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A death penalty lawyer grappling with the end of Roe

When unwanted children are inevitably swept into the school-to-prison pipeline, it is often the conservative, pro-life camp that leads the charge to “lock them up and throw away the key”.

Abortion rights activists take part in a Ban Our Bodies rally and march past the Supreme Court on May 14, 2022. (Kent Nishimura/Los Angeles Times via Getty Images)

In my 16 years as a death penalty lawyer, I have had plenty of time to contemplate the plight of unwanted children. As adults, some of these children were my clients on death row. Turns out the company didn’t want it either. When their lives fell apart, as sometimes happens to unwanted children, they hurt people, usually after enduring years of pain and trauma themselves. When they turned their pain outward, taking the life of another, society concluded they were not worth saving.

This month of April marked the sixth anniversary of the execution of one of my clients. Every spring, I am gripped by flashbacks of the days, hours, and minutes leading up to his execution. Plagued by the idea that his loved ones, who knew him far more than the worst thing he ever did, are still mourning their loss. Haunted by questions about whether there was anything else I could have done that was different, better, that would have saved him. This year, the grief I carry has come with a new sense of dread.

Roe v. Wade helped lift women and families out of poverty. And it has helped to ensure that more children born in the past five decades are wanted children.

With the recent leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Centerthe reversal of Roe vs. Wade seems imminent. In Dobbs, the Court will decide whether Mississippi’s new law banning most abortions after 15 weeks is constitutional. Spoiler alert: it’s not, under Deer, and the following case, Family planning c. Casey, Unless a constitutionally permitted restriction applies, women can terminate a pregnancy until viability, determined to occur around 24 to 26 weeks.

Roe vs. Wade has protected the right to terminate unwanted pregnancies for almost 50 years. The protection of women’s bodily autonomy is, in itself, of crucial importance. But deer means so much more. He helped lift women and families out of poverty. And it has helped to ensure that more children born in the past five decades are sought children.

Perhaps you think that these things, abortion and the death penalty, have nothing to do with each other. But the issues are connected in ways you may not realize. And that’s partly why the prospect of the Supreme Court’s decision in Dobbs is deeply disturbing.

The lay of the land

In 1860, when Mississippi was the leading cotton producer in the United States, more than half of the state’s population was made up of slaves. Indeed, as the Civil War approached, Mississippi was one of the largest slave states in the country. Of course, Mississippi is not alone in this shameful chapter in American history.

During slavery, the value of black women was inextricably linked to their ability to reproduce. The offspring of enslaved women throughout the South were, by law, considered the property of slavers who had a vested interest in “producing” more slave labor to fill their coffers.

To spare later generations the all-too-familiar brutality, some enslaved women used homeopathic techniques to induce miscarriages. These acts of resistance stem from women’s fundamental recognition that forced motherhood was harmful to them and to the children they were forced to bear.

In the decades following the Civil War and Reconstruction, control over women’s bodies took on a new form. Beginning around the early 1900s and continuing well into the 1980s, countless forced sterilizations took place across the United States, including many former Union states. These procedures took place without the women’s consent and, in some cases, without their knowledge. In Mississippi, the practice was so common that it earned the nickname “Mississippi appendectomy.”

The current campaign to control women’s bodies comes in the form of the imminent threat posed by the upcoming decision in Dobbs. Thereafter, access to abortion will be determined state by state, no longer benefiting from any federal protection. And with trigger laws taking effect in 13 states, not only will abortion become inaccessible in some states, but it will also be criminalized. In an Orwellian twist, if a Texas legislator gets his way, abortion will carry the death penalty.

From birth to life and death

What happens to girls and women who are forced to have unwanted pregnancies is conspicuously absent from the talking points promulgated by opponents of abortion. And further, what happens to these children? The unaborted.

I can tell you what happens to some. Most of my clients were born in the years before Roe vs. Wade. As such, safe and legal abortion was never an option for the women who became their mothers. Many of my clients were the result of unplanned pregnancies. Some were the result of rape and/or incest. Some were conceived in abusive relationships. And almost all of them were born into a culture of great poverty.

Although being the product of an unplanned and unwanted pregnancy is not, in itself, decisive as to the outcome of one’s life, it can be a precipitating factor for bad things to come. When these children receive other supports, the negative effects of being unwanted can be offset. I have witnessed this phenomenon in the lives of some siblings of my clients. Those who escaped a worse fate and, for one reason or another, got a life raft. Sometimes it was a coach identifying raw talent. Sometimes a professor who was interested in it. Sometimes a family member or a neighbor who welcomed a brother or a sister. During this time, my clients were sidelined, forgotten or sacrificed.

In an Orwellian twist, if a Texas legislator gets his way, abortion will carry the death penalty.

In the absence of additional supports, the trajectories of unwanted children should concern us all, regardless of religious or political affiliation. Which brings me back to my client. And the death penalty.

My client was from Mississippi. He was born in the late 60s, before deer was the law. And he was unwanted. That doesn’t mean his mother didn’t love him. She did it, in her own way.

I’m also not saying that I think he shouldn’t have been born. The myriad of factors that contribute to poor outcomes are varied and complex. The intention here is not to assess all of these contributing factors, but to focus on just one of these factors. Does being undesirable “drive” people to become criminals? No. Such a conclusion would be both erroneous and oversimplified.

But people navigate life with the tools at their disposal. Some of us have been given many more tools than others: a good education, good nutrition, security, stable and loving homes. Some of us don’t get any of these things. When the only tool in your toolbox is a hammer, everything is bound to look like a nail.

When my client’s teenage mother became pregnant, she didn’t want to have a baby. But in 1960s Mississippi, his options were few. She tried a home remedy to terminate the pregnancy on the advice of a family friend who told her to drink turpentine. It didn’t work out – a harbinger of things to come in his life. And, by extension, my client’s life.

In my experience, many people who rebel against deer are the same people who regularly vote against funding social welfare programs that support struggling families. Subsequently, these same people seem quick to condemn children who, lacking adequate support and resources, stumble into trouble. And, when trouble piles up for these kids, taking them down the school-to-jail pipeline, it’s often the conservative, pro-life camp that leads the charge to “lock them up and throw away the key.”

By the time some of these children became my clients on death row, it was, once again, pro-life and pro-death penalty people calling for their execution.

A world without deer

When deer is reversed, there will be many more unwanted children. As a witness to the pain inflicted and, later, by—a few unwanted children, my heart aches for the families and communities who will bear the cost.

I implore the opponents of abortion to think about the post-deer unwanted children. To law on behalf of these children. To earn their “pro-life” title, by supporting community organizations that provide essential support to underserved young people. By committing to gender equality and racial justice. By voting for local actions that promote and fund maternal health programs and youth services. By advocating for more school counselors and strong training for teachers to ensure they can identify and support students who may be floundering. By learning about the impact of trauma on children’s behavior and demanding that issues be addressed through a trauma-informed lens. By promoting restorative justice practices when young people engage in harmful behaviors.

Instead of all these steps, however, if abortion opponents continue, as many have done, to cease all interest in unwanted children after they are born, I hope they will recognize their role in the myriad consequences as they begin to unfold. Whether they do so or not, when the opinion of the Supreme Court in Dobbs drops, we will all face these consequences soon enough.

Sign and share Mrs. relaunched the “We had abortions” petition– whether you have had an abortion yourself or simply stand in solidarity with those who have – to let the Supreme Court, Congress and the White House know: we will not abandon the right to a safe abortion, legal and accessible.