After the fall of Roe vs. Wade, are women at risk of criminal prosecution? The Supreme Court has reversed its previously held opinion of a constitutional right to abortion. Determining the legal status of abortion is now a matter of state law, and several states are likely to outlaw abortion under varying circumstances or even have previously passed &quot;trigger laws&quot; that become effective with little or no additional legislative procedure. Arkansas is one of those states. The bill SB6 contains the wording (c) This section does not: (1) Authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child; I understand that this prevents prosecution of women involved in an abortion of their own child. But my questions are: Would it in principle be legally possible to enact a law that allows or demands prosecuting women involved in an abortion of their own child? Are there in practice any laws to that effect proposed or pending?
A number of states, as well as the US Federal Government, have laws against &quot;fetal homicide&quot;, under which a woman might be prosecuted. The Alabama law, to take one example, defines homicide A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person and then defines &quot;person&quot; The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability. The abortion exception is stated thusly: Article 1 or Article 2 shall not apply to the death or injury to an unborn child alleged to be caused by medication or medical care or treatment provided to a pregnant woman when performed by a physician or other licensed health care provider but this exception, which codified a result of Roe v. Wade, could be repealed. There are various reported arrests, prosecutions and convictions of women reported here in cases where the woman did not obtain the abortion through approved medical channels. Generally, there are statutory provisions that preclude prosecution of women and physicians involved in a legal medical abortion, but you would have to carefully scrutinize the wording of those exceptions. If the exception is expressed unqualifiedly as an exception for abortion, then until the law is changed, a woman could not be prosecuting for obtaining an abortion. But if the exception is framed in terms of obtaining a legal abortion, then when abortions become illegal, prosecution of the woman becomes a possibility.
The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of &quot;potentially relevant&quot; to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with &quot;strict scrutiny&quot; for protection of Constitutional rights or else discernment of a &quot;rational interest&quot; in government taking a certain action. Either of these kinds of judicial review require a comparison of law to &quot;the facts&quot;. Hence &quot;the facts&quot; can be legally relevant.
The last part, about equal suffrage in the Senate, does not expire. The question is whether it can be itself amended out of existence. There has been no test of that possibility. This article argues that this may not be subject to amendment. There is only one way to find out for sure. The idea is that the original intent was that this is supposed to be an absolute clause, but of course that only speaks to original intention (and the original intention is not clear, as the article discusses).
The relevant statute, 28 USC 455 simply states what shall be, and does not suggest that the law could be enforced by any particular means. There have been cases where there was a suggestion of a hint of impropriety at SCOTUS and yet things proceeded. In Laird v. Tatum, 408 U.S. 1 Rehnquist did not recuse himself despite being a White House lawyer and having expressed an opinion on the legality of certain arrests, and that was the end of that matter.
The government has the choice They can prosecute the child for a crime in the adult system and the defendant then has the right to a jury, or they can refer the matter to the juvenile justice system (JJS) in which case any sentence is administrative and rehabilitative, not criminal and punitive. Some jurisdictions have removed certain classes of crime from the JJS and others allow the prosecutor or the JJS judge to refer the matter to the adult system. You may argue that this is a distinction without a difference, however, SCOTUS did not agree in McKeiver v. Pennsylvania (1971). The fifth amendment says &quot;No person shall ... be deprived of life, liberty, or property, without due process of law&quot; and SCOTUS was satisfied that the JJS provided that. They were also satisfied that because the prosecution was not criminal, the sixth amendment's right to a jury trial was not engaged. The JJS was established around the turn of the 20th century out of a belief that juveniles were more amenable to rehabilitation and that juvenile crime was a product of lack of parental supervision and societal influences whereas adults made a conscious choice to be criminals. In theory, the idea was to create a more sympathetic and less adversarial system to allow orders that were aimed to promote rehabilitation rather than punishment. Its success in that regard has been, at best, mixed. With the rise in crime in the US (but also worldwide) from the 1970s to 1990s, it became more politically beneficial to be &quot;tough on crime&quot; and more children were diverted from the JJS to the adult system - especially if they were people of colour. Even though crime rates have crashed since the turn of the 21st century, this is still many politicians' go-to response.
There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed &quot;fundamental&quot; are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is &quot;rationally related&quot; to a &quot;legitimate&quot; government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, &amp; Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of &quot;substantive Due Process&quot;, mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright.&quot; In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones.
canada criminal-law These acts could be sexual assault. Pregnancy is irrelevant to the analysis. Deviating from the sexual activity consented to A majority of the Supreme Court of Canada, in R. v. Kirkpatrick, 2022 SCC 33, in the context of a sexual assault charge, held that where birth control measures &quot;change the physical act itself, like condom use&quot; they are part of the &quot;sexual activity in question&quot; that is being consented to. Deviation from that activity is stepping outside of the consent. For the majority, birth control measures can very well change the physical act and can be a condition of a complainant's consent. In Kirkpatrick the issue was condom use, but the language the majority used was &quot;birth control measures.&quot; Whether birth control measures are in fact alter the physical act to which consent is granted in particular circumstances depends on the facts of the scenario. See para. 100. What matters is whether the method of birth control changes the physical nature of the act (not whether the purpose was to prevent pregnancy) and whether consent was conditioned on that. So methods like diaphragms, condoms (penile and vaginal variants), and other barrier methods are all probably relevant. Consent vitiated by fraud There is an alternate path to sexual assault: if the consent was vitiated by &quot;deceptions about the conditions or qualities of the physical act.&quot; See R. v. Hutchinson, 2014 SCC 19. Deceptions that deprive a person from the choice not to become pregnant, or exposing a person to an increased risk of becoming pregnant, or exposing a person to a significant risk of bodily harm such as a risk of contracting sexually transmitted diseases can all vitiate consent. This path to sexual assault is not as straightforward as the path described above from Kirkpatrick, as it requires a showing of dishonesty, which can include non‑disclosure of important facts, and a risk of serious bodily harm (R. v. Cuerrier, [1998] 2 S.C.R. 371). At least one court has said this reasoning does not apply when a person falsely represents that they are taking a birth control pill and then gets pregnant (PP v. DD, 2017 ONCA 180). This was in the context of a civil claim for sexual battery, but the court considered the reasoning from Cuerrier and found it was not analogous because the deceit had &quot;no physically injurious consequences&quot; for the plaintiff. The court recognized the consequences of a person having to support a child, but in the context of a wrong based on physical contact, what matters is physical damage. the appellant's alleged damage is principally emotional harm or, in other words, hurt feelings and lost aspirations and/or career opportunities flowing from the birth of his child. His situation, as a man, is quite different from that of the woman. Clearly, there are profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child. The appellant was not exposed to any serious transmissible disease or other significant risk of serious bodily harm flowing from the intercourse. Moreover, it is noteworthy that the appellant was willing to assume some risk, albeit small, that pregnancy would result from the several instances of sexual intercourse, a risk present even where the woman is taking contraceptive pills.
Does this practice contravene any state statute(s) or rule(s) of evidence? Generally not. States could adopt a statute that says otherwise, but I'm not aware of states that do. States often have regulations limiting police use of biometric data for general, non-probable cause based searches for criminal suspects. For example, many states don't make fingerprints obtained for professional licensing background checks available for searched by law enforcement without a warrant and probable cause. I suspect that states may start to do so with rape kit DNA, but it hasn't previously been identified as an issue, so there aren't statutes that prohibit this in most cases (e.g. victim's rights bills have not thought to address the issue). The reason for concern that could lead to future statutes is two fold. First, including rape kit DNA in searches discourages people from reporting crimes because it might put them at a disadvantage in an unrelated criminal proceeding. Second, the risk of false positives is vastly higher in a random search of biometric data from people with no articulated connection to the crime than it is when isolated individual suspects who there is probable cause to believe committed a crime are investigated. The chance of a false positive for someone in a database with millions of people is non-negligible even if the risk of a false positive in any one isolated comparison is tiny. Even a 1 in 10,000,000 chance of a false positive in a database of 40 million people will routinely produce false positives in random searches. And, while DNA evidence is very accurate, partial forensic DNA samples aren't absolutely incapable of producing false matches to nearly the same extent as a comparison of two complete whole genome samples. So, states may adopt such statutes in the future now that the issue is in the spotlight. contravene any federal statute(s) or rule(s) of evidence? No. violate any state constitutions or the US constitution? No. At least under current jurisprudence. The relevant provisions are vague legal standards that are applied with great discretion by courts. Evolving understandings of the situation could change that view in the future. Footnote: Does doctor-patient privilege or HIPPA control? There is a doctor-patient privilege recognized in every U.S. state and in the federal courts. Forensic DNA obtained from a rape kit from a potential suspect isn't protected by the privilege since the suspect isn't a patient of the medical provider in that medical procedure. There is an arguable case that the rape victim is a patient of the medical provider who gathers the DNA, including the rape victim's DNA for the rape kit, and that the patient has not waived the doctor-patient privilege merely by permitting the medical professional to use the rape victim's DNA profile to distinguish between sample material in the rape kit that is her own from material from a suspect. Moreover, such a waiver of doctor-patient privilege would probably not be legally valid unless the rape victim provided informed consent to that release. The rape victim might also have federal HIPPA protections for the privacy of her DNA profile collected as part of her medical records under a similar theory. Mostly, this hinges on how the relationship of the rape victim to the person administering the rape kit is characterized, and in particular, if gathering evidence in a rape kit is &quot;medical treatment&quot; that is privileged. To the best of my knowledge, there is no case law interpreting either the doctor-patient privilege or HIPPA in a rape kit DNA fact pattern. If it is considered to be a doctor-patient relationship for medical treatment within the meaning of the evidentiary privilege and HIPPA, and the DNA was shared on a database which law enforcement has access to without a warrant without the victim's informed consent, this evidence and all &quot;fruit of the poisonous tree&quot; derived from it, could probably be suppressed in a criminal proceeding against the rape victim, even if the evidence conclusively linked the rape victim to the crime. Under the circumstances, and given the policy considerations and the lack of other controlling law, this would be an attractive interpretation of the existing law for a court to adopt. If evidence completely independent of the blind database match provided probable cause that the rape victim committed a crime, and the crime was one in which there was forensic DNA evidence, law enforcement could probably get a search warrant to take a legally untainted DNA sample from the rape victim to compare to the forensically collected DNA evidence, however, just as it could with any other suspect.