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Progressives Look to Pardon Power as Abortion Access Fix

July 12, 2022, 8:45 AM

Welcome back to another edition of Opening Argument, a reported column where I dig into complicated novel questions of law and unpack disputes that are dividing appeals courts. Today: A look at pardon power and its use in the fight over abortion.

Wisconsin Gov. Tony Evers (D) has found a way to side-step a 19th century abortion ban that kicked in after the US Supreme Court overturned Roe v. Wade and the state’s Republican-controlled legislature refused to repeal it.

The law, which passed 16 years before the Civil War started and 71 years before women were allowed to vote, says anyone who intentionally destroys the life of an unborn child other than the mother may face felony charges and up to six years in prison or a maximum $10,000 fine. But Evers has pledged to absolve any doctor caught violating it.

“Did you ever think about the word clemency? I will provide clemency to any physician who is charged under that law,” he said, eliciting cheers from the crowd while speaking at the Wisconsin Democratic Convention late last month.

Most governors have the power to grant criminal defendants this kind of relief by either reducing their prison sentence or eliminating their state court conviction altogether with a pardon.

Governors are typically pretty stingy when it comes to doling out clemency, traditionally reserving it for people who have already served a significant chunk of an unfair or overly aggressive sentence. Using it to fight a state law they disagree with like an abortion ban is new.

“It’s not only unusual but unusual for this particular governor,” said Mark Osler, a University of St. Thomas School of Law professor and expert in sentencing and clemency. He said Evers has been pretty cautious about using his clemency powers. Evers’ office didn’t respond to a request for comment.

While it’s a tool Democratic governors in states with divided governments have at their disposal to cripple abortion bans, legal scholars say it’s unlikely to keep the procedure accessible in a state that has the political will to criminalize it.

Rachel Barkow, a New York University School of Law professor, said it’s little assurance to people facing arrest, prosecution, and conviction, that, at some point, a governor is going to come in and offer relief.

“The chilling effect of these laws is probably going to overshadow any kind of pledge by a governor that says ‘Look I’ll help you out if this comes to pass,’” she said.

What’s more, the possibility of a pardon could disappear entirely depending on who’s elected next. Wisconsin Right to Life, an anti-abortion group, has already said it’s working to replace both Evers and the state attorney general.

“We hope that’s a driving factor in our fall election,” said Gracie Skogman, the group’s legislative and political action committee (PAC) director.

Presidents also have pardon powers but only for federal, not state crimes. As another workaround to state prohibitions, lawmakers like Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Elizabeth Warren (D-Mass.) have proposed hosting abortion providers on federal land.

Though abortion would be lawful in these federal enclaves, the statute of limitations could still put doctors at risk of being prosecuted years later under a new president that’s hostile to abortion.

President Joe Biden could, however, issue a blanket pardon to absolve doctors who provide an abortion on federal land during his administration from any criminal charges, said Rachel Rebouché, interim dean at Temple University School of Law, who wrote a piece for the Boston Globe with two other legal scholars advocating for abortion clinics on federal land. She acknowledged though that that pardon wouldn’t extend to doctors who keep performing abortions on federal land under a new administration.

Moving clinics comes with a litany of logistical and legal complications.

It’s not clear whether states could pass laws to prosecute people who help someone get an abortion on federal land or if state medical boards could discipline doctors who perform the procedure in the federal safe havens.

Another question is whether the federal government could set up a system like this without violating the Hyde Amendment, which prohibits the federal government from providing money for abortion services.

It’s these kinds of conflicts between states, within states, between prosecutors and cities, cities and states, and federal and state governments that Rebouché said we should expect to see as lawmakers work to find novel ways to protect abortion.

“It’s not a bug, it’s a feature of abortion law now,” she said.

If you know of a case or interesting legal dispute that’s worth writing about, email me at lwheeler@bloombergindustry.com. And if you want to read more Opening Argument, sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and you’ll catch this column every time it runs.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com