Full Episode
My Guest – Dana Sussman
Dana Sussman (she/her) is the acting Executive Director of the National Advocates for Pregnant Women and oversees the organization’s litigation, coalition building, research, and operations. Prior to NAPW, Dana served for six years as Deputy Commissioner of Policy and Intergovernmental Affairs at the New York City Commission on Human Rights. She has also worked for Safe Horizon’s Anti-Trafficking Program, the Center for Reproductive Rights and Outten & Golden LLP, and clerked for Magistrate Judge James Orenstein in the Eastern District of New York
Watch the Interview on YouTube
You can watch Episode 133 of the Decarceration Nation Podcast on our YouTube Channel
Notes From Episode 133 – Dana Sussman – Dobbs
The books that Dana recommended included:
Policing the Womb by Michelle Godwin
Killing the Black Body by Dorothy Roberts
Just Mercy by Bryan Stevenson
Full Transcript
Apologies, this is the second week of Ann being on vacation, so you are stuck with my terrible edit of the transcript.
Joshua B. Hoe
Hello and welcome to episode 133 of the decarceration nation podcast, a podcast about radically reimagining America’s criminal justice system. I’m Josh Hoe, among other things. I’m formerly incarcerated a policy analyst, a criminal justice reform advocate, and the author of the book writing your own best story addiction and living hope.
Today’s episode is my interview with Dana Sussman about the risk of incarceration created by the US Supreme Court’s Dobbs decision.
Dana Sussman is the act is the Acting Executive Director of the National Advocates for Pregnant Women and oversees the organization’s litigation coalition-building research and operations. Prior to NAPW Dana served for six years as deputy commissioner of policy and Intergovernmental Affairs at the New York City Commission on Human Rights. She has also worked for Safe Horizons anti-trafficking program, the Center for Reproductive rights, and Outten and golden LLP. She also clerked for Magistrate Judge James Ornstein in the Eastern District of New York.
Welcome to the decarceration nation podcast, Dana.
Dana Sussman
Thank you so much for having me.
Joshua B. Hoe
My pleasure. I always ask the same first question. That’s kind of the comic book origin story question, which is how did you get from wherever you started in life, to where you were the Executive Director for the National advocates for pregnant women?
Dana Sussman
Um, well, I’ll start about halfway through, which is that I went to law school only to do reproductive rights. I just decided that that was my issue, issues surrounding bodily autonomy. In people’s decision-making, the way people want to chart their life and their lives life course, was something that resonated deeply with me, I’m not sure why it just did. And so I went to law school. And with that in mind that that was the sole purpose. And I found my way to the center of reproductive rights as a legal fellow, as my first job out of law school. Got a little bit of a sort of boot camp orientation into abortion rights lawyering and litigation, but felt somewhat frustrated at the narrow scope of their work because they were so focused on keeping clinics open. This was in the mid-2000s when they were fighting against targeted regulation of abortion providers, really unsexy things like your hallways have to be double the width of every other Ambulatory Surgical Center in the state, you have to have a parking lot that has 100 spaces, those kinds of things that no one really cared about that got passed or regulations were issued without anyone noticing. And it would shut down clinics all over different states. So we litigated those cases and other restrictions on abortions, and abortion providers. But, you know, they’re so focused on keeping those clinic doors open that they were unable to take on the cases that I found myself really passionate about issues surrounding pregnant prisoners, issues surrounding pregnancy discrimination, really connected to the reproductive rights fight, but not within they’re not within their lane, so to speak, took a winding path after that took on different types of civil rights issues between employment discrimination, to worker exploitation, and ended up back at national advocates for pregnant women, which is an organization I’ve been following for its entire life. It’s been around since 2000, 2001. Because they were taking on those fights that no other organization was taking on. And that’s defending the rights of pregnant people who are facing criminalization for because of their pregnancies or because of their pregnancy outcomes. And so I was thrilled for the opportunity to join the organization. And I became the Acting Executive Director when our IDI went on sabbatical for the first time in her career. So here I am, the first day of her sabbatical was the day the Dobbs decision was leaked. And that’s either amazing timing for her or terrible timing for her depending on how you see it. And we are now in a whole new world, unfortunately.
Joshua B. Hoe
Well, speaking about the Dobbs decision, in case anyone listening doesn’t entirely understand the basics, you don’t have to go too crazy, but could you summarize the Dobbs decision?
Dana Sussman
Sure. So the Supreme Court took up a case in which Mississippi had passed a law banning abortion at fifth after 15 weeks gestation. Up until this point, really up until the Supreme Court, its current configuration was set up under the last administration presidential administration. That kind of ban would be presumptively unconstitutional. The previous cases about abortion before the court had made it very clear that you can’t prohibit abortion that early in a pregnancy, but with a new composition of the court states have been passing more and more restrictive abortion laws. And this was the case they decided to take up to revisit the league allottee of abortion and the principle that abortion is a fundamental right under the Constitution. And in this case, as we long suspected, the court said abortion is no longer a fundamental right under the Constitution. And states can restrict access to abortion or ban abortion based on the state’s interest in, quote, prenatal life. And so any abortion ban whatsoever, including complete bands with no exceptions, are now permissible. And it’s back to you know, sort of quote back to the states to decide and laboratories of democracy. And of course, if people don’t like it, they can vote for other people to be their lawmakers. But that ignores the reality of what our voting system looks like and how undemocratic our systems are and racist restrictions on voting access and all of those things. But that is where we are right now. And many states have already implemented their bans, and there’s more to come.
Joshua B. Hoe
And at the same people are at the same time restricting voting rights. Exactly. They’re talking about voting being that solution, which is kind of crazy. Some other things about jobs that seemed, you know, very strange, I think to a lot of people, first of all, that at least three of the justices, at least, said at some level during their hearings, that they supported the idea of Stare Decisis. And this case seems to have said, we don’t really care if this was precedent, because it was wrongly decided, which seems to be a new way of looking at stare decisis. Do you have any thoughts about what what what happened there? Or what I mean? Is it just pure power politics? Are we just looking at?
Dana Sussman
Yeah, I mean, I think it’s it’s Stare Decisis unless you disagree, and, and I think that there is no deference to the institution and to the decisions of, of prior justices and the reasoning behind those decisions. I mean, this was part of a week, like one week in which the court revisited Miranda rights revisited the federal agency’s ability to regulate issues within the EPA and the environment. And so it undermined Miranda and undermined administrative agencies’ authority to regulate in their area. It undermined South Indian sovereignty. I mean, there’s, it was a blistering and head-spinning week of judicial decisions from the Supreme Court. So it didn’t start or end with the Dobbs decision, but the Dobbs decision stands apart in one particular way. And that’s it’s the first time that a fundamental right was designated by the court and then taken away entirely, you know, we can talk about how voting rights is, is similar and that it’s been gutted. But this is the first time that the country has lost a fundamental right, even even if it’s lost it functionally in other ways. And other places. This is unabashedly overtly. This was a fundamental right and is no longer a fundamental right.
Joshua B. Hoe
So another kind of weird thing that happened is there was this when the decision leaked, and pretty soon after that, the court basically confirmed it was a legitimate leak. At least Roberts did if I remember correctly, and yet for like the whole interim time, every time you saw an article about it, everyone would say, if the Dobbs decision, like there was some real question of if it was gonna act, somehow they were going to rewrite the whole thing, or what do you think was going on there? I know, I’m getting a little off-topic. But these are kind of interesting job thoughts. I had Dobbs thoughts I had during the…
Dana Sussman
Yeah, I mean, there’s so many conspiracy theories about it. And I think that you know, we all were holding out hope, maybe unrealistically that the blowback was too big that there were that that Roberts was going to pull someone to his side. And, you know, he made clear that he disagreed with, with the, with the, with the framework articulated in Casey, the last major, major abortion rights case, although there have been many others, but that he felt like doing away with the standard was ill-advised. And so, you know, I think everyone was holding out unrealistic hope that in the time since the leak to the decision, that may be some composition of the votes would shift and that there was a, you know, a mystical majority decision floating out somewhere that that allowed the that maybe did away with the existing standard but allowed the 15-week or and then and then found that the 15-week ban was unconstitutional or that set a new line instead of the existing standard that we have. So the undue hardship standard so I think it was entirely unrealistic, but I think we were all while we were all prepared for this. It was so devastating to see actually happen that, you know, we were human and we were hoping for a better outcome even though all signs were pointing, to that not being the case.
Joshua B. Hoe
Even before Dobbs, the criminalization of women was a real, increasing problem. One of the documents on your website had the following kind of summation, since 1973, row rolling through 2020, and a PW has documented more than 1700 instances across the country in which women have been arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because their present pregnancy status or outcomes, and Na Na PW has documented more than three times as many cases from 2006 through 2020, compared to 1973, through 2005. Can you talk a little bit about how this was playing out before Dobbs was just as they were reading the tea leaves, right, or?
Dana Sussman
Yeah, so the criminalization of pregnancy is not new. And as you, as you described, and we’ve been seeing a pretty swift acceleration of the criminalization of pregnancy in the past 15 to 20 years. And what underlies that is essentially the same ideology that justifies restrictions on abortion, and the use of that, that ideology to control the behavior of pregnant people. And that is the concept of fetal personhood. If we designate fetuses as independent and unique entities that are entitled to constitutional rights, and protections, they can be independent victims of crime, and the most likely person to be prosecuted for a person exposing a fetus to a perceived risk of harm or an actual risk of harm or by, you know, experiencing a pregnancy loss. The purse, the most likely person to be charged for doing any of those things is the pregnant person. And we have seen this play out in different contexts, but they’re all you know, rooted in this concept of the fetus as independent and unique entity separate and apart from the pregnant person. And they can actually buy be treated by the state as diametrically opposed to one another, which is, of course, a false narrative created to justify all of this, because if you, you know, from our point of view, if you treat and provide resources and support to a pregnant person, both the pregnant person and the fetus benefit, you can’t separate their interest out and you can’t treat them as oppositional forces. And so the way that we’ve seen this play out is laws or laws that were never intended to apply to the context of pregnancy have been used to prosecute pregnant people. We have seen child felony child abuse and child neglect laws, be used to prosecute pregnant people for being pregnant and using drugs. We have seen murder manslaughter, feticide laws being used to prosecute pregnant people for experiencing a pregnancy loss. And being incorrectly unscientifically blamed for causing that loss. We’ve seen pregnant people be charged with similar laws or similar criminal violations for self-managing an abortion outside of the parameters of sort of the state mandates of abortion care when Roe was the law of the land. So so this, this has been happening for decades, we have seen it increase in frequency in recent years. And we see it in particular states more than others. And we see the people who are targeted are not everyone, right? It’s going to be people who are poor people who are drug-using people of color, who are, who are consistently targeted more than others. And like any system, that polices people, it disproportionately impacts already marginalized groups.
Joshua B. Hoe
And, I guess there’s kind of three, it seems like kind of three baskets of things that happen here, you’ve kind of got the kind of, you know, what used to be considered the kind of more conservative solutions, which are like exceptions for the life of the mother or exceptions for rape and incest or things like that, then you’ve kind of got this other kind of area of all these things that become criminalized, like you were just mentioning, you know, taking drugs at the wrong time, which we’ll talk more about in a second as we go through some of the case studies or cases that you all have dealt with. And then you’ve also got the people who are actually trying to get an abortion and get criminalized, I think. Is there any way to kind of put all that I think a lot of times people talk about one of those things, to the exclusion of the others? Is there a way to kind of put all those things in the same kind of human rights basket I guess, because I think people tried to divide them out to try to you know, and I think the reason maybe we got where we are now has Something to do with this kind of constantly, you know, shrinking this circle and shrinking the circle if that makes sense?
Dana Sussman
Yes, I mean, you’ve absolutely nailed it. And it’s one of the reasons why our organization had to be founded separate. And apart from the major reproductive rights organizations, they were focused on access to abortion and didn’t have time or space to focus on the criminalization of pregnancy. But the same forces are at play in both, and it’s racism, patriarchy, fetal personhood. And we have done a disservice to the movement by thinking of them separately, and of not thinking about access to abortion as also a criminal justice issue, or, you know, issues surrounding economic justice and voting rights. And all of these are all interconnected. But specifically, when we talk about the criminalization of pregnancy, the idea that a pregnant person is not entitled to their own decision-making and bodily autonomy, and the same rights and freedoms that everyone else has. Because they are the host of another being that has been bested with all the rights and privileges and protections, that is both this that is just the same reason why people want to restrict abortion access or want or use that to justify restricting abortion access, as they do to criminalize pregnancy. And most of our clients starkly have been people who have had wanted pregnancies. And it’s, I think, even in the mainstream abortion rights movement, it’s kind of hard to talk about people who have wanted pregnancies, you know, they’re so focused on, you know, the act, you know, maintaining access to abortion, and D stigmatizing abortion, that we often forget that many people, a large percentage of people who choose to have an abortion are already parents. So we’re not really talking about different populations, we’re talking about the same population over at a different point in their lives. And, you know, the issue. So we need to be talking about these together. And I think what this decision has forced us to do is at least start to think about them all as criminal justice issues now because everyone is facing criminalization, the patients, the providers, the helpers, we’re all in this now together. And I’ve started to see just in the past few weeks, a lot of those silos breaking down because it’s a crisis. And we have to act as it’s as if it’s a crisis and start working together.
Joshua B. Hoe
Well, let’s talk about some of the cases that you all have dealt with. So I think it’ll give people a wider view of the ways that this criminalization could potentially come down. The first case that I read about was a Dora Perez in California. Miss Perez, based on the poor advice of counsel pleaded no contest to voluntary manslaughter of her fetus, a crime that at the time, I don’t know if it still does or doesn’t exist in California. Miss Perez experienced a stillbirth in 2017, which was attributed without scientific basis to her use of a controlled substance. This seems like a number of problems. There’s a lot of things going on here. Well, first, why was a prosecutor trying to get someone sentenced for a crime that didn’t exist in the code? The first question,
Dana Sussman
I don’t know that I can answer that exactly. But the what is clear from the legislative history of the law, under which he’s he sought the original, you know, he charged her with not her plea, which is a provision of the homicide statute that created the crime of fetus side exempted from it, actions consented to by the pregnant woman, and that was written with the intent to ensure that pregnant women would not face criminal charges for the loss of their pregnancies, whether that was because they sought an abortion or anything else. And the Republican lawmaker from 1970, who sponsored the bill, both in legislative testimony and then subsequently when the first woman was charged with this in the 80s, I believe, Roe, in that case, this was never intended to be applied in this way. So we had we have a law of fetus side law that was passed with the intention of protecting a pregnant person. There are 38 states now with fetus side laws that basically create a status of victim for a fetus when there’s an attack on a pregnant woman and she’s harmed and the pregnancy, there’s a harm to the pregnancy, so you can charge two separate crimes. But what’s happened time and again, is that the pregnant woman is charged herself. And in this case, he brought this charge. Miss Perez, was indigent and had a turn an attorney she didn’t choose who advised her to plead to this non-existent crime that the crime of manslaughter of a fetus doesn’t exist in California. It still doesn’t exist in California. If not for an external actor who harms a fetus or a pregnant person who harms a fetus just does not exist. And in subsequent California cases, the California Supreme Court determined that it is unconstitutional to plead to a crime that doesn’t exist. And so we were able to use that along with her local council to argue that her plea was unconstitutional. And the court agreed and released her and then the DA in the case decided not to renew, you know, start all over with the underlying murder charge. So she is currently released and trying to put her life back together after serving four years in prison on an 11-year sentence.
Joshua B. Hoe
And I think you know, what I think about in a postdocs world here is that while that might not be illegal in California, I suspect it probably would be illegal in a lot of other places. And we’re not necessarily talking about people who are attempting to have an abortion, we’re talking about people who took drugs that the prosecutor might think could be attached to danger to the endangerment of a child is that it doesn’t even have to be death. Right. It just has to be some way harming a child.
Dana Sussman
Yes, you’re absolutely right. Yep. So there are three states right now that where the highest court in the state has interpreted their criminal laws to apply to fetuses, Oklahoma being the most recent one in 2020. That case that went up to the Oklahoma Supreme Court was a felony child neglect case. But the same principles have been applied in manslaughter cases. For example, we know of four cases in Oklahoma in recent years in which a woman was charged with murder or manslaughter for experiencing a miscarriage or stillbirth. In one of those cases, Brittany Pula, who we now are working with. She experienced a miscarriage at 15 to 17 weeks pregnant. She was 19 years old, she went to the hospital, she shared voluntarily that she was using meth and marijuana during her pregnancy. She was charged with manslaughter. She was held in jail for a year and a half during COVID Couldn’t make bail, and went on to a one-day trial and was convicted and sentenced to four years in prison, which she is currently serving right now. And that’s the minimum sentence for manslaughter in the state of Oklahoma. Her lawyer did not put on any witnesses on her behalf. And the medical examiner’s report listed a whole host of possible contributing factors for the miscarriage. It did list methamphetamine as a possible contributing factor but ultimately determined that the cause of the miscarriage was unknown. And we have been working with many medical experts, all of whom have said that methamphetamine does not cause pregnancy loss. In fact, if it did, you can imagine more people would be trying to access it right now. For that purpose. But despite that, despite the lack of medical evidence, despite the lack of causation, she was still convicted. And she is serving her sentence right now in Oklahoma in prison.
Joshua B. Hoe
And I could certainly also see people being prosecuted for endangering a fetus or endangering a child in one of these states, where someone might have used drugs even prior to knowing that they were pregnant if they if the law sets up, that life begins at fertilization. Am I crazy here? Or am I they’re not?
Dana Sussman
You’re not at all. And we have seen in the states that exposure alone is essentially per se, felony child neglect. You don’t have to show that the fetus or the baby was born has experienced any harm has any symptoms of withdrawal or any other transitory or temporary conditions associated with the drug use. Because for most in most, in nearly all cases, these are if there are any symptoms of withdrawal, it is transitory and temporary. And the best treatment is to keep the mother and the baby together. But you don’t even need to prove that you can show that she had she there was a positive talks on a drug test that was done at the hospital of the baby or the mother often on consented to often not even shared that that’s happening. And in so many cases that we’ve seen, there’s false positives, or I shouldn’t say false positives because it’s actually positive, but it’s because they used Sudafed, or prescription for ADHD, or something else medical marijuana that for which they have a lawful certification for because pregnant people have medical conditions that don’t go away when they’re pregnant or become worse when they’re pregnant. So we have seen wild and bizarre and horrifying cases of mothers being separated from their newborns because of a single, a single unconfirmed positive toxicology at birth. And so Sometimes when I’m when meconium is tested on the baby that could trace back to something that happened weeks or months ago. And they may have had a prescription for something weeks or months ago and decided not to use it. But that still shows up in the baby’s meconium. It is. It is half get ask when you think about all the ways in which pregnant people can be uncertain pregnant people are surveilled and policed, and the outcomes are, are so deeply traumatizing. People are unable to breastfeed, they’re unable to see their newborn. There are other children that they have custody of me have to be removed from their homes. While all this is going on. We have a case right now, in which a woman is still experiencing postnatal bleeding, and is in jail because of a single, unconfirmed talk toxicology test. And her partner can’t even give her sanitary pads or underwear, they’ve turned him away. So that’s the trauma that ad is being inflicted on new parents by the state right now.
Joshua B. Hoe
It’s, you know, I mean, I think a lot of people, you know, Will their immediate pushback will be well, prosecutors won’t prosecute this, which is clearly not true, because we’re talking about cases where they are prosecuting these things. And these new laws, literally give them a lot of new ways to novel ways to prosecute these cases. So in my experience, prosecutors tend to prosecute as a general rule, I don’t Is that your experience, too? I’m guessing.
Dana Sussman
Yeah. You know, what’s been a learning experience for me, which I’m sure you are much more deeply familiar with is that we best prosecutors with so much discretion. One county is prosecuting dozens of these cases, you go to the neighboring county, they’re like, I don’t care. This is not something that I care about. This is not what I want to use my limited office’s resources on. So this becomes just if I’m a prosecutor that thinks that I can say, you know, quote, save babies, I’m going to use this to do that. And, you know, the trauma, the lack of any medical support for doing this, the fact that they’ll be worse baby and family health outcomes because of it doesn’t matter. And I think that in so many of the cases that we’ve seen that have allowed these cases to persist, where courts have said, Yes, this child abuse law was should be applied to fetuses is because a single prosecutor decided I’m going to try this legal theory out, I’m going to decide that the law that was intended to prohibit someone from taking a child into a homegrown meth lab, it should be applied to a someone who takes drugs prescribed or otherwise during pregnancy. I’m going to try that out. Well, it worked. And now in Alabama, we’ve seen almost 600 of those cases in the past 15 years.
Joshua B. Hoe
And I think you mentioned one of the cases in Oklahoma was going to talk about a little earlier. But I think another thing people are really concerned about is how this plays out with miscarriages. You know, there are people who legitimately have miscarriages, who, you know, in many cases, I think we’ll probably be prosecuted. Is that fair?
Dana Sussman
Yes, I think that as we try to predict the future, miscarriages will be swept up into this in larger numbers, because we know that people who use medication abortion pills, it looks medically indistinguishable from someone who’s experienced a miscarriage. So if you are experiencing a miscarriage, and you need medical attention, you call 911. You go to the hospital, you go to your provider. And at some point earlier in your pregnancy you shared with someone in your life that you were stressed out about being pregnant, you were unsure if you could afford another baby, you express some ambivalence about being pregnant, that could be weaponized against you. And that miscarriage is now suspect. And so that will open up a lot of people to the possibility of an investigation or an arrest or prosecution. And it may mean that we will see more miscarriage-related prosecutions or investigations, but it also is a mechanism by which people will be policed for actually self-managing abortions, which is going to be even more common those cases have happened we’ve worked on many of those cases in the past, but I think we will probably see more of both of those kinds of cases. Again, if a prosecutor wants to do it they have the tools that they can use to do it unfortunately but one thing I want to be very clear about no laws currently no abortion bans currently or any other laws explicitly criminalized self-managed abortion, with with with vert with a couple of specific exceptions. So if a prosecutor is going to prosecute someone for self-managing and abortion, they are going to use another law. And they’re going to try and get that legal theory to stick. So they’re going to exceed their authority, and they’re going to go rogue. And they’re going to use another law to try and address this. Because they don’t have currently law laws in most states to do it directly. But again, there’s so much discretion available to prosecutors and courts are often deferential and ways to these ideas or open to these ideas. So it’s a bit of an open question. But I just want to be clear that and the other piece of this too, is that the current abortion bans on the books, do not criminalize the pregnant person, either. It’s the focus is on the provider. But again, we will see, you know, what a prosecutor attempts to do. And then like we come in, and other groups come in, and we shine a light on it, we try to hold them accountable. And we, you know, make all the legal arguments we can make as to why this is impermissible.
Joshua B. Hoe
And I think a lot of times people misunderstand some things about how the courts work. Like, for instance, yes, it’s great that people like you are coming in and trying to help these folks. But as you mentioned before, one of the ladies that you helped ended up spending four years in prison before that help actually manifests itself. I think people think it’s like some kind of magical instant process, and that you can in the time before you get relief, and most people don’t get relief. That somehow magically, everything goes great during that time. And that’s not the case. Right?
Dana Sussman
Right. And I would say even like, let’s back up even further, you have someone who’s under investigation, you have someone who’s arrested and charged their mug shots all over the media, their, you know, their name is in the news, or even just like the local news, which matters even more for their community, they’re separated from their kids and their family, they can’t get they can’t go to work. There’s highly stigmatized because we’re talking about people that have been designated as bad mothers, right? And all the ways that our society, judges, women are people who can get pregnant. There’s so much that happens, even before we get to make those legal arguments, right, there’s, you know, if we if the person can’t post a bond, they’re there. They’re in a local jail indefinitely, with Brittany Pula. She was there for 19 months before she even went to trial. So you know, the system is so stacked against defendants as you know, and this is not unique to this area of the law at all. But and then the vast majority of cases we might never know about, you know, we’re a small organization with three full-time lawyers, we don’t have access to every case, and we can’t swoop in every case. And so we can only help them the ones we know about and the ones we have resources to help with and the ones that we may actually think have a fighting chance, because in some states, the ways the laws have been interpreted, make these cases so common, and there’s very little we can do to stop them.
Joshua B. Hoe
So you talked about this a little bit earlier, but there’s often the notion of people who have legitimate health needs have medicine or get medicines for those health needs, and then also are pregnant. I one of the cases that stood out to me was Kimberly Blaylock, who was charged for renewing a prescription for pain medication while she was pregnant in Alabama. Am I getting the facts of this basically, right?
Dana Sussman
Yep, yep. So Alabama’s law the one I mentioned earlier, is called chemical endangerment of a child. It has been for tight for 10 years, it was applied to people who are pregnant and using both illicit substances and prescription medication. After some really fantastic investigative reporting in 2015. There was outrage around the fact that women who were using antidepressants while pregnant pursuant to a prescription, were also facing criminal charges. And the law was actually amended narrowed to not apply to the use of prescription medication during pregnancy. A rare legislative victory in that state.
Joshua B. Hoe
So Alabama, I mean, doing criminal justice work. Trust me there’s Alabama is definitely one of the worst. Yes, top-five territory there for
Dana Sussman
Oh, yes. And number one for pregnancy-related criminalization. So Kim had a long-term back condition, degenerative discs in her back, exacerbated by a car accident. She’s pregnant with her sixth child, she was a long-term pain patient and an orthopedist.
Joshua B. Hoe
Just want to emphasize this she already has you said this her sixth child. So it’s not like she’s trying to you know, she’s even if you bill if you’re one of the people who are you know, right to life or whatever have, you know this is a case where someone actually had no intention of aborting a child?
Dana Sussman
I suspect I don’t know that you know, it all the conversations we’ve had with Kim, this was a wanted pregnancy. She’s an amazing mother. She was refilling her pain medication prescriptions, she was actually not taking them for most of the pregnancy until very late in the pregnancy. Because the pain became unbearable. She was very open about her prescription medication at the hospital, she gave birth to a healthy baby boy. And the prosecutor tried to charge her we think with chemical endangerment of a child, we got involved pretty early and explained to him that he can’t because the law has been amended. She was using prescription medication pursuant to a valid prescription. He then turns around and charges her with prescription fraud, which we think is the first time this country has ever anyone has ever charged anyone in this country for engaging in fraud because they filled a prescription while pregnant.
Joshua B. Hoe
I am laughing to stop from crying.
Dana Sussman
I know, I understand his theory of the case is that she intentionally withheld the information about her pregnancy, in order to continue getting her pain medication. And in order to establish that she engaged in fraud, she would have had to have withheld material information that would have changed the course of this relationship with her doctor. And what the prosecutor didn’t know is that maintaining your dosage for pain medicine, while pregnant is actually the standard of care. And that managing your pain medication while pregnant poses fewer risks to the fetus than actually cutting someone off from pain medication, because that can cause withdrawal and other symptoms that are very dangerous and can cause pregnancy loss. So in fact, what the prosecutor was theorizing is that the doctor would have cut her off if he had known that she was pregnant. But actually, the doctor would have should have would have kept her on? And how would she know that? You know, like she’s not a doctor. She’s not reading what the CDC recommends, as far as
obviously not a harm reduction specialist. And she’s not a public health person will put it out.
Dana Sussman
And also, you know, there was a factual dispute, She claimed she shared that she was pregnant, they also never asked her whether she was pregnant. So it or we all as people with the capacity for pregnancy during childbearing years required to carry a sign saying I may be pregnant, even if you don’t ask me I’m under a legal obligation to disclose my pregnancy status. So we ultimately were able to get the charges dropped after about a year of speaking with the prosecutor filing various motions. But ultimately, what turned the table was the prosecutor speaking with a whole host of local medical experts, essentially saying we maintain women on pain medication throughout pregnancy regularly, like this isn’t even unusual like this is normal. And the idea that you know, she withheld this material information with the intent to defraud her doctor was just so not close to the reality of things. But I don’t know, I don’t know if we would have gone to trial if we would have won, because there is a standard that people hold pregnant people to that is just, that is just so outrageous, and so unrealistic. And we often do not win at trial. And so we work to try and get charges dismissed before trial, we often will win on appeal. But a trial is a very, very hard thing.
Joshua B. Hoe
I mean, that’s the reason why, you know, over 90% of all cases are won by the prosecutor and over 90% of all cases, our plea bargain because people don’t want to get to trial because
Dana Sussman
Yeah, the risk is so extreme. Yeah, exactly.
Joshua B. Hoe
I think it’s 96% of cases that go to trial are won by the prosecutor. I could be wrong on the exact stat on that. But I mentioned this before, too. I mean, there used to kind of be a consensus when these laws, it was kind of one of their ploys, when they originally started doing this stuff, that the laws would not be used to punish the woman they’d be used or, you know, or a person who was pregnant. I don’t want to exclude other possibilities. And not. So it’d be a bit more about the providers or and that seems to be changing fairly quickly. Am I wrong about that? Or?
Dana Sussman
Well, I think that’s a narrative that’s very helpful for the anti-abortion folks is, you know, we never want or, you know, historically have never wanted the pregnant person to be the one facing criminal charges. I think that’s actually changing. I think the, in what I’ve been reading, what my understanding is, is that there’s a bit of a splintering and the movement and things are moving more and more extreme, as we’ve seen, with the lack of exceptions for rape or incest, which even you know, practically speaking functionally, those exceptions are meaningless And I think a real distraction. But even you know, the fact that we’re seeing laws being passed that have none of those, I think, demonstrates just how further extreme the movement has gone, the abortion movement has gone. And I think there is a splintering of this idea that, well, if abortion is murder, pregnant women shouldn’t be charged criminally. Historically, though, the narrative has been we don’t want to charge the pregnant woman, we were gonna go after the person who provides the abortion. But what I say to that is, then why are you passing fetal personhood laws, fetal personhood laws redefine what a human is under your state’s criminal code. If you’re going to do that, you are going to criminalize the pregnant person. And, and that’s exactly what’s happened. And where has the outrage been, from the anti-abortion folks about the 1700 cases that we’ve documented, most of which involve a wanted pregnancy?
Joshua B. Hoe
So it’s also not exactly a great thing necessarily to go after providers. I think everyone’s familiar probably, to some extent, with the recent case of the 10-year-old who became pregnant as a result of rape. I think first people were shocked by it, then, in abortion folks were suggesting and ever happened, then those same folks were Daxing. And going after the abortion provider. We’ve talked a lot about the dangers to pregnant women. But there are also a lot of risks and different levels of risk to medical providers. I saw a clip just earlier today on CNN, where a doctor was talking about now being worried that they always have to reach out to lawyers before providing treatment of any kind when they’re dealing with anyone who could be potentially even potentially pregnant. I know you probably don’t focus on this stuff, per se. But this has to be a clear and present danger, both to people trying to provide care to women and other people who might be pregnant, and also to women and other people, and also to providers.
Dana Sussman
Absolutely. I think, you know, when we think about criminalization, you know, we’ve been doing this work for two decades, but the folks who have historically represented, the providers have been the constitutional rights folks, the ones who say, I’m going to represent the providers so that they can, they can provide procedures to their patients, and they’ve been the plaintiffs, the clinics, the providers have been the plaintiffs in all of the major cases that have given us these rights, to begin with. And all of a sudden, now they’re, they’re going to be criminal defendants. And they are now putting their own liberty and safety at risk, and also the lives of their patients. Because now this becomes a decision that the legal department at the hospital has to make. And they don’t know what they’re, you know, no one knows what they’re doing before they can even treat a pregnant person. And so I truly think that we are going to see people die, we are going to see people truly deeply traumatized. We already have I mean, there are reports of people having to labor and deliver 16-week-old fetuses that have caused massive amounts of bleeding and trauma. And you know, and it’s just a complete and utter and we think about it with the 10-year-old case, it’s just devastating. We are treating, we are treating pregnant people to capacity for pregnancy as less than human, because we have valued the fetus, above all. And so I don’t even know we talk about fetal personhood. It’s almost like fetal supremacy. When we look at this balancing what’s supreme, it’s the fetus. And even if you’re not pregnant, but have the capacity for pregnancy, we’re seeing rights being stripped away. So it’s really, really dark. And all I can keep doing is like ringing the alarm bell about what we’ve seen before. So it can educate us about what we’re going to see now and in the future.
Joshua B. Hoe
One of the bases for the Dobbs decision obviously was federalism. But the way state lawmakers are responding seems to bring into question ideas like privacy, patient, Doctor relationships, freedom of travel, and even interstate commerce. It was federalism. Is that? Does the court is the court correctly apply? Does federalism is supposed to work that way? I guess. I mean, it seems like I seem to remember a Supremacy Clause and some other things. It’s been a while since I’ve dived into this stuff.
Dana Sussman
Right. Well, I mean, it’s like in the gun regulation case out of New York. You know, there’s no, there’s no concern about reaching into states and saying you can’t do that. But when it comes to abortion and privacy, right, rooted in the 14th amendment that has to do with bodily autonomy for half the population, they’re actually saying we’re gonna send it back to states and let them decide. So it’s like selective federalism and I think it’s just all outcome. It’s all outcome driven. We’re going to latch on to whatever. Fear theory advances our personal mission. And I think that what I find most concerning is, you know, you see Kavanaugh and his concurrent saying, oh, interstate travel guaranteed not a problem. People can travel. That’s like that’s even more specious than the privacy rights underlying undergirding the 14th amendment. You know, that’s not that that what that didn’t exist in 1868. In the 14th amendment. That’s like, you know, we are, we are being incredibly selective over the principles that are supposed to sort of provide for an organized democracy because we are just looking at outcomes we are just looking at this is my ideology, and I can use it and I will use the tools that I have to interpret the Constitution and laws in a way that gets me to the outcome that I want.
Joshua B. Hoe
That Kavanaugh little bit seems I mean, even for him, kind of absurdly naive. We already talked about kind of the length of the legal process and how bringing charges can happen before there’s ever relief. And we’ve also got this kind of novel enforcement mechanism that states have been trying to play with called civil enforcement where people can sue people. And so you’ve got all these cases that are probably going to come about Like say, for instance, there are states that are definitely experimenting with the idea of allowing people to bring suit against people for leaving the state to get an abortion or you know, whatever. Is that just intentional bad faith by Coronavirus, ease really, I can’t believe he’s that, you know, clueless? You’re like a Kavanaugh mind reader?
Dana Sussman
So hard to know, so hard to know.
Joshua B. Hoe
This is the same guy who was waxing poetic a couple of years ago about bringing back firing squads and, and hanging, So?
Dana Sussman
I mean, he’s also the one who like, you know, had that calendar from his time at the college or boarding school? I mean, with his drinking games, and whatever else. I mean, I truly don’t know if it’s just if it’s what allows them to sleep at night maybe to be like, oh, yeah, people can just travel, that’s easy because everyone has a couple $1,000 To spend that’s available to them to pay for the procedure to pay for three nights at a hotel to pay to travel across country. So like, even just the practical, like sure, you can just travel across to another state.
Dana Sussman
Go after you. And if they do, we’ll just the case, we’ll just come up to Supreme Court in five years. And then we’ll say that that was impermissible. So you’re fine. You know, like, to me, to me, the Supreme Court is so at least the conservatives on the Supreme Court are so far removed from the struggles and realities have so many people like, and they only talk to each other. It seems right. Like they’re only talking to a few people in the Federalist Society, and the Federalist Society, right, there’s no diversity of opinion. There’s no diversity of experience or background or education or anything. It’s literally like, I don’t know that they have ever encountered anyone who has had to get an abortion in challenging circumstances, or maybe even get or maybe even talked about having an abortion period. I mean, there were certainly briefs filed on behalf of hundreds and hundreds and 1000s of people have had abortions, including former Supreme Court law clerks and partners at firms and things that they would care about, or seemingly people who might have interacted before. But you know, it’s sort of like the Lawrence vs. Texas decision that that found the sodomy law, the anti-sodomy law in Texas to be unconstitutional, that the story that I’ve always heard about that case is that all these former law clerks came back and announced that they were gay, like, came out of the closet to their former bosses, Supreme Court justices and said, you claim you don’t know a gay person. You know, me. And that was the story of sort of, like, you know, seems quaint at this point in time. But 20 plus years ago, 20 years ago, that was a major narrative. And I just think that there is such a lack of empathy and understanding of how people live their lives right now. I mean, Amy Coney Barrett’s questions during the Supreme Court argument was essentially like, well, you can just adoption is so easy and you could just drop off a baby at a firehouse so what’s the problem? You know, that seriously and that I think made it into the majority opinion, but their safe haven laws now. So despite the fact that black women are, you know, depending on the state you live in five times more likely to die during prep during pregnancy and childbirth, that, you know, being forced to give birth to a baby that you do not want is trauma that most people who end up not accessing abortion actually don’t choose adoption. In the end. All we don’t have, you know, pregnancy discrimination laws are not robust. We don’t have paid childcare. I mean, like, look, but But you could just, you could just be pregnant for nine months, and experience all the complications that this country allows to persist, particularly for people of color, and then just drop the baby off at a firehouse and move on with your day.
Joshua B. Hoe
And there’s also groups like the association of Christian lawmakers, utilizing the language of human trafficking to describe abortion seekers and providers who administer abortions to people who travel across state lines, as someone who’s worked on those kinds of things. This kind of language creep is this. I see it in other areas of criminal law all the time. But it’s always a bad sign when you’re seeing this kind of creep.
Dana Sussman
Yeah, well, I mean, when I worked at this is far afield from from from this topic, maybe, or maybe it’s not anymore. But when I worked on anti-trafficking stuff, I mean, it was always this, there was always this like, lasciviousness to the interest surrounding it because everyone assumed it was about sex. But most of the work I worked at most of the cases I worked on were about labor, trafficking of adults, you know, people, undocumented folks, immigrants, people who were, you know, convinced to come to the United States under particular terms, and those terms shifted as soon as they got here. And so be you know, I was always very wary of sort of the religious rights co-opting of a lot of this and using it to sort of talk about, you know, it sort of their perverse interest and sexual things.
Joshua B. Hoe
And see them use it a lot against sex workers.
Dana Sussman
Oh, completely. Yes. And justify Yes, absolutely. And justify restrictions on the ability for sex workers to be on certain platforms and to, you know, and to move them into more dangerous and, and difficult ways of earning a living completely. And so I do I mean, but they’ve they have been so brilliant at marketing, their, their beliefs and their strategy over the years. Not only that, but I truly, I mean, I think what’s actually more has been far more effective, because the vast majority of Americans do not agree with this decision, is just getting people on the court singularly focused and getting people on the court has been more effective than trying to change public opinion or use, you know, different messaging.
Joshua B. Hoe
Yeah, I think I’ve said many times that they spent several decades really working incredibly hard to do something that seemed impossible, they pulled it off, and we didn’t fight them very well. That’s unfortunate. But it seems to be true.
Dana Sussman
I do it in so many ways like this. We’re just out, outplayed.
Joshua B. Hoe
There’s also surveillance issues, like birth control tracking apps and big data being used against women. Do you have I assume you have concerns here as well?
Dana Sussman
I do. But I think they’re not dissimilar from the concerns that criminal defense folks have had for a long time around data surveillance. So I don’t think the period tracking apps are where we need to be worried about I think it’s going to be the more mundane text messages, Google searches, things like that, that are already weaponized against people. I think that people who are handing over their devices to police because police are very coercive about this when they’re doing investigations. You know, they may be arrested on a drug possession charge, and then the police get access to someone’s phone and they see something about, you know, pregnancy or abortion. That’s, you know, so it’s going to be sort of the ways in which we already see this information. weaponized, it’s just that, the net has expanded because police and prosecutors are going to have a vested interest in identifying, you know, the ways in which someone might have demonstrated their interest in getting an abortion or their ambivalence about being pregnant through their digital footprint. And as we talked about earlier, with miscarriage cases, I think the way my prediction is that the way that a prosecutor will distinguish a miscarriage from a self-managed abortion is by looking at who they spoke to, via text or on social media platforms, what searches they did on Google and we’ll try to build a case through that kind of circumstantial evidence.
Joshua B. Hoe
That’s very disturbing. You know, I mean, you can literally do searches for anything that doesn’t it? You’d hope that people know that doesn’t demonstrate intent. But apparently, it does since some courts. One other question that seems pretty important to address, at least theoretically, law enforcement resources are zero-sum. So it seems like that resources used, you know, for instance, to investigate someone who had a miscarriage could not be used to investigate maybe a gun homicide. This creates a whole bunch of new novel ways to criminalize people who could be pregnant. Does this is there a real risk that this also trades off with public safety and a lot of less predictable ways?
Dana Sussman
You know, it’s possible, because as you said, officers have limited resources. So you’re going to take resources away from something else. But my concern, frankly, is that states will just allocate more resources, you know, police budgets or ballooning. Prosecutors Offices, I imagine I’m less familiar with the budgeting process for that. But I think that there’s there can be an argument to be made by a prosecutor that they need more funding because they have all these new criminal laws to enforce that they didn’t have a few days ago, a few weeks ago, a few months ago. So you know, we have seen a massive I mean, I don’t need to tell you this, but we have seen a massive expansion of criminal laws in this country that didn’t exist in 1973. So you know, when we talk about what happened before Roe, most women were not prosecuted, although some were and the narrative that it wasn’t that no one was, is incorrect. And there’s the case, the case of Shirley Wheeler, that galvanized people at the time a woman in Florida who was prosecuted for an illegal abortion, but the criminal legal system in 1973 is unrecognizable compared to the criminal legal system in 2022. And the ways in which we criminalize poverty, we criminalize mental health issues, we criminalize public health issues, and we criminalize education issues like it is just an entirely different infrastructure than we had in 1973. And so just as the war on drugs transformed our criminal legal system or our police budgets, our prosecutor offices, I could see this being very similar. It’s destabilizing, but it’s also a way in which prosecutors can make the pitch that they need more money.
Joshua B. Hoe
Well, I think at the very least, it would mean that if you are right about that, that while we already have the largest system of incarceration in the world that could multiply and you know, in many places, for instance, in Michigan, our women’s prison is already incredibly overcrowded. And there’s only one prison because, you know, of the ratio between women and men, and that, obviously, this could raise the bar in a whole new way in terms of increasing the amount of incarceration in the country.
Dana Sussman
Yep, completely. And, you know, it’s, I’ve, we’ve been working with National Association of Criminal Defense Lawyers. And I know, their executive director has said this, that, that, that and others associated with the group that, you know, this looks to them, like the war on drugs, the ways in which new laws are passed. at warp speed, you know, that we’re seeing things change on a daily basis in different states, and that there’s such an a possibility of an expansion that will be transformative for the field of criminal defense. And for, you know, obviously, people’s lives, the resources that are allocated to prisons, the resources that are allocated to police, and investigative methods. So, you know, I don’t want to be overly hyperbolic, because we could see a lot of pushback like there is I think public opinion is with us on many of this stuff. And so holding prosecutors accountable shining a light on these cases, we have an opportunity that we shouldn’t we shouldn’t take for granted to ensure that if this is happening, that people know about it, and that people get outraged over it, and that we bring in the medical community and that we bring in the public health community and that, you know, maybe there’s pushback maybe they finally reached a point where they’ve gone too far.
Joshua B. Hoe
Yeah, I’ve talked to some people even anti-abortion people who feel that a lot of these laws have gone too far. Does that I mean, it sounds like maybe you feel a little hope that we’re going to get you know, the resistance is going to somehow beat the empire.
Dana Sussman
You know, I have to have hope because I can’t you know, I just have to I think their game is too To make us give up hope and to just be in despair and be disempowered, and I think that we have found really, really strong and good advocates in the most hostile of places when it comes to reproductive rights more broadly. I think building the connection between people who have wanted pregnancies and people who are seeking abortion is really important because prosecutors won’t care if you’re pro-choice or pro-life to use sort of the old terms if they’re going to prosecute you for a pregnancy loss, or because you expose your fetus to some perceived risk of harm, or in some of our cases, which are not criminal, the hospital gets a court order to do us as Aryan that you don’t want because they are worried more about the fetus. And they’re worried about you like that, that cuts across the silos of anti-choice and, and, and pro and abortion rights. And I think Ken making the connections there is incredibly important. And then I think we also need to look at this as a criminal justice issue, there has been such momentum behind understanding how the war on drugs has been so devastating, and such a disaster for so many Americans. We people need to start to look at this as a criminal justice issue and just start sort of like activating those sort those resources around. Criminal justice reform. And, you know, and sort of understanding this and within that broader picture.
Joshua B. Hoe
Unfortunately, this has been a bad couple of years for all of us on the criminal justice reform side.
Dana Sussman
Yes. Yeah.
Joshua B. Hoe
I do hope that that would help. I would hope. A lot of this kind of sounds like we’re, you know, we’ve been talking about today sort of sounds like a horror movie. You know, are there ways that you would recommend that people kind of best look out for themselves during this period of both uncertainty and terror in it for a lot of folks?
Dana Sussman
Well, I mean, it’s really I, you know, some of this is incredibly hard to stomach, even myself to sort of say, but I think that there’s a lot of really good information out there about protecting oneself and their digital footprint. Digital Defense Fund is an amazing resource that has some specific abortion-related content around using secure servers that are secure websites that don’t track you, using VPNs. Using signal for text messaging, I think if you are looking to access information about abortion medication in a state that has banned abortion, I would highly recommend you check that out first. And then I also think that there is, you know, keep your information, keep your personal information to a very tight-knit group of people. And fortunately, some of the cases we’ve worked on have involved a family member, a neighbor, an ex-partner, reporting someone to the police. And I And that I think is possible here. I think that also has, I think those SBA civil bounty laws have sort of activated this idea that everyone can be an agent of the state. So we have to be very careful about who we share this information with. And then, you know, if you are in a position of privilege, with respect to disposable income, I would really support you, or encourage you to adopt an abortion fund in a hostile state in a southern state or a state that’s banned abortion and donate monthly, this is not a need that is going to go away. And I worry that as we move on to the next crisis, people will forget. And these are the funds our money in money out, the money comes in, it goes out to support someone getting an abortion, so they need people to stay with them. So if it’s $5 a month, or $10 a month they need people who are committed to staying with them and continuing to support them. Because this the need won’t go away but the attention might.
Joshua B. Hoe
My friend. Amanda Alexander always asks about talks about the power of dreaming big and of having freedom dreams. This season. I’ve been asking people about their freedom dreams. Can you share any dreams you have? I suspect some of them will be getting rid of these laws?
Dana Sussman
I don’t know, I often don’t think big enough, I think but I would love to see a world in which everyone gets the care, the prenatal care or the pregnancy-related care that they need without any state involvement. I don’t want to see the police involved in anyone’s care. I don’t want to see the child welfare system involved in anyone’s care. I want people to be able to get free with supportive, compassionate, comprehensive prenatal care, whatever that looks like culturally humble, culturally competent, linguistically available. That is my dream that because so many of our cases originate when someone is seeking care, and to weaponize, the site at which you are seeking care in a medical emergency, when you’re delivering your baby is just where people expect it to turn. So that is my dream that we can create a system that treats pregnant people like grownups, like, they are the best experts on their needs, that they are full humans, with all the rights and liberties that every other adult in this country is given. And also that we reform our system of care, so that it is better, and so that it is completely divorced from any state involvement.
Joshua B. Hoe
I also like to ask people, if there are any criminal justice-related books that they like and might recommend to our listeners, do you have any favorite books?
Dana Sussman
I thought about this one. So policing the womb by Michelle Goodwin. It’s, it’s criminal justice, but it’s all about these cases and about this work. And it’s, it’s brilliant. And she’s a law professor in California and a brilliant writer and thinker. I would also I mean, this is not creative, but just mercy. It’s a lot about Alabama. I also love it because as someone who now runs a nonprofit, it’s also about building a nonprofit, and like all the ways in which are filled in 1000 different directions. And my tiny, tiny claim to fame is that a friend texted me when that book came out that Bryan Stevenson cites a law review article I wrote when I was a baby lawyer as a footnote, and it was like my most proud accomplishment ever that I have a footnote.
Joshua B. Hoe
Oddly enough, one of my proudest accomplishments is there was Columbia Journalism Review article that interviewed both me and Bryan Stevenson. And so we’re interspersed with each other throughout the amazing I was like, I’m like, paragraphs away for Brian Stevens.
Dana Sussman
Yes, there you go. There you go. We have a very similar proudest accomplishment moment. So those books are transformative for me in this work. And then I would also say killing the black body by Dorothy Roberts, which is sort of a reproductive justice classic but also talks a lot about the criminalization of black women in particular in the 80s. And 90s. Laying the foundation for all the cases we see now.
Joshua B. Hoe
I always asked the same last question, what did I mess up? What questions should I have asked, but did not?
Dana Sussman
I don’t know that I have an answer. You’ve asked so many great questions.
Joshua B. Hoe
Thank you. Yeah, I just always think there’s probably something you would like to talk about that I didn’t get to,
Dana Sussman
You know, I think that’s a good rule to have. But I’ve talked your ear off. So I’ll I will say that I think we’ve covered a lot of it today.
Joshua B. Hoe
Great. Well, I thanks so much for doing this. And I really appreciate you taking the time to talk with me here.
Dana Sussman
Thank you so much for for talking about this topic and for bringing it into the broader criminal defense space.
Joshua B. Hoe
Great, thanks so much. Bye, bye. And now my take Dana Sussman and I spoke for over an hour about all of the people who might be drawn into the criminal justice system as a result of the recent Supreme Court Dobbs decision. What we did not talk about is the implications for all of the women and girls and for all the other people who could become pregnant, who have or could find themselves incarcerated for other reasons, but who also could be impacted negatively by this decision. And also those women and girls and other people who can become pregnant, who could find themselves on parole and probation, and because of this decision, might find themselves subject to surveillance that could result in criminalization or incarceration. Because of this decision. All of these people can be prevented from getting abortion, health care, and from leaving the state to get abortion, health care. And all of these people could find themselves incarcerated for even trying to get abortion health care. One estimate put the number of people who could be impacted every day of around 34,000. And let us not forget that sexual assaults happen inside our women’s prisons. Pregnancy happens in our prisons, people can be criminalized for wanting to get rid of a child created through sexual assaults. Everything about this decision is dystopian, as a result, it will result in more people getting incarcerated for just seeking out health care. More people who are incarcerated, getting denied health care, and more people on parole or probation find themselves sent back to prison. isn’t for violating, or for getting we’re entirely new charges because of this decision. And to make all of these things a dice roll based on what state you happen to reside in, or what state you happen to get arrested in, seems even more bizarre, unfair and cruel. Martin Luther King Jr, talking about the arc of the moral universe bending towards justice. And I’ve long felt that that was the case. But over these last few years is really starting to feel like Dr. King might have been wrong, and is starting to feel a bit like the arc of the moral universe is bending toward injustice.
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