WITH ROE GONE, A FEW RARELY DISCUSSED BUT TROUBLING CONSEQUENCES

I know you’ve heard or read story after story of the awful fallouts we might expect in post-Roe America. From my judicial perspective, I offer three likely, but rarely mentioned aftereffects that the Dobbs decision will bring to states enacting restrictive abortion laws. Anti-abortion laws will undoubtedly require an enlargement of those state’s child protection and child welfare systems, bringing with it a heavier fiscal burden. Law enforcement will face new and unwelcome challenges, especially in the judicial system. And don’t be surprised if more pregnant women, pregnant girls and helpless little children die.

I. ADDED BURDEN ON THE CHILD PROTECTION AND CHILD WELFARE SYSTEM

In the forthcoming post-Roe era, America will undoubtedly encounter an increased number of unplanned, unwanted births. The Supreme Court majority, cloistered from the real world, claim that’s not going to be a problem.

They must believe that Safe Harbor laws and the high demand for adopted children will make it easy for unwanted children to end up in safe, loving families.

They must believe the myth that conceiving, carrying and giving birth to a child, through some divine mystery or epiphany, will turn irresponsible, pregnant teenagers and young women into thoughtful, caring, competent mothers. But, will those who are abusing or are addicted to tobacco, alcohol and drugs, and there are many, suddenly quit for the duration of their pregnancies? Will those who are living in poverty, and there are many, have the means to seek out and engage the pre-natal services of an obstetrician or maternity clinic? Will those, in their ignorance and poverty, change their poor dietary and personal hygiene habits? Will those who are indifferent about motherhood suddenly begin reading books, articles and pamphlets on how to be best prepared for the blessed event?

Then, when the time to deliver arrives, do Alito and Company further believe that these high-risk young women and girls will be fortunate enough to have their babies delivered by doctors in baby-friendly hospitals? Do they believe that these same new mothers will be resting comfortably in their maternity suites and ready to cordially greet representatives from licensed child-placing agencies and, then, without hesitation, voluntarily sign surrender documents? Will they leave the hospital with no regrets and be grateful for not having had an abortion? Will those mothers who decide to keep their child now rejoice at having this new bundle of joy to care for? Will they ditch all previously made plans and goals for their future without harboring disappointment or regret? Will they commit themselves to being the best mommy they can possibly be?

My 15 years of experience presiding over court cases devoted exclusively to the safety and well-being of abused, abandoned and neglected children, most of whom are the product of unwanted or unplanned pregnancies, tell me otherwise.

I presided over thousands of cases and encountered hundreds of mothers who had given birth to unplanned, unwanted children. I offer this profile:

1. They are young, poor, uninformed or ignorant about good pregnancy practices, and received little or no prenatal care or advice, despite some of them already being mothers.
2. They use or abuse tobacco, alcohol and/or drugs at some time, or at all times during their pregnancy.
3. They do not take good care of their overall health, i.e., sleep, diet, exercise, and personal hygiene.
4. They are reluctant to become known to child welfare agencies due to immigration status, juvenile delinquency or criminal problems, prior contact with the agency, or risky conditions in the home where other children are living.

As a result, a substantial number of their babies were born prematurely, requiring weeks and months in the NICU, and had either obvious or latent birth defects, diseases and developmental challenges, most notably addiction to drugs. Despite not wanting the child at the time of pregnancy, at the moment of birth these brand-new moms nevertheless wrestle with the dilemma of whether to surrender their babies for adoption or keep them.[1] If legally prevented from terminating their pregnancies, we should expect to see a significant increase in the number of babies in the care of one or more persons who are substantially or totally incapable of safely and competently parenting their newborns.

Alito and Company’s optimism must have them believing that there are sufficient numbers of good pro-life people, church groups and other agencies out there willing to offer struggling mothers all the positive help and support they need. Wrong again. Indeed, some do exist, but historically there have never been enough. Therefore, on what basis can anyone believe the Dobbs decision will generate an unprecedented outpouring of additional help and support to meet a need that has never been met before? And let’s not forget there are many mothers who, out of fear, ignorance or inertia, will not ask for or seek any help at all.

Consequently, many more American homes will become overwhelmed with the daily weight of caregiving, the added financial burdens, and the resentment brought on by an unwanted child’s interference with a young mother’s future life. Some will eventually decide to give the child up for adoption or turn them over to be raised by a relative, but far too many unwanted and unplanned children will remain with their mothers (two-parent homes are rare in these cases) and become victims of maltreatment, mostly due to parental neglect of the child’s fundamental needs, but also due to physical abuse.[2]

It may take only days, but most likely it will take weeks or months for maltreated children to appear on the radar of the child protection systems operated by the state’s children and family services agencies and overseen by the courts. In some cases, children may suffer from years of maltreatment without detection and state action, and the longer maltreatment continues without intervention, generally the greater and more irreparable the harm to the children. As the number of births of unwanted children increases in post-Roe America, more children will suffer from maltreatment and the burdens on children services agencies and the courts will increase.[3]

Fortunately, many children will be reunited with their parents after they have demonstrated they can safely and competently care for their children. Some will be placed in permanent guardianship with a relative, usually grandparents.

The rest will become available for adoption following the termination of their parents’ parental rights. By the time a child in the child protection system is eligible for adoption, they will have already been in foster care for at least a year, more likely much longer, perhaps three years or more.[4]

Child development experts will tell you that children who have experienced abuse or neglect and have spent a substantial amount of time in out-of-home care, typically in two or more different homes, are at a higher risk of presenting significant challenges to adoptive parents. Many, thank goodness, will be successfully adopted. However, some adoptions will fail and the child is returned to foster care. The rest will never be adopted and will grow up in the foster care system.

In post-Roe America we can expect to find more of these difficult-to-adopt children languishing in foster care.[5] Many children will “age out” of the foster care system without ever having formed a stable relationship with an adult and end up alone and homeless. Regrettably, many will resort to crime as a means of getting by. Once these children were the objects of a governmental policy of compassion, support and empowerment. As young adults all too often they become the objects of a new system, the criminal justice/corrections system.

People seeking to adopt are typically looking for healthy newborns born to women who took good care of themselves during pregnancy and worked through adoption agencies for a seamless surrender immediately upon birth. The forthcoming Dobbs era, an era of more forced births, should see an increase in the supply of these ideal babies and the demand for them will be better met.

But that could be bad news for maltreated infants and toddlers in the child protection system. The Dobbs era might create a slight increase in the demand for adoptive children, but, due to the increased supply of both easy-to-adopt and difficult-to-adopt babies, the laws of supply and demand will likely work out well for the former, but not for the latter.

We cannot know what will actually happen, but my many years as a judge in child maltreatment cases give me little hope of good outcomes for large numbers of these unwanted children. More children are likely to come into the child protection system and remain there for longer periods, perhaps until adulthood and beyond. The end result will be the need to increase state budgets for child welfare and protection of maltreated children. In those states which pass highly restrictive laws, the increases could be substantial, perhaps more than the states are willing to pay for, thus potentially lowering the level of services to vulnerable children and needy families.[6]

Regrettably, the post-Roe era in America will also see a greater fiscal impact on the juvenile justice, criminal justice and corrections systems, which are already underfunded.

The big question is whether states, particularly the anti-abortion states, will step up and be willing to invest more in the governmental systems and institutions that will become more burdened by the Dobbs decision. They’ve always come up short in the past, and I am hearing nothing about how states are going to handle these challenges moving forward – so, we might see them coming up even shorter in the future.

II. STATUTORY ENFORCEMENT CONUNDRUMS IN THE COURTROOM

             In red states wherein the goal of post-Roe era legislation will be to severely limit or outlaw abortions, lawmakers will find that the only truly effective deterrent to abortion, if there is one, would be to make it a crime. Eventually, they will realize they will have to punish not only those who perform abortions, but also the women and girls who seek and have them. Threats of punishment will obviously close clinics, but these laws will not put an end to abortion, no matter how draconian the penalties.

Civil remedies, the so-called vigilante lawsuits, won’t work because women with enough assets to pay a civil judgment will also have the means to travel to abortion-friendly venues, leaving behind only the poor and judgment-proof. Compassionate, supportive programs aimed at caring for and helping women with unwanted pregnancies would be welcome, but won’t come close to eliminating abortions.[7] Consequently, a major test of the amount of deterrence criminal law enforcement will bring to bear on stopping abortions may very well be determined by the outcomes from the prosecution of violators.

Some prosecutors have already pledged not to prosecute.[8] How can that be, you ask? Well, elected prosecutors have discretion over which crimes to prosecute with the finite resources they are given.[9] If they find prosecuting abortions cases to be immoral, unethical, too costly or too difficult to win, they may decide to take a pass. For decades, and even centuries, there are crimes on the books that the general public has no knowledge of because prosecutors have chosen to ignore them.[10] To prosecute or not prosecute has always been a cost-benefit-political proposition and a critical responsibility for elected prosecutors. If constituents don’t like their choices, they can vote them out of office.

Other than pre-emptive, blanket pledges not to prosecute abortion cases, I foresee at least four problems the criminal justice system will have to wrestle with in states trying to enforce anti-abortion laws.

1. To charge or not to charge. Prosecutors will surely face a host of problems in deciding who to prosecute, for what, and how to go about it. Since abortions always occur in privacy, evidence-gathering could be problematical. Doctors may not be allowed to testify because of doctor-patient privilege and privacy laws. Spouses also have a privilege not to testify against the other spouse. Moreover, will prosecutors be able to prove every element of the alleged crime beyond a reasonable doubt? For example, can they prove the fetus was alive before the procedure began? Will they have hostile witness problems? Will jury sympathy become a problem? How are the judges going to react? Will the defense bar be weak or formidable? Will the time, effort and expense of prosecution generate a satisfactory conviction rate?
2. Jury selection. Another consideration prosecutors must take into account is whether they can empanel a jury that will convict. Juries normally don’t debate whether the crime in question ought to be on the books. For example, no one disagrees that murder should be a crime, so they immediately proceed to the task of deciding whether the crime was committed and whether the defendant is the person who committed the crime.

In abortion cases, judges and lawyers will no doubt have to contend with potential jurors having strong feelings about whether abortion should even be a crime, or, on the other side, whether abortion opponents will be predisposed to view any fetal death, including treatment for a miscarriage, as an intentional abortion. That raises more questions. Will judges automatically excuse all potential jurors who don’t agree with the law, or who believe the laws should be more restrictive? Will potential jurors lie to get on juries with the intent of causing mistrials? How deep will judges allow the lawyers to probe into the private lives of prospective jurors? Will prosecutors be allowed to ask women jurors if they’ve have had an abortion? Will judges force them to answer such deeply personal questions? Will they be truthful? What if they take the Fifth?

How long will it take for judges to cull out all the biased and prejudiced potential jurors before the lawyers can even begin to find 12 (or, in some states, six) citizens who might be fair and impartial enough to sit on the case? Jury selection may turn out to be the most time-consuming part of the trial. I don’t the envy the judges tasked with getting fair and impartial juries in abortion trials. Appellate courts will eventually set some standards, but that may take years. Meanwhile . . .

3. Jury nullification. Although it is not found in statutes and court rules, juries, in their discretion and in the sanctity of the jury room, can, and sometimes do, acquit defendants even though the evidence and the law undoubtedly prove guilt.[11] So, don’t be surprised if numerous abortion cases end with jury nullifications, especially if zealous prosecutors go after minors or victims of rape or incest.
4. Jammed dockets. Abortions cases may attract large numbers of talented, pro-choice lawyers willing to work pro bono and take all cases to trial in an effort to overload trial dockets and slow down all criminal prosecutions, thus causing prosecutors to perhaps have a change of heart. Typically, for a prosecutor’s office to function efficiently, 90% to 95% of all criminal cases filed must resolve without a trial. Even a 5% reduction in the early case clearance rate could gum up a prosecutor’s operating machinery. Equally important, elected prosecutors need a high conviction rate to remain politically viable. Spending taxpayer money and expending office manpower contending with overloaded trial dockets which are producing less than impressive results is not good politics.

III. FILICIDE AND SUICIDE

The most desperate of mothers (and fathers) might resort to the most despicable of all acts to rid themselves of their unplanned, unwanted children: killing them post birth. Also, a post-Roe America might see increased numbers of pregnant women, girls, and fetuses dying from self-help abortions.

Filicide, the killing of a child by a parent, usually by beatings or suffocation, happens in the United States at alarming rates, especially when compared to other first world nations. Every year hundreds of children under the age of six, and even under the age of one (infanticide) die at the hands of reckless, abusive or overwrought parents, usually the mother.[12] Sometimes, however, it’s the father or the mother’s paramour punishing the child with harsh physical abuse, often amounting to torture, and sometimes occurring over an extended period of time, until the child ends up dead. Believe me, there are tens of thousands of people out there who are mortal threats to their own children and have no business being responsible for their care.

During the Roe era when abortions were legal, filicides were already occurring in disturbing numbers, despite Safe Harbor laws being on the books in many states. Can we expect those numbers to go down in post-Roe America? If, as I believe, that the child protection system will be even more over-taxed and more thinly spread out, we may face the chilling prospect of a higher rate of filicides.[13]

Finally, it is widely agreed that we will once again encounter the pre-Roe era practice of the so-called back-alley, or self-help abortions, especially if anti-abortion states ban the importation and use of medical abortion products such as medications. While some women who attempt these dangerous procedures will survive, some will accidentally die. Others may terminate their pregnancy by intentionally committing suicide.

I know there are people who are appalled by abortion at any stage of gestation, but, to me, nothing is more appalling than mothers, and some fathers, committing a homicide on themselves (suicide) or their tiny, living offspring (filicide) because of laws which do not allow doctors to safely and timely terminate an unwanted pregnancy. I pray I’m wrong, but I don’t believe anti-abortion states will pass laws and provide the necessary resources that will slow down these tragic and unnecessary killings.

Justice Alito, with the support of his three new allies on the Supreme Court, swiftly and abruptly gave anti-abortion states the equivalent of “the dog who caught the car.” We’ve already witnessed a hornet’s nest of popular backlash, yet we must now watch in dismay as red state legislatures, ignoring reason and decency, are rushing to rain down hell on a huge population of women, especially young women and girls, the poor, and women of color. Should my predictions herein come to pass in the years ahead, lawmakers may discover their cruel, tyrannical legislation is producing upside-down cost versus benefit results, perhaps even drastic ones. How will the voters, especially the pro-birthers, feel about that?  Stay tuned.

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[1] I interviewed dozens of pregnant teens seeking abortions. When asked why they’re unwilling to carry the fetus to term and surrender for adoption, almost every one of them said they did not want to have to face that moment. If forced to carry a pregnancy to term, they worry of becoming psychologically unable to relinquish the baby. They can’t imagine someone else raising a child they carried and birthed, even though that would put their lives back on track. They believe an abortion early on in their pregnancy is the only solution because, among other reasons, it avoids those excruciating scenarios later on. That appeared to be the common state of mind among these teenage girls.

[2]Although abuse seems more egregious than neglect because of the use of violence, it has been shown that children who are neglected often suffer more severe and longer-lasting physical, mental and emotional impacts than victims of physical abuse. Additionally, and unfortunately, neglect cases are far more common than abuse cases.

[3] In recent years in Roe v. Wade’s America, approximately 260,000 children were removed from parents due to abuse, abandonment or neglect and placed in the protective care of the respective states.

[4]  Three  years doesn’t seem like a long time to people over the age of 25, but to a four-year-old, that’s three-fourths of their entire lifetime.

[5] At any given time in the Roe v. Wade era, approximately 115,000 children were in state care waiting to be adopted.

[6] It will also cause a heavier fiscal burden on the courts.

[7] Just as charity cannot wipe out hunger (they feed approximately 15% of people with hunger), charity cannot wipe out abortion.

[8] Nationwide, more than 80 district attorneys made such a pledge.

[9] Except it seems in Florida where the governor suspended an elected state attorney for Hillsborough County for exercising his discretion not to prosecute abortion crimes. Other states may follow.

[10] Adultery is still a crime in some states, but, despite the fact that adultery is committed by thousands every day, has anyone read or heard of a recent prosecution? Perjury, another crime committed by thousands daily, is rarely prosecuted, except in high-profile, public corruption cases.

[11] Notably, jury nullification has occurred in many federal tax resistance trials.

[12]The typical perpetrator is a young mother of low educational attainment, with a history of exposure to domestic violence, including rape and incest, and who received little or no prenatal care. Equally horrific are the cases of shaken baby syndrome, leaving children in a lifetime of irreversible, profound brain stem damage.

[13] Another type of filicide, not widely known and very rare, is neonaticide, the killing of a child withing 24 hours of birth. Women would keep their pregnancy a secret, living under the radar away from their hometown. They would secretly self-deliver the child, suffocate it, and clandestinely dispose of the corpse. The Roe decision virtually put an end to neonaticide. Let’s hope it remains that way in post-Dobbs America.