Sheriffs in a Post-Roe World
A Quick List of Issues to Come
Most people reading this know about the leaked draft opinion written by Justice Alito that would overturn Roe v. Wade. But a world where abortion is criminalized has already been the reality for many people across the country. This includes pregnant people being arrested, jailed, and prosecuted for stillbirths and miscarriages; health care providers being threatened with civil suits or criminal penalties; abortion providers and health care centers forced to close because of the fear of such sanctions; abortion providers denied protection by law enforcement; extrajudicial killings and harassment of abortion providers; and pregnant people who cannot access abortion services because of finances, time, work, etc.
In other words, simply because abortion has not yet been wholly criminalized does not mean it is or has been accessible.
Nevertheless, this is a newsletter about sheriffs and law enforcement, who are implicated when an act becomes a “crime.” Therefore, this will be the focus.
Impacts of Criminalization
Louisiana is considering an extremely restrictive bill that would criminalize all abortion – and most likely the morning-after pill and perhaps even some contraception measures – which means that other states will likely follow suit. The law, as written, appears to be extremely broad, forbidding abortions at “fertilization.” (The word “implantation” is struck, which seems to imply that even measures taken immediately after fertilization, e.g. Plan B, would be covered.)
The discussion around the bill in committee makes it plain that the legislators intended the bill to apply regardless of what happens to the Alito opinion, if possible.
Bradley Pierce of the Foundation to Abolish Abortion testified:
If the Supreme Court ignores the (U.S.) Constitution, you should ignore the court…The Legislature has the right to disregard the Supreme Court.
You know who else said that? Racists who did not want to desegregate schools. Which, interestingly, is how this all started—a story known for years, but now being retold.
Criminalized abortion means that pregnant people are even more likely to be arrested, charged, harassed, and otherwise trapped within the carceral net. The impact will fall most heavily on people who are already disadvantaged and over-represented in the criminal legal system: the poor, people of color, immigrant populations, and LBGTQ+ people. This will probably happen in states where mass incarceration is, on average, above the median. There have already been prosecutions of pregnant people for miscarriages or drug use while pregnant.
Arrest in and of itself has serious consequences even if no prosecution results. For example, deportation for anyone who is either undocumented or has temporary status is on the table even if there is no criminal conviction. This leads to the possibility that people will come to the attention of law enforcement through hospitals or other health care providers and be deported. In 2013, two researchers found “413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty.” 38 states have “fetal homicide laws” on the books. Most of those laws apply to any stage of pregnancy, even the earliest days after conception.
The fear of being arrested or deported will likely create a chilling effect on pregnant people, or those who have had a miscarriage or stillbirth, seeking health care. It’s not clear how health care providers will handle this challenge as many providers have policies of not contacting law enforcement. But we know it’s happened before. The growth of the surveillance state, and the surveillance market that aids the surveillance state with no constitutional checks, will probably make abortion tracking and enforcement across borders not just feasible, but lucrative.
Politics and Elections
Sheriffs, as political figures, are in a unique position among law enforcement to make political statements about their beliefs. Indeed, MAGA darling and Pinal County, Arizona, Sheriff Mark Lamb has already posted support for the anti-abortion movement, as evidenced by the below post on his social media.
Protests and Safety
Other issues that will likely emerge in the weeks ahead are concerns about the treatment of protestors. Already, the Los Angeles Police Department has been accused of excessive force against pro-abortion protestors. This time around even Homeland Security is getting in on the fight. In the 1990s, one Florida sheriff refused to provide protection to a clinic being threatened by anti-abortion protestors because of his personal beliefs against abortion. He posted a screed on his then-website and told the clinic his office would “do everything within our power to assist the protestors.”
Access to Abortion in Jails
Access to abortion and other pregnancy care in jail has always been spotty and uncertain. Because health care is often so bad, some people are worried to ask jailers about abortions or other birth control measures for (founded) fears that they might be sterilized, injured, or unable to have children in the future.
Sheriffs and jailers also have unfettered discretion to decide how they want to manage abortions and related care. I wrote previously about Joe Arpaio’s maniacal efforts to block people in his custody from accessing abortion, first through requiring a court order, then through requiring payment of all costs upfront, including transportation and deputy time.
Given that the vast majority of people in jails are legally innocent and are there because they cannot afford bail, this disproportionately impacts the poor. Plus, jails, which sheriffs run, are more likely to hold pregnant people — although we don’t really know how many because no one is required to keep that data. A recent study found that the six largest jails admitted around 16,000 pregnant people each year. While most of those women don’t give birth in jail, the outcomes of those who do are grim. From the study:
Of the 224 pregnancies that ended in jail, 144 (64%) were live births, 41 (18%) were miscarriages, 33 (15%) were induced abortions, and 4 were ectopics (1.8%). One third of the births were cesarean deliveries and 8% were preterm. There were 2 stillbirths, 1 newborn death, and no maternal deaths.
I am certain this will not be the end, but rather the beginning, of what we will see with sheriffs and the criminalization of abortion. No area of law enforcement is as infested with populist politics as the office of sheriff.