Enforcement of Pro-Life Laws in a Post-Roe Landscape: Challenges and Solutions
Bioethics in Law & Culture Fall 2022 vol. 5 issue 4
Jennifer Popik, J.D.
Director of Federal Legislation
National Right to Life
After nearly 50 years of living under the Roe v. Wade decision, the pro-life movement celebrated the U.S. Supreme Court’s Dobbs v. Jackson decision. The Dobbs decision overruled the Roe and Casey v. Planned Parenthood cases and returned the abortion issue to elected representatives in Congress and the state legislatures.
In the majority opinion, written by Justice Samuel Alito, the Court noted:
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepen division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
In the months since the Dobbs decision was handed down, many states have begun protecting unborn children at various stages while others seek to expand abortion. Numerous protective state laws are currently being litigated as well, typically to see if they pass muster under the state’s, rather than the federal, constitution.
The Dobbs decision was released in late June, at a time when most state legislatures were out of session. A handful of states had previously enacted trigger laws that were intended to spring into effect if and when the Roe decision was overturned, and states like West Virginia, South Carolina, and Indiana came back into session to consider abortion legislation.
When nearly every state comes back into session this January, there will be various approaches to deal with the abortion issue. What has become clear is that even in states that successfully enact legislation to protect unborn children, there will be hurdles in enforcement. Evidence is mounting that the risk of facing criminal penalties may not be sufficient to enforce laws that protect unborn children.
Following the Court’s decision in Dobbs, National Right to Life released model legislation. In a legal memo which includes the model legislation, James Bopp, Jr., NRLC General Counsel wrote,
Traditionally, abortion laws relied on criminal enforcement to make pro-life laws effective in protecting unborn life. However, current realities require a much more robust enforcement regime than just reliance on criminal penalties. In the current environment, criminal penalties have three substantial drawbacks. First, radical Democrat prosecutors have been elected in several counties in almost every State, who regularly refuse to enforce laws that do not meet their social-justice agenda. These include a wide variety of laws, such as immigration laws, drug laws, sex-crime laws, minor criminal offenses and offenses against property. In addition, they will not enforce laws against favored groups such as (recently) Antifa and BLM members who have committed serious and violent acts such as arson and assault on police officers.
Abortion-rights advocates are conspiring on how abortion-on-demand can be protected in States that will adopt pro-life laws. A key part of that strategy is for radical Democrat prosecutors to refuse to enforce pro-life laws post-Roe. And the reality is that most abortion clinics have already moved to large urban centers and college towns where these radical Democrat prosecutors are likely to be elected. If we rely only on criminal penalties, these counties will be sanctuaries for abortion-on-demand. As a result, to effectively enforce pro-life laws, a wide variety of enforcement measures will need to be adopted to supplement criminal enforcement, including licensing penalties, civil remedies, and criminal enforcement by State officials. [Internal citations omitted]
Abortion proponents have announced a variety of ways they intend to try and circumvent the laws of states that limit abortion including tactics like: mailing abortion drugs into a state, which can run afoul of state law; setting up mobile clinics on a border of a life-protective state; offering to pay for travel expenses to another state to procure an abortion; and so on.
One particular serious hurdle, as noted by Bopp above, does not come from big companies or abortion activists, but from government prosecutors who have announced their unwillingness to prosecute illegal abortion providers.
In a 2022 “Joint Letter From Elected Prosecutors” (updated on July 25), nearly 100 prosecutors from across the country wrote,
We are a group of elected prosecutors representing communities across every region of the country. Over the past few years, we have watched with increasing concern as the constitutional right to abortion has been threatened and eroded. Now, the Supreme Court’s decision to end the federally protected constitutional right to abortion first established five decades ago in Roe v. Wade — a right that three generations of Americans have come of age relying upon — means that abortions will immediately or soon be banned, and potentially criminalized, in at least half of our nation’s states.
As elected prosecutors, ministers of justice, and leaders in our communities, we cannot stand by and allow members of our community to live in fear of the ramifications of this deeply troubling decision. Not all of us agree on a personal or moral level on the issue of abortion. But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions. As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion, and refrain from prosecuting those who seek, provide, or support abortions. [Internal citations omitted]
Prosecutors issued a similar 2019 letter, long before Roe and Casey were overturned, which was notably signed by then California Attorney General Xavier Becerra who now serves as the Biden Administration’s Secretary of Health and Human Services, overseeing 11 health agencies and acting as the top advisor to the President on healthcare.
In the case of an elected prosecutor (as opposed to one who has been appointed) there are limited options for state officials to force their hand.
One of the prosecutors from Florida who signed the 2022 letter is currently embroiled in litigation with Ron DiSantis over his suspension. According to the Washington Post,
Florida Gov. Ron DeSantis (R) suspended the Tampa Bay area’s top state prosecutor Thursday after he vowed not to prosecute potential crimes related to abortion restrictions or gender-affirming care for minors. Legal experts described the decision to suspend Hillsborough County State Attorney Andrew Warren (D) as alarming because it appears to be punishing an elected official exercising prosecutorial discretion on issues the governor disagrees with.
“It’s shocking and disturbing behavior,” said University of Miami law professor Tamara Lave. “[Warren is] a democratically elected official put in that office by voters. They elected him twice. If his constituents don’t like what he was doing, they have the ability to vote him out of office.”
In his order suspending Warren, DeSantis said the prosecutor “demonstrated his incompetence and willful defiance of his duties” when he signed the pledge to “use our discretion and not promote the criminalization of gender-affirming healthcare or transgender people.” …Rep. Fentrice Driskell, leader of the Florida House Democrats, called the suspension “a mean-spirited political stunt.” Driskell, who is from Tampa, said Warren has done a good job as state attorney. “Andrew Warren’s statements are well within his prosecutorial discretion,” Driskell said. “I don’t believe the governor has authority to remove him just because of decisions he doesn’t agree with. Voters put Andrew Warren in office. We have a governor who doesn’t respect representative democracy.”
Whether or not the Governor has the authority to remove him has led to a suit in federal court.
According to NPR,
Warren filed a lawsuit in U.S. District Court, saying that the governor violated his First Amendment right to freedom of speech. Although he spoke in favor of abortion rights and gender-affirming medical care, Warren had not taken any action on those issues and his office had no cases pending. Warren was twice elected as state attorney, and Warren says DeSantis violated his right to freedom of speech and by his actions overturned an election. "There's so much more at stake here than my job," Warren said at a news conference in Tallahassee. Warren says DeSantis also violated Florida law by improperly removing him from office for political reasons. "The governor's authority is not unlimited," Warren said. He's asking the court to rescind DeSantis' order and reinstate him as state attorney.
The court date is set for late November.
The concept of prosecutorial discretion is an established one, and one that continues to dominate headlines. Prosecutorial discretion, as described by one federal agency is “the longstanding authority of a law enforcement agency, and an indispensable feature of any functioning legal system, that can be used to preserve limited government resources necessary to achieve just and fair outcomes in individual cases.” Very generally this means that prosecutors decide whether to charge a person at all, or what sort of charges ought to be brought.
A common example of discretion familiar to most people comes in the form of a typical traffic stop. It is sometimes the case that when pulled over by the police for a traffic infraction, the person was let go with only a warning. This sort of ability of those enforcing the law can be a positive thing on a case-by-case basis. In more serious offenses, there can be a host of mitigating factors that would lead a prosecutor to believe it was fairer to either raise, reduce, or even drop charges based on the conduct of a defendant and the circumstances of a case. A common consideration is whether someone might be better served by a drug rehabilitation program rather than jail.
However, these sorts of broad pronouncements by prosecutors to simply say they will not enforce a law ever can become damaging to law and order. Prosecutorial discretion is not an issue limited to the abortion context.
In a piece, “In crime-battered Baltimore, a halt to some drug and prostitution prosecutions is causing fresh anxiety”, the Washington Post’s Paul Schwartzman writes,
Mosby’s approach echoes liberal policy changes in an array of cities, including New York, Los Angeles, and Dallas, where prosecutors are no longer pursuing minor crimes such as drug possession, trespassing, and loitering. Two years ago, she announced her office would no longer prosecute marijuana offenses.
“There is no public safety value in prosecuting these offenses,” she said, adding that targeting the misdemeanors breeds “mistrust of the criminal justice system” and would divert “the limited resources we have to prosecute crimes that threaten public safety….
Freund [a government compliance officer] said State’s Attorney Marilyn Mosby’s pronouncement angered her and triggered “a little feeling of hopelessness” about the future of Highlandtown, her neighborhood on the city’s southeast side.
Removal of prosecutors has proven to be rare and difficult.
According to the American Bar Association (ABA) standards regarding the removal, suspension, or substitution of a prosecutor, they suggest that a prosecutor should be circumvented when they are “incapable of fulfilling the duties of office due to physical or mental incapacity or for gross deviation from professional norms.”
Would failing to enforce abortion laws qualify as a gross deviation? It is unclear. What the ABA does go on to recommend short of removal, is using a special counsel in the place of the usual prosecutor.
Rather than face potential suspension, removal, and potentially long drawn-out court battles over prosecutorial discretion, the approach, as recommended by the ABA could be to set up a system to permit a different prosecutor in certain circumstances. A state could specify in its code that there are various officials who would be able to prosecute, not only the single unwilling elected prosecutor. This would give the power to other state officials, who were potentially willing to enforce the law, to bring charges even when a local prosecutor refuses.
In addition, the Bopp/NRLC model proposes a 6 year statute of limitations to bring actions against those providing illegal abortions. Terms for prosecutors are typically 4 years. This would mean that while a single current prosecutor may refuse to prosecute, a person breaking the law would not be able to rely on the next prosecutor having the same arrangement.
The 2019 letter where prosecutors vow not to enforce laws states,
Enforcement of laws that criminalize healthcare decisions would shatter that precedent, impose untenable choices on 3 victims and healthcare providers, and erode trust in the integrity of our justice system. To fulfill our obligations as prosecutors and ministers of justice to preserve the integrity of the system and keep our communities safe and healthy, it is imperative that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws. (emphasis added)
This carefully worded letter is walking a fine line close to implying that they will not participate in throwing “women in jail.” However, this dilemma is a fiction. While there is the argument that women had come to expect a right to abortion after living for nearly 50 years under the Roe and Casey scheme, it is important to note that there is currently no serious law being proposed nor any being supported by any major pro-life group which would punish women.
In May 2022, when the leaked Dobbs decision became public, nearly 80 state and national pro-life groups issued a letter with a release titled, “Criminalizing Women who have Abortions is Not Pro-life. They wrote,
Over the past 50 years, under the shadow of Roe v. Wade and Doe v. Bolton, abortion has taken the lives of more than 63 million unborn American children. But the tragedy of abortion isn’t limited to the unborn child who loses her life. The mother who aborts her child is also Roe’s victim. She is the victim of a callous industry created to take lives; an industry that claims to provide for “women’s health,” but denies the reality that far too many American women suffer devastating physical and psychological damage following abortion.
As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to including such penalties in legislation.
State and federal laws that restrict abortion have traditionally, and continue to rely on penalties against those providing illegal abortion, and not against women. These prosecutors are less standing with women, and more with those who would provide illegal abortions.
Another obstacle can come in the form of a top-down direction from an administration. In the immigration context, a recent law review piece observes,
Like in the criminal justice system, prosecutorial discretion is important both in terms of allocating scarce resources and mitigating unjust outcomes. But prosecutorial discretion as it is used today in immigration enforcement goes beyond these twin objectives. It has become a tool for a wholesale rewriting of immigration policy to suit the objectives the current administration espouses. [internal citations omitted]
Looking back at one example, Congress was eventually able, after years of facing veto from then-President Clinton, to pass the Federal Partial Birth Abortion Ban Act in 2003.
Despite the passage of the federal partial-birth law in 2003, many states were urged to independently pursue state-level bans on partial-birth abortion. State bans were instrumental to ensure that offenders could be prosecuted and created another layer of deterrent. The federal law is enforced by federal district attorneys who may or may not be inclined to take the time to prosecute an abortionist illegally performing the procedure. Federal prosecutors are often overloaded with other cases, and Federal district attorneys are also appointed by the President of the United States, who frequently has a political agenda.
Shockingly, as if his 2019 vow to avoid enforcement of pro-life laws was insufficient, Health and Human Secretary Xavier Becerra actually refused to even acknowledge there was a law at all in a May 2021 hearing. Politifact reporter Louis Jacobson wrote,
Congressional Republicans recently quizzed Xavier Becerra, the secretary of health and human services, on abortion policy. At a May 12 hearing, Rep. Gus Bilirakis, R-Fla., asked Becerra about some of his testimony during his confirmation hearing earlier this year, when the nominee said that his job would be to "make sure that I’m following the law." Bilirakis asked Becerra whether he agreed that "partial-birth abortion is illegal." The term generally refers to late-term procedures formally known as "dilation and extraction" or "dilation and evacuation," which opponents of abortion have long considered especially objectionable. ……One of the things Becerra said caught the attention of anti-abortion advocates — that "there is no law that deals specifically with the term ‘partial-birth abortion.’" A reader asked us to look into it, and when we did, we found that Becerra was wrong: The Partial-Birth Abortion Ban Act was enacted in 2003. Becerra should have known that: As a member of the House then, he voted against it.
With the Biden Administration’s commitment to expanding abortion, it seems highly unlikely that they would prosecute or even investigate violations of the partial-birth abortion (or any other pro-life) law.
An April 8, 2022, joint letter from 69 members of Congress to Attorney General Merrick Garland highlighted the unwillingness to even investigate a recent incident involving a potential violation of the federal Partial Birth Abortion Ban. The members of Congress wrote, “We are gravely concerned by allegations brought forward that suggest a preborn baby underwent a partial-birth abortion at the Washington Surgi-Clinic in Washington, D.C. We demand that you conduct a comprehensive investigation into the circumstances surrounding the deaths of each preborn baby.[internal citations omitted].”
The Metropolitan Police of DC took no action, and at the time of this writing, the Attorney General has taken no action.
The bottom line is that prosecution under criminal statutes is uneven and heavily dependent on which political party might be at the helm of the White House, Governorship, or at the level of a local prosecutor.
Those who work on legislation have long recognized that criminal penalties, particularly in the area of abortion, are often insufficient in deterring illegal activity. Abortion laws, like the laws in nearly every area of law, often rely on a combination of civil remedies (permitting private lawsuits and or permitting people to seek injunctions to stop illegal behavior), licensing penalties, or monetary penalties. Two of these approaches will be discussed below – civil remedies and medical licensing penalties.
In what was a novel and noteworthy approach in the year prior to the overturn of Roe and Casey, the state of Texas was able to use exclusively civil remedies to successfully protect unborn children who had a detectable heartbeat, passing SB 8. The law stayed in effect until a more comprehensive law replaced it once the Dobbs ruling was handed down. In the period from September 1, 2021, until February 28, 2022, Attorney General Ken Paxton claimed the law saved approximately 17,000 lives.
Looking back at the high profile case in a piece, “Texas’ Bounty Hunter Abortion Ban is a Dire Warning of What Lays Ahead for Our Reproductive Rights,” ACLU legal fellow Chelsea Tejada wrote,
For more than six months, people in Texas have been unable to access abortion in the state beyond the earliest weeks of pregnancy. The state’s extreme, privately-enforced abortion ban, SB 8, has cut off health care for millions — but it didn’t have to be this way. Before the law took effect, we helped Texas abortion providers and abortion support networks bring a legal challenge in federal court that presented the U.S. Supreme Court with the opportunity to protect pregnant Texans and their families by exercising its power to block SB 8. Instead, the court refused to act, allowing the law to take effect while the litigation proceeded. Subsequent decisions by both the U.S. Supreme Court and the Supreme Court of Texas have ended the possibility of any relief from our lawsuit. Unfortunately, this means that SB 8 will likely remain in effect for the foreseeable future.
The takeaway is that civil remedies worked. Physicians, rather than face the prospect of being sued, got out of the business of providing abortions after six weeks once a heartbeat could be detected. While a statutory penalty of $10,000 was provided for upon a successful civil case, Texas relied on other civil remedies as well.
In the post-Dobbs memo, Bopp writes,
To further ensure meaningful enforcement against the performance of unlawful abortions, we recommend establishing civil remedies to be brought by appropriate state or local officials and by persons related to the pregnant woman. This would permit a civil action against a person or entity that violates any provision of the abortion law for injunctive relief sufficient to prevent future violations; for compensatory damages, if the plaintiff has suffered actual injury or harm from the defendant’s conduct; for punitive damages, payable to the not-for-profit organization of the plaintiff’s choice that provides services to pregnant women; and for costs and reasonable attorney fees.
Basically speaking, there are two types of civil remedies: injunctions and civil damages. An injunction has a number of advantages. It allows an action to prevent a death before it happens. It permits a case to be brought promptly before a judge who can directly order the would-be abortion provider not to violate the law. The enjoined person then knows that if he or she violates the court order, the judge can order heavy fines for contempt of court. For most doctors, in particular, this is likely to be a far more realistic deterrent than the unlikely prospect of serving time in jail. If for example, it became known that someone was providing illegal abortions and had upcoming appointments, and was readying staff, an injunction could be sought.
As doctors' fear of malpractice liability demonstrates, sanctions that hit the pocketbook are also extremely effective. They can be enforced through the garnishment of income and the seizure of assets.
Civil damages are monies awarded after the fact, as in traditional malpractice cases. Medical malpractice insurance is often carried by one’s employer as in the case of a practitioner working for a large hospital system or say a large Planned Parenthood.
As one medical malpractice insurer put it, “Malpractice insurance comes in multiple shapes and sizes. The policy your facility needs will depend on the services offered, and the employees within….. Even so, some employees need extra coverage beyond the protection carried by the facility.”
While not every state requires medical malpractice insurance, nearly every physician carries it, often with both a group and a separate individual policy. Insurers are far more likely than say one of the many prosecutors unwilling to bring charges, to exercise strong pressure on doctors to avoid actions that could subject them to such suits.
A significant number of abortion laws currently provide that relatives and others may bring suit for civil damages even if a woman consented to an abortion. Involving family members adds another layer of uncertainty to abortion providers who might be less willing to try and risk providing an illegal abortion, since they may not know the full scope of who might sue them (the unborn child’s grandparents or father).
Further, civil remedies, unlike criminal remedies, are largely financed from the pockets of the wrongdoers, not only through fines but also through the awarding of reasonable attorney's fees to the lawyers for the plaintiffs if their suit is successful.
Setting aside the issue of an unwilling prosecutor, there is also the issue of whether a jury with sufficient lack of bias might be easily obtained. In the case of a willing prosecutor bringing charges, it is easy to imagine that (at least in the short term) it would be difficult to find a truly objective jury on an issue that is so personal and fraught with emotion.
Looking back at another high-profile social issue that commanded a great deal of coverage in the 1990s demonstrates the difficulty in even when a willing prosecutor is involved. Jack Kevorkian assisted in numerous deaths throughout his life and was eventually tried in court five separate times. In 1994, he was acquitted of violating the Michigan assisted suicide statute.
As the Los Angeles Times described at the time,
The jury started its deliberations Thursday by holding hands and standing to pray, members said Monday. Then the nine women and three men cried, argued bitterly, and traded stories about their own experiences with the terminally ill. After 9 1/2 hours over three days, they finally agreed that Kevorkian’s only motive in helping 30-year-old Thomas Hyde kill himself last August was to ease the young man’s battle with amyotrophic lateral sclerosis, a degenerative nerve disorder, which is also known as Lou Gehrig’s disease.
It was not until a more blatant televised (on 60 Minutes) violation of the law and a fifth trial that a Michigan jury found Kevorkian guilty of second-degree murder in the death of 52 Thomas Youk. It would be easy to envision a sympathetic abortion provider who claims to have been helping a woman in desperate circumstances. It is easier still to envision that as in the case of Kevorkian’s jury’s experience with a terminal illness, abortion has touched nearly every American.
The bottom line is that between potentially unwilling prosecutors and potentially sympathetic defendants, a civil trial may be the strongest path forward.
In a criminal case, the standard of proof is “beyond a reasonable doubt.” This means that the prosecutor must prove every single element of the crime beyond a reasonable doubt. If the prosecutor fails to do this, then the jury must return with a “not guilty” verdict for the defendant. This is the highest standard in any kind of court, and the verdict must be unanimous.
In a civil case, the standard of proof is typically “by a preponderance of the evidence.” This translates to the rough calculation of “was it more likely than unlikely that the defendant is responsible for the harm”. These cases also typically require 75% of the jury to agree.
Arguably the highest profile illustration of this system came in regards to the criminal acquittal but civil liability of O.J. Simpson in the 1994 slaying of Nichole Brown Simpson and Ron Goldman.
A final tool discussed here to ensure compliance with any potential abortion restriction relates to medical licensing.
In the post-Dobbs Bopp memo, he writes,
In addition to the criminal penalties provided above, we recommend requiring the State’s medical licensing board to revoke the license of a physician to practice medicine in the State if the Board determines that the physician has violated any provision of the act and to suspend the license of a physician if the Board determines that the physician has failed to make any of the required certifications or reports.
Conviction of a crime related to the practice of medicine is a nearly uniform reason in every state for grounds to revoke a physician’s license. However, as Bopp writes, the model legislation would give the licensing board the specific right to determine whether the physician has violated the law, rather than wait for a criminal conviction that might never come for the reasons set forth above.
Despite the fact that many states are attempting to protect unborn children at various stages, challenges remain. The ability of prosecutors to exercise discretion in the cases they prosecute and the announcement that many will not enforce abortion laws present one such challenge. Administrations who are unwilling to investigate violations of the law, as with Partial Birth Abortion pose another. Finally, the potential inability to access an objective jury also looms large. Nonetheless, there are tools like civil remedies and licensing penalties at the disposal of a state wishing to protect unborn children in the post-Dobbs world.
 Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).
 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
 Dobbs at 6.
 "State Pro-Life and Pro-Abortion Laws and Initiatives ." National Right to Life. 13 October 2022. Accessed 20 October 2022. https://www.nrlc.org/wp-content/uploads/PostDobbsfactsheetwherestatesstand.pdf
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 “NRLC Post-Roe Model Abortion Law Version 2.” Bopp, J., Milbank, C.T., Maughon J., 4 July 2022. https://www.nrlc.org/wp-content/uploads/NRLC-Post-Roe-Model-Abortion-Law-Version-2.pdf Accessed 20 October 2022.
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 18 USC 1531
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 “Paxton Defends SB8, Saving Thousands of Lives in the Process.” Texas Attorney General, 28 Feb. 2022, www.texasattorneygeneral.gov/news/releases/paxton-defends-sb8-saving-thousands-lives-process#:~:text=Attorney%20General%20Ken%20Paxton%20has. Accessed 20 Oct. 2022.
 Tejada, Chelsea. “Texas’ Bounty Hunter Abortion Ban Is a Dire Warning of What Lays Ahead for Our Reproductive Rights.” ACLU, 17 Mar. 2022, www.aclu.org/news/reproductive-freedom/texas-bounty-hunter-abortion-ban-is-a-dire-warning-of-what-lays-ahead-for-our-reproductive-rights. Accessed 20 Oct. 2022.
 Bopp et. al. “NRLC Post-Roe Model Abortion Law Version 2” at 7.
 “Unneeded Medical Care Is Common and Driven by Fear of Malpractice, Physician Survey Concludes.” Johns Hopkins Medicine. Accessed 20 Oct. 2022, www.hopkinsmedicine.org/news/media/releases/unneeded_medical_care_is_common_and_driven_by_fear_of_malpractice_physician_survey_concludes.
 Charatan, Fred. "Dr Kevorkian found guilty of second-degree murder." BMJ: British Medical Journal 318.7189 (1999): 962.
 Pasternak, Judy. “Kevorkian Is Acquitted for Role in Suicide.” Los Angeles Times, 3 May 1994, www.latimes.com/archives/la-xpm-1994-05-03-mn-53354-story.html. Accessed 25 Oct. 2022.
 See Charatan, Fred. "Dr Kevorkian found guilty of second degree murder."
 Bopp et. al. “NRLC Post-Roe Model Abortion Law Version 2” at 6.