Can Police Officers Refuse to Enforce Abortion Laws?

Protest following Roe v Wade decision. Photo via Guardian

Despite the June 24 ruling by the United States Supreme Court, which officially reversed Roe v. Wade, in the eyes of many Americans, abortion remains a flexible issue.

According to the Brookings Institution, “between 25 percent and 35 percent of Americans think that abortion should always be legal, 10 percent to 15 percent think it should never be legal, and the remaining 50 percent to 65 percent are split between those who think that it should be mostly legal with some exceptions and mostly illegal but with exceptions.”

While there is room for debate about the “timing” of when an abortion can be done or performed and individual circumstances (e.g., rape, incest), in general, this decision has upset many Americans. Rightfully so.

It was completely at odds with what the Constitution and the ideals of the United States of America uphold.

The debate is only just beginning, but there is one area that has still received relatively little attention: how should law enforcement respond to the new abortion landscape?

Already in the U.S. we have seen women charged with some form of murder or manslaughter as a result of ending their pregnancies.

In Texas, a 26-year-old southern Texas woman was indicted in March following an alleged “self-induced abortion.”  After she allegedly told staff at a Starr County hospital that she had tried to induce her own abortion, she was reported to the police.

These charges were later dropped after intense media and public outcry.

In Louisiana, a House Committee “voted … to make abortion a crime of homicide for which a woman ending her pregnancy could be charged, along with anyone helping her … [while also declaring] that any federal law, regulation or court ruling that allows abortion is void and that any judge who blocks enforcement of the bill’s provisions could be impeached”.

In these very real events, in which women who have abortions performed either by a medical professional or in their own home, law enforcement would be required to investigate the situation (given it, under many state laws, would now be considered a crime).

In many cases, again dependent upon the state, police are already actively doing so and are using text messages and web searches to help prosecute women while companies that track women’s periods are selling data to private industries and groups.

Is It Moral to Say No?

However, here is the key question: Is it moral for a police officer to refuse to enforce such a law?  Can an officer legally, not follow an order from her superior?

In terms of case law, unsurprisingly, there is very little information on when an officer can and cannot enforce a law.

Many legal cases exist documenting public servants (namely police officers) and when they can and cannot disobey a superior or an administrative (e.g., if an officer’s constitutional rights are threatened), but not when they are allowed to refuse to enforce an order on legal or ethical grounds.

This makes some sense: policing has, historically, always been intended to uphold the status quo of society.

This desire to maintain the status quo of the United States is a common explanation as to why law enforcement in the U.S. (and around the world) often seem and in many cases do follow any legal order given.

R.C. Nagpal, an Indian legal scholar, provided three of the most common arguments in a 1979 issue of the Journal of the Indian Law Institute:

If a government servant were not bound to obey all orders – lawful or otherwise – of his superiors, it would generate indiscipline in the services … If a government servant defy the superior order he would be liable to punishment …

 How can a government servant know that a particular order is lawful or not?” As he cannot know the lawfulness or otherwise of the superior order, he is concerned only with carrying that out.

Few officers would be willing to risk their own livelihood over principle. However, there comes a point when, if an officer feels strongly that abortion is wrong, they must follow their conscience and act in accordance with their own values and sense of morality.

Abortion and Complicity 

Looking at the issue of abortion specifically, it is well-documented that, by removing abortion from society, society itself will be harmed.

From an economic perspective, it has been shown time and again that “abortion access does, in fact, profoundly affect women’s lives by determining whether, when, and under what circumstances they become mothers, outcomes which then reverberate through their lives, affecting marriage patterns, educational attainment, labor force participation, and earnings.”

Many economists agree that removing abortion would be a financial negative to U.S. society.

Alongside this, some have argued that one reason for the decrease in U.S. crime over the past 40 years has been the legalization of abortion which “led to a reduction in crime 18 years later, starting in 1992 and dropping sharply in 1995” citing case studies in states like California, Alaska, Hawaii, Oregon, and Washington.

Some “studies in Canada and Australia claim to have established a correlation between legalized abortion and overall crime reduction.”

From a scientific perspective, the University of California-San Francisco has undertaken an academic study in the form of the Turnaway Study which “looked at about 1,000 women who were seeking abortions, and followed them for five years.”

They concluded: “Women who had abortions reported fewer mental health issues, even years later, and their most common reaction was relief. Women denied abortions often experienced brief declines in mental health and higher anxiety.

Women denied abortions were more likely to end up poor, unemployed or receiving government assistance, even though before they asked for an abortion they were in a similar financial place as women who were able to get one”.

Increasingly, scientifically valid and credible evidence points to the removal of abortion in American society as having a detrimental effect upon, namely women, but all of those within the United States.

Women more often who have an abortion will suffer from mental health issues, be unable to join the workforce or continue their education, more often than not become financially destitute, debt ridden, or live off government subsidies. The children born, on the other hand, more often than not will live and grow up in a lower socioeconomic bracket, be more heavily exposed to drugs and crime, and quite possibly contribute to a boom in criminal activity.

Given that most states are codifying an abortion ban with no concern for cases of rape or incest, as well as denying those under the age of eighteen to receive an abortion, many women will have to birth children even if it is a risk to their own health or the child will have a number of defects.

In terms of enforcing an abortion law in a state or following a directive laid out by a law enforcement official, say to remove a woman from an abortion clinic or arrest a doctor for providing abortions, it is clear from the discussion above that such an order would contribute to a degradation of society.

By banning abortion, the woman’s prospective life (a chance at a college or graduate level education, the chance at a societally beneficial career, the chance to give back in a meaningful way to the country and community) and the child’s prospective life (the ability to become a productive member of society or live the quality of life many Americans desire) would become a fantasy for many, largely minority, persons.

Career Suicide?

And the police, who would carry out the orders of their state legislatures and executive branches and the individual decrees of prosecutors, would be complicit in this endeavor.

An officer who adopted this policy of not enforcing a legally given order would likely be committing career suicide.

Nonetheless, it is clear that, by carrying out this legal order, the officer would be contributing to an increase in crime of potentially various kinds, including the damaging of other persons and property.

This conflicts with law enforcement’s ultimate and stated goal of maintaining public order/safety and preventing crime as defined by academia, the Department of Justice, and the American Bar Association.

The International Association of Chiefs of Police (IACP), in providing their code of ethics, writes,

As a law enforcement officer, my fundamental duty is to serve the community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation and the peaceful against violence or disorder; and to respect the constitutional rights of all to liberty, equality, and justice.

The decisions by the Supreme Court and individual state legislatures of many states have now laid the foundations for an identity crisis within American police forces.

Alan Cunningham

The  current laws conflict with law enforcement’s entire mission and goal; to protect and defend the citizenry and prevent crime.

Some police agencies and officials have said they would not enforce such laws and some state legislatures have passed ordinances barring the police from enforcing any abortion laws.

But these remain exceptions so far.

By enforcing the arrests of women who gained abortions, denying women the ability to gain abortions, or arresting doctors performing abortions, though they are engaging in nationally codified illegal activity, police will contribute to a society which will become more destitute and crime-ridden for many Americans.

Alan Cunningham is a graduate of Norwich University and the University of Texas at Austin. He is a financial analyst and independent journalist focusing on national security affairs and military policy. He can be reached on Twitter at @CadetCunningham