The prosecution as punishment: How the chilling effect of indictment undermines reproductive liberty

“ The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. ”

“ The action for a malicious prosecution, which technically only applies to cases of malicious prosecution of criminal complaints, lies as well where there is not, as where there is an arrest; and the grounds of the action are the malice of the defendant, want of probable cause, and injury to the plaintiff’s person by imprisonment, his reputation by scandal, or to his property by expense. ”

“ THE more immediately after the commission of a crime, a punishment is inflicted, the more just and useful it will be. It will be more just, because it spares the criminal the cruel and superfluous torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of his weakness; and because the privation of liberty, being a punishment, ought to be inflicted before condemnation, but for as short a time as possible. ”

“ Jackson Women's Health Organization, state abortion bans have had a devastating impact on women’s ability to access care, contributing to delays in care, worse health outcomes, and the need for more complex care. In states across the country, women have been turned away from emergency rooms, forced to travel hundreds of miles for the care they need, and left with complications that put their lives and health at risk. Over the past year, the White House has underscored the impact that these relentless attacks have had on patients and providers. ”

“ In the modern era, its decisions continue to have both immediate and long-term effects on the welfare of individuals and communities throughout the country, including by affecting the rights of people of the same sex to marry, the right to bear arms, religious liberty, property ownership, women’s reproductive rights and freedoms, access to health care, participation in the political process and voting, the structure of government and the separation of powers, the operation of the criminal justice system, diversity in higher education, and the regulation of workplaces and the right to organize. ”

“ Acts Forbidden by Statute.—Within the second subdivision of the definition, or acts declared unlawful by statute, fall the cases of committing or attempting to commit an abortion, and cases of prescribing for or treating a patient by one voluntarily intoxicated. If the abortion is attempted without the knowledge or consent of the woman, and under the pretence of performing a necessary operation upon her to cure disease, undoubtedly the physician would be liable to a criminal prosecution by the State for the offence of committing an abortion and to civil action by her to recover damages. ”

“ A PUNISHMENT, is an Evill inflicted by publique Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law; to the end that the will of men may thereby the better be disposed to obedience. ”

“ Punishment is the denial of wrong by the assertion of right, and the wrong exists in the self, or will, of the criminal; his self is a wrongful self, and is realized in his person and possessions; he has asserted in them his wrongful will, the incarnate denial of right ”

“ What troubles me and makes me indignant is that of all the mass of facts heaped up by the prosecution against the prisoner, there is not a single one certain and irrefutable. And yet the unhappy man is to be ruined by the accumulation of these facts. Yes, the accumulated effect is awful: the blood, the blood dripping from his fingers, the bloodstained shirt, the dark night resounding with the shout 'Parricide!' and the old man falling with a broken head. ”

“ If the action and evidence appear to justify a prosecution, a prosecution is to be set on foot on the secret information of a collector. If it will not justify it, then the only consequence is that the mind of government [553] has been poisoned against a citizen, neither known nor suspecting it, and perhaps too distant to bring forward his justification. ”

“ The insertion in the indictment of the words 'procured by fraud' does not change the offense charged. The embellishment of the indictment does not lengthen the time for prosecution. It is the statutory definition of the offense that determines whether or not the statute of limitations comes within the Suspension Act.
So it is with Count I. A charge of conspiracy to commit a certain substantive offense is not entitled to a longer statute of limitation than the charge of committing the offense itself. ”

“ Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment. “Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. ”

“ And so far this account is undoubtedly true, that we frequently have occasion to confirm our natural sense of the propriety and fitness of punishment, by reflecting how necessary it is for preserving the order of society. When the guilty is about to suffer that just retaliation, which the natural indignation of mankind tells them is due to his crimes; when the insolence of his injustice is broken and humbled by the terror of his approaching punishment; when he ceases to be an object of fear, with the generous and humane he begins to be an object of pity. ”

“ The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. ”

“ More than a decade ago, a Supreme Court decision literally wiped off the books of 50 States statutes protecting the rights of unborn children. Abortion on demand now takes the lives of up to one and a half million unborn children a year. Human life legislation ending this tragedy will some day pass the Congress, and you and I must never rest until it does. Unless and until it can be proven that the unborn child is not a living entity, then its right to life, liberty, and the pursuit of happiness must be protected. ”

“ I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [p. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. ”

“ A The Court begins by striking down statutory provisions designed to ensure that the woman's choice of an abortion is fully informed--that is, that she is aware not only of the reasons for having an abortion, but also of the risks associated with an abortion and the availability of assistance that might make the alternative of normal childbirth more attractive than it might otherwise appear. ”

“ Through the Task Force, Federal agencies are taking action to ensure access to emergency medical care, strengthen privacy protections for patients and providers, promote the safety and security of patients, providers, and clinics, and ensure access to health care free from discrimination. In addition to these efforts, President Biden and Vice President Harris continue to call on Congress to restore the protections of Roe v. Wade in federal law—the only way to fully secure access to reproductive health care for women in every state. ”

“ And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people - women as well as men. And it is a downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government - the ballot. ”

“ For any state to make sex a qualification that must ever result in the disfranchisement of one entire half of the people, is to pass a bill of attainder, or, an ex post facto law, and is therefore a violation of the supreme law of the land. ”

“ Now, gentlemen, the burden of the first issue is entirely upon the prosecution. The prisoner is still presumed to be innocent, and, unless clear and satisfactory evidence be produced to establish his guilt, it will be your duty to acquit him; but if, upon the evidence which I am instructed to lay before you, you should see no reason to disbelieve the witnesses, I cannot anticipate that any reasonable doubt can arise. The prisoner at the bar is, as you perceive, a young man, about eighteen or nineteen years of age, although you would hardly suppose that he was so old. ”

“ It therefore seems plain that the singleverdict procedure is a burden on the exercise of the right to be free of compulsion as respects self-incrimination. For he can testify on the issue of insanity or on other matters in extenuation of the crime charged only at the price of surrendering the protection of the Self-Incrimination Clause of the Fifth Amendment made applicable to the States by the Fourteenth.
On the question of insanity and punishment the accused should be under no restraints when it comes to putting before the court and the jury all the relevant facts. ”

“ Where, although in the ordinary state of things, the evil resulting from the punishment is not greater than the benefit which is likely to result from the force with which it operates, during the same space of time, towards the excluding the evil of the offenses, yet it may have been rendered so by the influence of some occasional circumstances. ”

“ Individual acts of evil, while involving those who are guilty of them in the punishment that is due, pass away and often ultimately lead to a restoration in grace, and to a strengthening of the fallen in the ways of holiness and peace; but it is otherwise when a “law” of wickedness becomes dominant, or when a principle of evil takes possession of the mind; it grows, it ripens, it brings forth fruit, and sows itself wider and wider, and in the end becomes a devastating torrent, whose course is marked by the destruction and the misery that it causes. ”

“ It may happen that punishment shall have been inflicted, where, according to the intention of the law itself, it ought not to have been inflicted: that is, where the sufferer is innocent of the offense. ”

“ That a party shall be deprived of the benefit of an acquittal by a jury, on a suggestion of this kind, coming, too, from the officer who drew the indictment, seems not to comport with that universal and humane principle of criminal law 'that no man shall be brought into danger more than once for the same offense.' It is very like permitting a party to take advantage of his own wrong. ”

“ The criminal, being susceptible to the idea of public good, and through it to the idea of rights, though this idea has not been strong enough to regulate his actions, sees in the punishment its natural expression. He sees that the punishment is his own act returning on himself, in the sense that it is the necessary outcome of his act in a society governed by the conception of rights, a conception which he appreciates and to which he does involuntary reverence. ”