How a pregnancy loss can result in criminal prosecution

 Cary Aspinwall of The Marshall Project writes:

In late March, police in southern Georgia arrested a 24-year-old woman who had a miscarriage after a witness reported seeing her place the fetal remains in a dumpster.

The coroner in Tift County determined it was a 19-week fetus from a naturally occurring miscarriage, but some legal experts consider the arrest a bellwether for the criminal suspicion that surrounds pregnancy loss in many states in post-Roe America.

The Marshall Project previously examined how the way a person handles a pregnancy loss — and where it occurs — can mean the difference between a private medical issue and a criminal charge.

Nationally, federal data shows that about 20% of pregnancies end in a loss, but only a small number are investigated as crimes. In several states, a positive drug test after a pregnancy loss can result in criminal charges for the mother, and even prison time.

Prosecutions related to pregnancy appear to have increased since the Supreme Court decision that overturned Roe v. Wade in 2022, according to Pregnancy Justice, a nonprofit that advocates for the legal rights of pregnant people. In the first year after the Dobbs decision — from June 2022 to June 2023 — there were at least 210 pregnancy-related prosecutions, researchers for the group found.

Here are some states where miscarriages and stillbirths have been investigated by the criminal legal system in recent years:

Alabama

Arkansas

California

Georgia

Ohio

Oklahoma

South Carolina

Alabama

Alabama has a broad “chemical endangerment of a child” law allowing prosecutors to charge someone for drug use during any part of a pregnancy, whether the mother delivers a stillborn fetus or a healthy newborn.

Our 2022 investigation with AL.com found that more than 20 women had been prosecuted after a miscarriage or stillbirth in Alabama. Some of the harshest sentences resulted in cases where a fetus was stillborn and the woman went to trial.

The Pregnancy Justice report examining nationwide prosecutions related to conduct associated with pregnancy, pregnancy loss or birth in the first year after the Dobbs ruling found that nearly half of the cases came from Alabama.

Arkansas

Arkansas is among several states that still make it a crime to “conceal” a birth or stillbirth. Such laws date back to the 17th century, and were intended to shame and accuse women of crimes if they were pregnant and unmarried.

In 2015, Annie Bynum walked into a hospital with a plastic bag containing the remains of her stillborn fetus and ended up going to jail — and eventually prison. She was accused under the concealment law.

A jury originally convicted and sentenced Bynum to six years in prison. Later, an appeals court ruled that the jury shouldn’t have been allowed to hear evidence that Bynum ingested medications to induce labor before the stillbirth or had previously had abortions — because the charge was that she had concealed the pregnancy, not tried to end it. While pregnant, Bynum had planned to quietly let a friend adopt the baby, and she eventually pleaded guilty to a legal violation for the attempted adoption.

California

In 2022, the state passed a law banning investigations and prosecutions of pregnancy loss.

But prior to that law, at least two California women had already served time in jail and prison for stillbirths that prosecutors had alleged were related to drug use.

Adora Perez had served nearly four years of an 11-year sentence before a judge ruled her plea agreement — to a charge of voluntary manslaughter of a fetus — was unlawful, and overturned her conviction in 2022.

That only happened after the case of then-26-year-old Chelsea Becker garnered international outrage. Becker was charged with “murder of a human fetus” in 2019, but the case was dismissed in 2021 and led to Perez’s case getting a second look. Anger about the prosecutions of both women led to the change in state law, to avoid punishing “people who suffer the loss of their pregnancy.”

Georgia

At least one woman who had a miscarriage has been arrested under a state law that makes it a crime to conceal a dead body, punishable by up to 10 years in prison.

On March 20, police in Tifton, Georgia, issued a press release announcing that a dead fetus had been found in a dumpster at an apartment complex, after an ambulance was called for a woman who was found bleeding and unconscious. The next day, the Tifton Police Department announced it had arrested the woman who miscarried that fetus, accusing her of one count of concealing the death of another person and one count of abandonment of a dead body.

On April 4, Tift County District Attorney Patrick Warren announced that his office was dropping charges against the woman. His office determined that neither charge was applicable to her case under Georgia law, because a medical examiner determined the woman had a naturally occurring miscarriage.

Ohio

Ohio’s abuse of a corpse law allows a fairly broad interpretation, if applied to fetal remains: “No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.”

In 2023 in Warren, Ohio, Brittany Watts was arrested and charged with abuse of a corpse after experiencing a miscarriage at home in her toilet. She had been to a hospital prior to her miscarriage but left when she felt she was getting inadequate treatment, according to news reports. When she went back to the hospital after her miscarriage, a nurse called police and reported that Watts had given birth at home and did not want the baby — an assertion Watts’ lawyer denied. A grand jury declined to move forward with the criminal case in 2024.

Earlier this year, Watts filed a lawsuit in federal court alleging medical professionals conspired with a police officer to fabricate criminal charges against her.

Oklahoma

Criminal charges related to drug use while pregnant — in cases of pregnancy loss or infants born healthy — have become increasingly common in recent years in Oklahoma.

Kathryn Green gave birth to a stillborn baby in Enid, Oklahoma, in 2017. She was struggling with meth addiction at the time and scared. She cleaned her stillborn son’s body, wrapped him in a blanket and put him in a box. Police later found the remains in the trash and arrested her. Prosecutors initially charged her with second-degree murder, alleging that the stillbirth happened because of “meth toxicity.” But medical tests later showed otherwise: Green’s stillborn son had an infection that had caused his death, records show.

In 2022, Green decided to enter an Alford plea — a guilty plea in which the defendant maintains innocence. At her sentencing hearing, a judge said he wasn’t convinced that prosecutors had proven Green willfully and knowingly harmed her baby by using methamphetamine while pregnant, but he was bothered by her “lack of maternal instinct.”

South Carolina

South Carolina was the first state to prosecute a woman for a stillbirth allegedly due to drug use. In 2001, Regina McKnight was sentenced to 12 years in prison for giving birth to a stillborn baby who tested positive for cocaine. McKnight served eight years before the state Supreme Court overturned her conviction, in part because her trial lawyer didn’t present witnesses to challenge prosecutors’ claim that her drug use definitively caused the stillbirth.

The state charged at least 200 women between 2006 and 2021 with unlawful neglect of a child or homicide by child abuse for alleged perinatal drug use.

In March 2023, a college student in Orangeburg, South Carolina, named Amari Marsh went from miscarrying a fetus in her bathroom to being investigated for a homicide. She told investigators she didn’t realize she was pregnant until she went to an ER with severe pain. She left the hospital and miscarried later in a toilet at home (which medical experts say is common). Her boyfriend at the time called 911. Police became suspicious that she may have sought to end the pregnancy or not called 911 fast enough, records show. She was jailed and accused of homicide by child abuse — before the fetus was autopsied.

An autopsy showed later that the fetus died of natural causes due to an infection that Marsh was unaware of, her lawyer said. In South Carolina, police can arrest someone on a criminal complaint without approval from local prosecutors (called solicitors). After a grand jury reviewed all of the evidence in the case, the charges against Marsh were dismissed.

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Texas GOP push for sweeping anti-abortion law which includes century old criminal statute

In late March, women who had suffered severe pregnancy complications and were forced to leave Texas for care sat in the state Senate chamber and implored Texas lawmakers not to make such situations even worse, according to Bolts. Some had previously sued the state over its abortion bans, after being denied needed medical care in Texas. Devastating fetal diagnoses—one woman learned that the fetus was developing without a skull and would not survive, another was told that severe complications with one developing twin threatened her life and the life of her other healthy twin—left some scrambling to get over the state line. 

But instead of expanding medical exceptions to the state’s abortion bans in order to protect people in these circumstances, the women said, measures being pushed by Texas Republicans threatened to further criminalize them and their loved ones. 

The senators had been hearing testimony on abortion legislation, including a bill that purported to clarify the narrow medical exceptions in Texas abortion bans, following reports of deadly delays in care due to the vague language and penalties of up to life in prison for doctors who violate them. For weeks, that bill, Senate Bill 31, dominated advocacy efforts and headlines. This was in part because the bipartisan measure, deemed a priority bill by even the staunchest anti-abortion lawmakers, contained what some called a “Trojan Horse” provision: By including an early 20th-century, pre-Roe abortion law among the several abortion bans that SB 31 amended, critics said the bill could help resurrect the century-old abortion ban that would allow for criminalizing pregnant people seeking abortions, along with anyone who helps them get the procedure, even if it’s out of state. Eventually, the bill’s authors agreed to add language clarifying that the legislation was neutral on this issue, and it passed the Texas Senate last week. 

Yet Texas Republicans have at the same time been pushing forward another sweeping anti-abortion bill, Senate Bill 2880, which also includes language that could be used to enforce the same pre-Roe ban, often called the 1925 law. 

“This is a backdoor effort to fully reinstate the 1925 law,” Houston-area Democratic Senator Carol Alvarado said last week, just before SB 2880 also passed the full Senate. “It is a vote to criminalize women, trap them within the borders of Texas, and to threaten anyone who tries to help them, regardless of whether the abortion occurs legally in another state.” This includes situations where the pregnancy is a result of rape or incest, or where the fetus has an anomaly that means it will not survive—none of which are an exception under Texas law. 

Multiple Texas attorneys who specialize in reproductive health told Bolts that SB 2880 and its inclusion of language amending the state’s century-old abortion law could constitute an unprecedented step toward the sweeping criminalization of abortion in a state that already has some of the strictest abortion laws in the country. The measure, billed as an effort to crack down on abortion medication following an influx of the pills into the state via telemedicine, would allow anyone to sue individuals or companies who prescribe, manufacture, transport, or distribute abortion pills to a Texas resident, in exchange for a $100,000 reward. The bill would also empower people to bring wrongful death lawsuits following an abortion, and give new powers to the Texas Attorney General to enforce the state’s abortion bans, including the 1925 ban.

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Creators: The Right to Bodily Autonomy

Matthew T. Mangino
Creators Syndicate
August 13, 2024

The art of movie making can be provocative, a glimpse of the past as a harbinger of the future. There is a scene in the classic film "Judgment at Nuremberg" where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a German judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a "feeble-minded" woman who was the daughter of a "feeble-minded" mother. The court opinion concluded, "Three generations of imbeciles are enough."

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. "Judgment at Nuremberg" was a fictional account of the war crime trials of German judges. However, Justice Holmes' opinion in Buck v. Bell — which upheld the sterilization of women in the state of Virginia — was indeed cited in Nuremberg.

Carrie Buck became pregnant at age 16. Her foster parents had her institutionalized as a "feeble-minded moral delinquent," despite her claims that she had been assaulted by their nephew.

After she gave birth, Buck was sent to the Virginia State Colony for Epileptics and Feeble Minded in Lynchburg. Buck's mother was already a resident there.

Virginia had a law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck's sterilization by a vote of 8 to 1. Holmes' 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

Here we are 97 years later and America is embroiled in the same debate. Do women deserve the right to make decisions over their own bodies and decide when and if they want to have children?

In Dobbs v. Jackson Women's Health Organization, the 2022 abortion decision, the U.S. Supreme Court held "that Roe [v. Wade] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

"The Dobbs case and the Buck case can both be boiled down to an issue about bodily autonomy," wrote Livia LaMarca, a student at the University of Pittsburgh, in 2022.

In Buck, the court acquiesced to the involuntary sterilization of women, and in Dobbs the court rescinded a woman's right to make her own reproductive choices. The decisions are about control. In both cases, according to LaMarca, the Supreme Court decided "that the right to one's own body isn't important enough to protect and that it isn't protected by the constitution."

According to USA Today, Buck was the first victim of Virginia's sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

The government — at different levels — continues to take away the right of women to make reproductive decisions. In 2015, a 36-year-old Tennessee woman had been charged with neglect after the death of her 5-day-old baby. The prosecutor would not move forward with a plea bargain to keep her out of prison unless she agreed to undergo a sterilization procedure. According to The Tennessean, the case ignited outrage over the proposed use of sterilizations as a bargaining chip in a criminal prosecution.

Seven years later, that very state enacted a total ban on abortion. The Tennessee law, with few exceptions, went into effect on Aug. 25, 2022. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in their dissent in Dobbs, "The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom."

The Buck court, in much the same way, thought forced sterilization did not implicate a woman's right to due process and equal protection — a decision ignominiously invoked by the Nazis in defense of crimes against humanity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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As PA Supreme Court installs a female Chief Justice, South Carolina court loses only woman

As Pennsylvania celebrates the elevation of Justice Debra Todd as the first chief justice in the state Supreme Court’s 300 year history, South Carolina’s only female Supreme Court Justice Kaye Hearn is retiring, reported NBC News. State legislators are preparing to elect her successor—a move that will most likely leave the court without a female justice for the first time in 35 years. 

The prospect troubles Hearn, who became the second woman to serve on South Carolina’s top court after she was elected in 2009. She is the justice who wrote the majority opinion this month that struck down the state’s six-week abortion ban. 

“I have always felt that it’s important for both lawyers and litigants to look up on the bench and see someone that looks like them,” Hearn said in a phone interview. “I do think it’s concerning.” 

Her departure in the coming months — mandated by South Carolina law now that she’s 72 — is occurring at a time when state supreme courts across the country are playing pivotal roles in the fate of abortion rights. When the U.S. Supreme Court overturned Roe v. Wade, dismantling the constitutional right to an abortion, regulation of the procedure was sent back to the states. In the past year, justices in Mississippi and Georgia have been among those who have been asked to weigh whether laws widely banning or restricting abortion in their states should stand.

Hearn declined to comment on the 3-2 decision in South Carolina, which determined that the state’s six-week abortion ban was unconstitutional because it violated the right to privacy.

Legislators will vote on Hearn’s replacement on Feb. 1. Two women, Court of Appeals Judges Stephanie McDonald and Aphrodite Konduros, were initially in the running for Hearn’s seat but withdrew Tuesday. Their departures left state appeals Judge Gary Hill as the only candidate remaining.

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Indiana doctor who provide abortion to 10-year-old rape victim sues attorney general

Dr. Caitlin Bernard, the Indianapolis obstetrician-gynecologist who provided an abortion to a 10-year-old rape victim from Ohio, is suing Indiana Attorney General Todd Rokita, alleging he has relied on "baseless" consumer complaints to launch "overbroad" investigations into physicians who provide abortion care, and issued subpoenas seeking the confidential medical records of their patients, reported CBS News.

The lawsuit, filed by lawyer Kathleen DeLaney on behalf of Bernard and her medical partner Dr. Amy Caldwell in Indiana Commercial Court in Marion County, claims Rokita opened investigations into seven consumer complaints filed against Bernard after she came under scrutiny for performing the medication-induced abortion on June 30, days after the Supreme Court reversed Roe v. Wade.

Bernard was thrust into the national spotlight after she told the Indianapolis Star that a child abuse doctor in Ohio had called her about the pregnant 10-year-old, who was seeking an abortion out of state due to Ohio's near-total abortion ban. A man was arrested and charged with rape two weeks later. Ohio's abortion law, which bans the procedure once an embryonic heartbeat is detected, typically around six weeks of pregnancy, took effect after the Supreme Court issued its decision overturning Roe.

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TCR: The High Court’s ‘Self-Inflicted Wounds’: A Backward Look

Matthew T. Mangino
The Crime Report
July 13, 2022

Was the Supreme Court decision last month overruling Roe v. Wade one of the worst decisions in the 233-year history of the Court?

 The ruling in Dobbs v Jackson Women’s Health Organization has been described as such by many judicial commentators and experts in the middle of the spectrum, and a large segment of the U.S. public seems to feel the same way.

 As this year’s session drew to a close,. the Court’s approval rating was at 25 percent and falling, according to a poll last month.

It may be small comfort. But Dobbs does have stiff competition for the “worst-ever” title.

Let’s start with Dred Scott v. Sanford, a ruling handed down in 1857. Chief Justice Charles Evan Hughes, who served on the court from 1930 to 1941, called Dred Scott the Court’s great “self-inflicted wound.”

The decision has been described by many scholars as the most egregious example in the history of the Court of applying a judicial solution to achieve a desired political result. Sound familiar?

Dred Scott was a slave, whose owner took him to Illinois where slavery was illegal.  The owner later took Scott back to Missouri, a slave state.  Scott sued for his freedom, arguing once he was brought to a free state he was no longer a slave.

His case ended up before the Supreme Court, which issued a 7–2 decision against Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

The Court held that black men and women, free or slaves, were not American citizens. There is no question today that the Supreme Court got it wrong.

Yet, that is the same Constitution that Justice Samuel Alito said did not provide for abortion and the same constitution that contains the Second Amendment which Justice Clarence Thomas recently said prevents New York state from regulating the carrying of a concealed gun.

Forty-two years later, in another embarrassing moment for the High Court, a seven-justice majority  ruled, in Plessy v. Ferguson, that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as ”separate but equal.”

In 1892, Homer Plessy, a mixed-race resident of New Orleans, violated Louisiana’s Separate Car Act of 1890, which required “equal, but separate” railroad accommodations for white and non-white passengers.

Plessy was charged with boarding a “whites-only” car. The Louisiana Supreme Court refused to throw out the charge against Plessy, his  case ended up before the U.S. Supreme Court.

In its 1896 decision, the Court decided 7-1 that the Louisiana law did not violate the Fourteenth Amendment. Noting that although the Fourteenth Amendment established the legal equality of whites and blacks,  it did not and could not require the elimination of all “distinctions based upon color.”

It took more than half a century to puncture a gaping hole in that decision.

In 1954, the Court ruled in Brown vs Board of Education that the “separate but equal” doctrine is unconstitutional in the context of public schools and educational facilities. Although the Court did not specifically overrule Plessy, it relegated the Court’s reasoning to the trash heap of jurisprudence.

But Plessy was not the only example of the Court’s racism.

In the aftermath of Japan’s attack on Pearl Harbor, the military was charged with coordinating the defense of the West Coast, and ordered “all persons of Japanese ancestry” to relocate to internment camps.

Fred Korematsu, a young Japanese-American refused to comply and challenged the order on the grounds that it violated the Fifth Amendment. In Korematsu v. United States, Justice Hugo Black, writing for a 6-3 majority in 1944, held that the need to protect against espionage by Japan outweighed the rights of Japanese-Americans.

Black wrote that “Korematsu was not excluded from the Military Area because of hostility to him or his race,” but rather “because the properly constituted military authorities … decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast” during the war against Japan.

The decision has been criticized as “an odious and discredited artifact of popular bigotry”  It was effectively overturned in 1983.

But even in a more “enlightened age,” the Court’s rulings raised questions.

In 1989, the U.S. Supreme Court decided in Stanford v. Kentucky that juveniles—16- and 17-year-olds—could be executed if convicted of first-degree murder. The decision was so out of step with the idea of dignity and decency, that it was overturned 15 years later.

In overturning Stanford, the Court cited evolving standards of decency as evidenced by a national consensus against executing juveniles.  The court determined a national consensus existed by the number of state legislatures that had outlawed juvenile executions.

A CNN poll conducted in May immediately after the leaked Roe v. Wade draft opinion, found that 66 percent of Americans said they did not want the Supreme Court to completely overturn Roe v. Wade.

 So much for the influence of a national consensus.

And it could get worse. Next year will tell us if the hard-right turn continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA. He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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Dobbs overrules Roe v. Wade how did we get here?

Roe v. Wade is overruled. The Republican Party, which achieved a generational victory when it captured a supermajority of the Supreme Court’s seats under former President Donald Trump, has now capitalized on that victory to achieve one of its longtime political goals. The half-century when American constitutional law protected a right to an abortion is now over, wrote Ian Millhiser at Vox.

Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization is substantially similar to a leaked early draft of that opinion, which was published by Politico in early May. Alito’s opinion was joined by the Court’s four most conservative members. Chief Justice John Roberts, a conservative who often takes a more incrementalist approach than Alito, wrote a separate opinion arguing that the Court should limit but not yet overrule Roe.

Alito’s final opinion doesn’t just allow Mississippi to enact the 15-week abortion ban at issue in Dobbs — a ban that violated Planned Parenthood v. Casey, a 1992 opinion that weakened Roe while retaining the constitutional right to an abortion up to the point of “viability.” Alito’s opinion goes further, and concludes that Roe and Casey “must be overruled.” It is written in Alito’s characteristically snide tone, repeatedly referring to abortion providers by the pejorative term “abortionists.” And it rests on a conservative theory that limits which rights are protected by the Constitution.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito writes.

According to Alito, if a right isn’t explicitly mentioned in the Constitution, it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” to qualify for constitutional protection. He then spends many pages of his opinion arguing that the right to an abortion is not rooted in legal history or tradition.

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Mangino's full Roe v. Wade interview on WFMJ-TV Podcast

 Listen to my full interview with Derek Steyer on the Supreme Court's decision overturning Roe v. Wade on WFMJ-TV's podcast.

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Mangino discusses Roe v. Wade decision on WFMJ-TV21

Watch my interview with Derek Steyer on WFMJ-TV21 News regarding the Supreme Court's ruling overturning Roe v. Wade.

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The Capital-Star: There’s a path for John Roberts to save Roe. He should take it | Opinion

Matthew T. Mangino
Pennsylvania Capital-Star
May 10, 2022

In 1972, not long after the decision in Roe v. Wade, the U.S. Supreme Court was asked to determine whether the death penalty violated the Eighth Amendment ban against cruel and unusual punishment.  

The death penalty had been around for more than three centuries in North America by the time the court was asked to review it.  However, there hadn’t been an execution in the United States for five years preceding 1972.  

Not unlike the case currently before the high court regarding abortion, its decision in 1972 known as Furman v. Georgia was controversial.  

The startling leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health has revealed massive fissures between the justices. Chief Justice John Roberts has worked assiduously at protecting the integrity of the court.

The leaked opinion does not appear to include Roberts with the majority, at least at this point, of Justices Alito, Clarence Thomas, Brett Kavanagh, Neil Gorsuch and Amy Barret.  

Supreme Court custom provides that the senior member of the majority in a case pending before the court would appoint a member of the majority to write the opinion.  In Dobbs, it would appear that Thomas assigned the duty to author the majority opinion to Alito.

If Roberts is opposed to overruling Roe v. Wade, can he learn anything from studying Chief Justice Warren Burger’s actions in the Furman decision?   

Evan J. Mandery’s book, “A Wild Justice,” examines just how close the Supreme Court came to abolishing the death penalty in 1972.  

As Mandery tells it, when Furman  reached the court three justices opposed the death penalty — William O. Douglas, William J. Brennan, Jr. and Thurgood Marshall.  Two additional justices — Potter Stewart and Byron White — were leaning toward abolishing the death penalty.  

After Furman was argued the court met in conference.  A poll was taken among the justices. Marshall, Douglas and Brennan voted as anticipated. White and Stewart agreed to vote with the three liberal justices to abolish the death penalty.  

According to Mandery, there was a five vote majority to abolish the death penalty.  Justice Brennan would be charged with assigning the responsibility to write the majority opinion.  

At that point Burger, who was opposed to abolishing the death penalty, did something brilliant to gain control of the process. He switched his vote to the majority.  As the chief justice, and now a member of the majority, he could pick the author of the majority opinion.  

As Mandery pointed out, Burger took the unprecedented position, that all nine justices should write their own opinion because “no coherent rationale had emerged” during the course of the conference. Under Burger’s strategy the coalition to abolish the death penalty collapsed.  

Justices White and Stewart made a side deal to find, not that the death penalty should be abolished as a cruel and unjust punishment, but rather that it was merely broken.  

As a result, a number of states amended their death penalty statutes, and the death penalty was back within four years and, as we all know, is still around today.  

Could, or can, Roberts use Burger’s strategy to re-direct the decision in Dobbs?  

Roberts could switch his vote to the majority and as chief justice he could select himself or someone other than Alito to write the majority opinion. Instead of overturning Roe, he could forge some compromise that doesn’t directly overrule nearly fifty years of precedent.

Maybe Roberts can forge a compromise that puts in place some additional restrictions such as those proposed in Mississippi — no abortions after 15 weeks. He has, in the past, signaled his support for such a compromise.

Although the five conservative justices indicated that they agree with overturning Roe v. Wade, they may not have agreed to join in Alito’s opinion. This leaves open the opportunity for deal making. Roberts has always been protective of the court’s reputation. This is his opportunity to save the court from the tarnish of partisanship.  

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former elected district attorney of Lawrence County, Pennsylvania.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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Cole: The Alito opinion would be like Plessy overturning Brown v. Board of Education

David Cole, national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, wrote in the Washington Post.

In his leaked draft opinion for the Supreme Court overturning Roe v. Wade, Justice Samuel A. Alito Jr. points to Brown v. Board of Education, one of the Court’s most celebrated decisions, as support for his reasoning. Brown, after all, overturned Plessy v. Ferguson’s “separate but equal” doctrine, and marked the beginning of the end of the Jim Crow era.

But the difference between Brown and what the court appears poised to do in Dobbs v. Jackson Women’s Health Organization could not be more basic. In Brown, the court extended fundamental rights, as it has done in virtually all its decisions overturning constitutional precedents. A decision overturning Roe, by contrast, would eliminate the constitutional right to abortion altogether. The proper analogy is not Brown overruling Plessy, but a decision reviving Plessy, reversing Brown, and relegating Black people to enforced segregation after nearly 70 years of equal protection.

The doctrine of stare decisis acknowledges the importance of respecting settled expectations — and especially of not taking away rights that people have come to rely on. It holds that, absent extraordinary circumstances, the court must abide by its prior decisions, even and especially when the court’s roster changes. It’s what ensures that constitutional law is a rule of law, not a rule of nine individual jurists.

Of course, rights change over time, and modifications are inevitable as the court applies settled rules to new circumstances. Rights often expand or contract at the edges of constitutional law.

But outright reversals of precedent are few and far between, and reversals that deprive people entirely of constitutional rights are rarer still. Alito cites about 30 decisions in which the court overturned prior precedents, but fails to note that virtually every one involved expanding rights.

Just imagine, for example, if the court were to overrule Loving v. Virginia and announce that interracial couples no longer have a right to marry, or reverse Gideon v. Wainwright and deprive indigent criminal defendants of a lawyer. Yet, as Solicitor General Elizabeth B. Prelogar told the Supreme Court when it heard oral arguments in Dobbs, reversing Roe “would be telling the women of America that … the ability to control their bodies and perhaps the most important decision they can make about whether to bring a child into this world is not part of their protected liberty.”

Americans today enjoy rights to speech, to vote, to choose who they live with and marry, to exercise religion, to hold property, to privacy, and to equal protection that are far more generous than those recognized at the framing of the Constitution. While the court has whittled away at some of these rights, none of those prior decisions comes close to the tectonic shift that reversing Roe v. Wade would cause.

Alito cites West Coast Hotel v. Parrish, a 1937 decision that reversed course on a line of decisions ruling that business owners’ “liberty of contract” invalidated federal and state laws protecting workers and consumers. Parrish took away some rights of business owners, but its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.

Overturning Roe would strip from every American woman one of the most important rights she enjoys — controlling how and when she has a child. It is a right that 1 in 4 American women has exercised by obtaining an abortion, and that virtually all women have relied on to plan their lives, families and careers. It would also depart radically from U.S. public opinion; poll after poll shows that Americans overwhelmingly oppose overruling Roe.

If the court follows through on its apparent intent, pending antiabortion laws in many states will take immediate effect and the consequences will be dire. People throughout the country will be hurt, none more so than those who already face challenges in accessing abortion because of low income, geographical isolation or difficult family situations. To compare that result with Brown v. Board of Education is an insult to Americans’ intelligence.

What is to be done? History teaches that the American people, not nine justices, ultimately determine our collective constitutional fate. If all those who care about this fundamental right stand up, organize, and vote, we can and will win back the right that the court stands poised to revoke. Civil rights activists did not take Plessy sitting down; nor should anyone treat Dobbs as the last word.

If the court overturns Roe, it should expect that the fallout, like the decision, will be unprecedented.

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