already preparing to ramp up for what comes after Roe.
Though at first some defense attorneys weren’t sure if their offices had abortion criminalization cases, Pierre said, it was not unusual to hear from them after a training that they did have clients facing these issues: women being charged with concealing a birth or abuse of a corpse—sometimes archaic laws that on their face may seem to have nothing to do with abortion. “What we have seen is that prosecutors aren’t using a kind of paint-by-numbers way of criminalizing people,” Pierre said. What these seemingly disconnected cases do have in common is the stigma against abortion, the “aura of illegality” that surrounds it—whether abortion is legal or not. And just as that stigma can lead prosecutors to make baseless cases, it can also make it more difficult for defense attorneys to provide an adequate defense.
In Kings County, California, a district attorney charged two different women who used criminalized drugs with the “murder” of their stillborn fetus—something that the state attorney general later said had no basis in state law. Kings County has no public defenders’ office; the contract criminal defense attorney who represented both women advised them to plead guilty to a lesser charge. Both women later appealed their cases with new representation by an attorney who understood how the prosecutor had misused the law, and the charges were eventually dismissed—but only after the women spent months and years deprived of their freedom in jail and prison. “When people have access to strong defenses and all the best arguments, they can be successful in these cases,” Diaz-Tello said. But they also know, as Pierre said, that even for those whose charges are ultimately dropped, “that doesn’t erase the harm that someone has experienced by having the full hammer of the state drop down on them and their lives; that doesn’t erase that harm their families experience, that their friends experience, the trauma they experience.” The real way to address that, she said, is for them not to be criminalized in the first place.
But once states are free to implement complete abortion bans, prosecutors will push on the boundaries of their discretion to pursue these cases. “Every elected prosecutor in the country will have a choice to make in the wake of this devastating decision—they have immense discretion to decide which cases should be prosecuted and an obligation to pursue only those that serve the interests of justice and promote public safety,” Miriam Krinsky, executive director of Fair and Just Prosecution, said in a statement earlier this month. In 2020, 68 elected prosecutors pledged that if Roe was overturned, they would not enforce laws criminalizing abortion. In Michigan, where nearly century-old abortion laws that are still on the books could go into effect without Roe, seven county prosecutors vowed in April that they “cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities.”
Not long after Roe, the right to abortion was severely curtailed thanks to the Hyde Amendment, a policy that prohibits abortion coverage on government health insurance plans, such as Medicaid. What’s happening now, as Pierre put it, is that “the reality that poor people have been living in for decades could become the reality for everybody.” Just as the fewer resources someone has dictates how they can exercise their right to an abortion, the fewer resources somebody has, “particularly financial resources, the more something like an arrest or prosecution can fully devolve their life in an instant,” Pierre said. “Getting arrested and being in [custody] for a week, you can lose your job, you can have your kids taken away in the meantime, you can lose your house, you can have your immigration status put into question. You could get out from the criminal case and then be held on an [Immigration and Customs Enforcement] hold.”
These are all issues public defenders have to help people navigate, and those resources do exist—like the Repro Legal Defense Fund, launched in June 2021, which can help cover bail in these cases, allowing people to return home and making it easier for them to work with an attorney to build a strong defense. But given the way criminal defense work can be siloed by issue, said Pierre, these resources may be disconnected from one another, not all in the same office where they are most needed.
“This place, the public defenders’ office, is a place where everybody who goes there is in crisis,” said Emily Galvin-Almanza, the founder and co-executive director of Partners for Justice, a national group that helps public defenders’ offices expand the kinds of services they offer, “because—let’s be real—having a criminal case is a crisis in itself.” That means the public defenders’ office can also be a place to locate support for people in crisis, she said. “For us in the defense world, it’s not just about defending abortion cases.” Post-Roe, it will also be about “understanding that a lot more of our clients will be unwillingly pregnant.” Attorneys will have to consider how to support more clients who have heightened medical needs, she said, and people having trouble with employment due to pregnancy discrimination, or whose housing situation is made more urgent by their pregnancy.
“A defender will need to do much more than criminal defense,” Galvin-Almanza said, and some are already providing that kind of support to their clients, as overextended as they may already be. “We already see women being hypercriminalized for their parenting choices when they are low-income and Black and brown.” Public defenders may be able to use “some of the same strategies that [defenders in family court] employ to protect targeted mothers against state oversight and control, and so much of that has to do with understanding the softer pressure points of the state”—what makes each court system and each judge unique. “But what will that look like on the repro side?” That’s where Galvin-Almanza hopes legal experts in reproductive justice can work with public defenders, bringing these two kinds of lawyering closer together.
The scale and scope of both the criminal legal system and surveillance technologies means that we are not returning to a pre-Roe world. Police and prosecutors will have tools at their disposal that they did not in the 1970s. And the new reality of criminalized abortion is not one of coat hangers and “back alleys” but of medication purchased online and used at home. People are rightly already asking, What would happen to me? after using a map app to drive a friend across state lines to a clinic or to bring them misoprostol. People who have never experienced a police officer thumbing through the texts on their phones are downloading the encrypted messaging app Signal (and if you already use Signal, you may have noticed this uptick in new contacts). People who would not think twice about typing the word abortion into a search engine may be pausing for the first time. “Companies that traffic in personal, geolocation, advertising, or other data could become digital crime scenes for eager prosecutors armed with subpoenas,” cautioned Alejandra Caraballo, a clinical instructor at the Harvard Law School Cyberlaw Clinic. Groups like Digital Defense Fund with expertise in reproductive justice are already in place to help people protect their rights and their communications.
There are many tools and groups in place—from bail funds to public defenders’ offices to the digital rights community—that can help people minimize the risk of criminalization for abortion and other pregnancy outcomes. The challenge is bringing them all together to confront the post-Roe reality. “People are going to make honest mistakes; that’s what’s so terrible about what we’ve built here,” Galvin-Almanza said. “When the state has taken away all of your options, you are forced to contravene the rules of the state. That’s not criminality—that’s bad law.… People are going to break it, and it’s not their fault.”