Are Collateral Sanctions Premised on Conduct or Conviction? The Case of Abortion Doctors

Abstract

When a disability is imposed because of a criminal conviction, it makes a great deal of difference whether it is categorized as a civil regulation, which governments may impose rather freely under the police power, or punishment which is subject to numerous restrictions under the Bill of Rights, such as the prohibitions on double jeopardy and ex post facto laws, and the requirements of jury trial, counsel, and proof beyond a reasonable doubt. This essay analyzes the first major Supreme Court case to explore the distinction, Hawker v. New York, decided in 1898, which dealt with a criminal prosecution of an abortion doctor. A majority of the Supreme Court held that denial of the right to practice medicine to those convicted of abortion was not punishment, it was merely a legislative judgment that persons who engaged in illegal behavior had bad moral character and thus were not entitled to a medical license. The sanction was based on the underlying conduct rather than the conviction itself; the conviction was merely a method of proof. Accordingly, the Court reasoned, imposing the disability on Hawker after his sentence had been fully served did not violate the ex post facto clause.

This essay argues that the distinction Hawker attempted to draw quickly evaporated. The New York legislature established a regime of administrative disciplinary hearings, and granted medical administrators the discretion to impose whatever sanctions were appropriate, including temporary suspension rather than license revocation, on doctors found to have performed unlawful abortions in such hearings. Thus, conviction rather than conduct was the critical factor.

This essay concludes by arguing that Hawker was on to something. If disqualification is genuinely based on conduct, it is likely to have a regulatory purpose; an applicant denied a position at a bank because of an embezzlement conviction is not being criminally punished. On the other hand, if a sanction is applied exclusively to those convicted of particular conduct, and not to those who admit the conduct, or are proved to have engaged in the conduct in civil, disciplinary or administrative proceedings, the legislative motivation may be punitive. For example, if an applicant for a medical license is automatically denied because of a conviction for tax evasion, when an applicant who admitted liability in a civil case charging precisely the same conduct could get a license, the automatic denial looks like punishment.

Keywords: abortions, collateral consequences, ex post facto, administrative law

JEL Classification: K14, K42, I18