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Criminal defense lawyers sound the alarm about mass incarceration in a post-Roe U.S.


If, as expected, Roe v. Wade is overturned by the Supreme Court, people who have abortions could end up facing criminal charges; so could doctors who perform abortions; so could Uber drivers who take passengers to appointments for abortions. So criminal defense attorneys all over the country are gearing up for a wave of these courtroom fights. We wanted to know how they're preparing for that. So with us is Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers. Lisa, thanks for coming on the program.

LISA WAYNE: Of course.

PFEIFFER: Lisa, your organization is very large. It has many members who certainly have different opinions about whether abortion is right or wrong. So you do not take a political stance on this. But what is the legal concern here from your organization's perspective?

WAYNE: Well, our legal concern is to make sure that we are sounding an alarm bell about the wave of expansive prosecutions that we are certain will follow any significant curtailment or reversal of Roe vs. Wade. So we know that existing state conspiracy laws, attempt aiding and abetting, accomplice liability, subjects a wide range of individuals beyond just women who are seeking abortions. We're talking about the doctors performing them, the friends, the parents, the boyfriends. All of those people will be exposed to criminal penalties, which opens up the floodgates to overcriminalization and mass incarceration.

PFEIFFER: How could that play out for regular people? Do you see, as you just said, families, friends, people actually facing fines or jail time for this?

WAYNE: Well, not only jails and fine, but we're talking about prison time. We're talking about minimum mandatory sentences, which means I'm caught up now in a conspiracy in the federal court or even in the state court where I'm complicit or I'm aiding or abetting someone who gets ultimately charged with manslaughter or murder, which is a life sentence. So we're not talking about just fines like a traffic ticket. We're talking about serious consequences in this country.

PFEIFFER: So you're anticipating an increased demand for lawyers. Are you then trying to get lawyers trained up or prepared so that there is more of a supply when they're needed?

WAYNE: Well, that's where NACDL is in a unique position to really be on the forefront of this. We train lawyers all over the country, and we've done that for 63 years. But now we are going to be training lawyers in the country to deal with how jurors, how the public will perceive my client who miscarries and is charged with murder. Because at the end of the day, if you have to go to trial, you want a fair jury and you want fair folks making decisions about very, very difficult cases.

PFEIFFER: Lawyers obviously cost money, even if it's a public defender being paid for by the government. What is your expectation of whether people who need lawyers will be able to pay for them or other ways to cover that expense?

WAYNE: Well, whenever you have laws that lead to rampant overcriminalization, you stretch your resources. So rich people will always be able to lawyer up. They will always have access to attorneys. They will always be able to have that advice that you should have at the front end. Poor people will be left behind. I don't get a lawyer if I'm poor until I'm actually charged with a crime in this country in most jurisdictions. So I have to wait to that moment until I get charged. If I have money, if I have access to counsel, I get advice on the front end of being able to perhaps avoid the consequences that I would face if I didn't have money.

PFEIFFER: That's Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers. Lisa, thank you.

WAYNE: Thank you. Transcript provided by NPR, Copyright NPR.

Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
Lauren Hodges is an associate producer for All Things Considered. She joined the show in 2018 after seven years in the NPR newsroom as a producer and editor. She doesn't mind that you used her pens, she just likes them a certain way and asks that you put them back the way you found them, thanks. Despite years working on interviews with notable politicians, public figures, and celebrities for NPR, Hodges completely lost her cool when she heard RuPaul's voice and was told to sit quietly in a corner during the rest of the interview. She promises to do better next time.