In age of mass incarceration, criminalizing abortion a step back
Earlier this month, 42 elected prosecutors from around the country signed a letter pledging to use their discretion to decline to prosecute women and doctors pursuant to the new wave of draconian abortion laws sweeping parts of the nation.
“Legal precedent,” the prosecutors wrote, “as established by the highest court in the land, has held for nearly 50 years that women have a right to make decisions about their own medical care, including, but not limited to, seeking an abortion. Enforcement of laws that criminalize healthcare decisions would shatter that precedent, impose untenable choices on victims and healthcare providers, and erode the trust in the integrity of our justice system.”
Sadly, no elected State Attorney in Florida has yet signed on to the pledge, despite the fact that Republicans have already promised a bill for the 2020 legislative session banning abortions as early as six weeks after conception.
Similar bills have passed in Alabama, Missouri, and Georgia, with criminal penalties ranging from 5 years to 99 years in state prison.
These bills would open up doctors, nurses, lab technicians, and in some cases the women themselves to criminal prosecution.
Many of these laws do not create exceptions when the woman has been victimized and will certainly serve to retraumatize victims of rape, incest, human trafficking, and child molestation.
One of the functions of the criminal justice system is to help victims heal from trauma; prosecuting victims or their healthcare providers for making a very personal and difficult healthcare decision flies in the face of everything the justice system is supposed to be about.
Moreover, to criminalize such a large number of people with this type of law in Florida would be both a moral and economic disaster.
Florida currently has over 96,000 people in state prison, with thousands more on probation and in local jails. We have the third highest total number of people incarcerated in the U.S., and the thirteenth highest incarceration rate. Women are already the fastest growing population of state prisoners.
To criminalize a healthcare decision made by thousands of women every year could add a significant number of cases to our already overflowing criminal court dockets, add countless women to our prisons, devastate families, and cost our state millions in incarceration costs.
History tells us that women of color will suffer the most from this new criminalization of abortion. Mass incarceration has never been colorblind and the racial disparities in our courts and prisons will surely be repeated when enforcing this new crime.
During the 2019 legislative session, both Republicans and Democrats argued for a criminal justice reform bill, which was ultimately passed. The law will make small reductions in our prison population and save our state some real money.
Should the Legislature pass a fetal heartbeat bill and sheriffs and prosecutors decide to enforce it, any gains that were made in the last session on criminal justice reform will be entirely undone.
While it may be too late in other states, it is not too late in Florida. Our Legislature should not pass this type of antiabortion bill, but if it does, our Sheriffs and State Attorneys should not enforce it.
The Constitution of the United States, as interpreted through decades worth of precedent, grants women the right to make personal health choices that include abortion.
Our state legislators, as well as local Sheriffs and State Attorneys swore an oath to protect and defend the Constitution. They should uphold that oath.