The nomination of Brett Kavanaugh to the Supreme Court doesn’t spell the death of Roe v. Wade (or, to be more pedantic, Planned Parenthood v. Casey) on the First Monday in October, no matter how many times headlines scream it does. Contrary to Linda Greenhouse’s efforts to provoke outrage by turning the Court into a cesspool of blind partisanship, it is an institution that perceives its legitimacy as being based on its preservation of legal stability. Maybe too much, even.
But few of the deeply passionate are aware that the highly political and exceptionally poorly reasoned Roe decision was a criminal case. At the time, performing an abortion was a crime, and there were then, as now, a variety of laws surrounding abortion that were criminal as well. After all, if it was a crime, you could leave open tons of loopholes that would allow people to circumvent the main crime by engaging in conduct that reflected the same moral culpability but skirted the elements.
Then came Roe, and everything changed. Except as my old college classmate at Cornell, Lynn Paltrow, explains, not only didn’t every thing change, but an awful lot remained exactly the same even if the Supreme Court’s ruling vitiated the consequences.
Some states still have pre-Roe laws on their books that specifically authorize prosecution of women who have abortions. In 2011, Jennie Linn McCormack, a pregnant mother of three who lived in southeastern Idaho, used medications she obtained online to carry out an abortion at home. She was charged with violating an Idaho law that makes it a felony for a woman to perform her own abortion. Nearly four months after Ms. McCormack was charged, a state court dismissed the criminal complaint, but in a way that left open the possibility that she could be charged again. Ms. McCormack brought suit in federal court challenging Idaho laws that could be used to punish her for having an abortion. She prevailed.
While it’s almost inconceivable that the Supreme Court, with Kavanaugh as one of its nine votes, will overturn Roe, it is certainly possible that a case will come along eventually that will cause a tweak around the edges of the right to an abortion. It may not be death by a thousand cuts, but even a cut here and there is enough to cause a minor shift that could make one of these old, forgotten, pre-Roe crimes come back to life. It’s almost certainly unintended, as these orphaned laws vary across jurisdictions, many put to rest decades ago and now forgotten, until some cop or prosecutor decides to breathe new life into it.
But didn’t the Supreme Court kill all these abortion crimes when it issued its landmark ruling? Not exactly. First, the ruling issued against the Texas penal code making it a crime to “procure an abortion.” That was the law before the Court. It didn’t erase all laws criminalizing abortion.
In a powerful new article, Jonathan Mitchell lays to rest one of the biggest myths on Constitutional Law: that the power of judicial review is akin to a veto, wherein the Court can “strike down” or render “void” a duly enacted statute. In The Writ-of-Erasure Fallacy, Mitchell states what should be an obvious fact:
But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.
Erasure is obviously a metaphor, but the notion a law held unconstitutional magically makes all similar, related, tangential laws disappear is a fallacy, a misapprehension of the significance of a holding. It may make them judicially unenforceable, but they remain on the books in black and white as they were before. Whether they’re rotting corpses of laws or zombies awaiting their moment to rise up is the question.
Such arrests have occurred in virtually every state, including New York, which is one of the eight states that has a law specifically making self-abortion a crime.
Not only have these laws continued on the books, without much of anyone noticing or, frankly caring, but even a minor shift in the Supreme Court’s ruling could revitalize more crimes that have been dormant for decades. If they’re not involved in the case, SCOTUS won’t appreciate the impact its holding might have.
Even if it did, extant zombie laws in the hands of an imaginative prosecutor can produce bizarrely unintended consequences. Consider how a death caused by a drunk driver morphed from vehicular homicide to depraved indifference murder, or a death after sharing narcotics has gone from tragedy to murder. That a law wasn’t intended to apply doesn’t mean it can’t be abused if the elements of the crime are met.
Massachusetts is engaged in a vetting of its laws to eliminate zombie laws.
Recently, the Boston Globe reported that the Massachusetts legislature is expressly repealing its criminal prohibitions on abortion, adultery, and fornication. Such laws would, without question, be declared unconstitutional if challenged in court. After all, a criminal prohibition cannot survive Roe and Casey. And bans on adultery and fornication cannot survive Lawrence and Obergefell. Why then is Massachusetts bothering to repeal them?
As the “writ of erasure” is just a fallacy, the failure to repeal laws no longer in use, no longer intended to be used, is necessary to clear out the forgotten crimes of the past so that they don’t become the zombie laws of the future should a shift in the Supreme Court’s abortion jurisprudence give them new life. These crimes didn’t magically disappear when Justice Blackmun issued the Roe opinion, and even if a tiny change in a future ruling could revitalize crimes that everyone believed were long since dead.
H/T Keith Kaplan