The Washington PostDemocracy Dies in Darkness

Opinion Criminalizing abortion: Cue the enforcement nightmare

Demonstrators protest outside of the U.S. Supreme Court on May 5 in D.C. (Mariam Zuhaib/AP)
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One reason free people do not give the government the power to interfere and control intimate decisions is because the decisions and conduct are, by definition, closely guarded information not widely available and not subject to usual enforcement measures. The effort to investigate and enforce a law criminalizing a woman’s reproductive decisions necessarily becomes an exercise in authoritarian excess.

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?

Too extreme? Well, it’s not clear how states would go about enforcing the law unless they took such steps. Whenever the government has attempted to control women’s reproduction, an extraordinary degree of surveillance, intrusion and spying has been required. Whether it was Romanian Communist dictator Nicolae Ceausescu’s infamous Decree 770 in 1966 trying to gin up the country’s birthrate or China’s one-child policy and its army of snoopers, the effort to determine what women (and men) were up to in their own homes always required an assault on privacy that affected everyone.

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Oh, we aren’t a police state! There’s due process! True, but as soon as a prosecutor or police officer in a deep-red state finds “probable cause” in a case involving a woman who allegedly has had an illegal abortion, a state judge (likely elected and subject to the whims of the public) can issue a warrant. It will all be technically correct and procedurally pristine, but since the “crime” takes place in a woman’s womb, the enforcement mechanism by necessity will be intrusive. And if that is where we are heading, there won’t be a “right to privacy” (how quaint!) to prevent such intrusions into the lives of women and those around them.

And remember, Texas shows that if states offer “bounties,” the state legislature can create a ruse that individuals seeking a reward for finding abortion law violators are not themselves “state actors.” If that holds up, then the Fourth Amendment goes out the window entirely; “private” bounty hunters are not restricted by the amendment at all.

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.

Ultimately, we wind up with a society of snitches, suspicion and distrust. When the Texas bounty bill was first passed, Robin Fretwell Wilson of the University of Illinois law school wrote: “The encouragement of ‘voluntary espionage’ between neighbors hints at forms of totalitarianism that most Americans would publicly rail against.” She continued, “North Korea utilizes citizens as spies to inform the government of anti-government behavior of their fellow citizens. While the penalty there is certainly much greater — potential public execution ­— the underlying mechanism is the same, promoting fear and mistrust among neighbors.”

If you think this is unnecessarily alarmist, ask yourself: How do you think cases will be proved and prosecuted — and do you trust the crowd that determined there is no “life of the mother” exception to exercise restraint in investigating doctors’ and women’s “crimes”?

Note to readers: I will be on vacation until May 26.

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