Monday, July 04, 2022

#CJreform Movement Poorly Positioned to Confront Re-Criminalized Abortion

During my three decades working on criminal-justice reform, when abortion came up, your correspondent always took the attitude, "That's someone else's job." Not anymore. As of last week, abortion became a criminal-justice issue in Texas, full stop.

The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell --  suddenly have dumped the abortion question back into the realm of criminal law. 

SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.

Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here

Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced. 

What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso,  Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail. 

The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.

The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married.

Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result.

By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.

If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond.

Presently, because this hasn't been an issue the criminal-justice system dealt with in more than a half century, there's no criminal-justice reform group obviously well-situated to confront these questions. The ACLU will step up, one assumes, but they're being pulled in a million directions and don't have a winning track record on these topics. Meanwhile, abortion-rights groups who one would anticipate would be most aggressive haven't dealt with the justice system in a half century and will have a steep learning curve. Grits fears that neither the abortion rights movement nor the #cjreform movement are well-positioned to confront what's coming next.

MORE: A slightly expanded/edited version of this post was published in The Texas Observer.

* An earlier version of this blog post said Henry Wade was Harris County DA. He was DA in Dallas County. I regret the error.


  1. Thanks for bringing this up, Scott. Another thing we all have to worry about now and likely hadn't thought much about before. FYI, small correction: Henry Wade was the Dallas County DA, not Harris County.

  2. My bad on Wade. Totally right. Will correct.

  3. "Welcome back to the fight."

    – Victor Laszlo; Casablanca

  4. In Harris County it was Johnny Holmes at that time.

    Great to have our Grits back!

  5. A substantial amount of your readers agree abortion is murdering a human

  6. @9:31: I'll look forward to reading their takes when they write them. This is mine.

  7. Scott: You're back!!! You're a state treasure, a library of criminal justice information. The fact that I don't agree with you on every issue is one of the fundamental reasons why I read and re-read your blog. It is important to consult with informed people who challenge your beliefs. I especially value your point of view now that the State has taken to cracking down on the first amendment rights of museums, libraries, high schools, and universities. Don't let the State tell you that you can't dance, Kevin Bacon.


    I am afraid your premise is incorrect. Fetus mothers and licensed abortion providers have been exempted from the criminal homicide statute, not fetus fathers performing or "assisting" in DIY abortions (or others not covered by the Roe-v-Wade-based exemption).

    Leading case: Flores v. State, 245 S.W.3d 432 (2008), cited more than a hundred times since.

    Appellant was convicted of murdering his pregnant girlfriend's twin fetuses by stepping on her abdomen, though he maintains that she also took measures to cause the deaths. Appellant raises three constitutional challenges to the capital murder statute. We hold that the statute is constitutional. In addition, appellant contends that the court of appeals erred in ruling that he was not entitled to a jury instruction on the lesser-included offense of deadly conduct. We disagree. Thus, we shall affirm the court of appeals.

    Also see subsequent habeas corpus case, also unsuccessful: Ex parte Flores, 387 S.W.3d 626 (Tex.Crim.App.2012), likewise cited more than 100 times.

    A jury convicted applicant of two counts of capital murder for terminating his girlfriend's pregnancy by stepping on her abdomen, causing her twins to be delivered stillborn. His convictions and life-imprisonment sentences were upheld on appeal by both the court of appeals[1] and this Court.[2] Applicant filed a post-conviction application for a writ of habeas corpus alleging that his trial and appellate attorney provided ineffective assistance of counsel under the Sixth Amendment. [...] [A]pplicant has failed to prove his entitlement to a new direct appeal based on his claim of ineffective assistance of appellate counsel.


    Sec. 19.06. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is:

    (1) conduct committed by the mother of the unborn child;

    (2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

    (3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or

    (4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

    Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.02, eff. Sept. 1, 2003.

  9. Some of us are ready and have been planning for this.;