Abortion: Some district attorneys in major cities vowed not to prosecute providers and engaged in legal battles in red states
More than a third of district attorneys representing the 25 most populous counties in states that have banned or are set to ban abortion have publicly vowed not to prosecute abortion cases, according to a CNN review, potentially limiting the impact of the new restrictions.
Her statements could spark legal battles between more liberal prosecutors in urban centers and Red State prosecutors and lawmakers, some of whom are already planning to take control of abortion cases away from local authorities.
“A prosecutor really has a lot of discretion to make decisions about their priorities and their cases,” said Rachel Barkow, a New York University law professor who has researched the role of prosecutors in the criminal justice system. “But they could be voted out, or states could delegate law enforcement powers to someone else.”
While assurances from prosecutors have been helpful, abortion providers would likely be “concerned that this is not sufficiently concrete and enduring,” she added.
The prosecutors speaking out — whose jurisdictions include more than 10 million people — argue they have the power to prioritize other crimes rather than bring charges against abortion providers.
“They don’t all agree on the abortion issue, but they do agree that it’s not a wise or efficient or wise use of limited prosecutorial resources,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a group on prosecution Criminal justice reform that organized the declaration. “You become the last line of defense.”
Anti-abortion advocates have blasted prosecutors who have joined the effort. James Bopp, Jr., the general counsel of the National Right to Life Committee, called their stance “anti-democratic.” His group has proposed a model law for lawmakers that would allow attorneys general to take over prosecuting abortions if local prosecutors refuse.
“They weren’t elected to decide what’s right,” Bopp said of the prosecutors. “If they don’t want to enforce these laws, then let someone else do it.”
Other district attorneys in states with abortion bans told CNN they would review abortion procedures on a case-by-case basis.
“It’s a dangerous way for a prosecutor to make broad and hypothetical statements without having an actual charge or case in hand,” said Amy Weirich, the chief prosecutor for Shelby County, Tennessee, which includes Memphis, in one E-mail. Tennessee’s trigger law banning abortions is scheduled to take effect within the next two months, while a more limited ban on abortions after about six weeks of pregnancy went into effect on Tuesday.
Still, the uncertainty has encouraged some prosecutors to take a more cautious approach. Even as prosecutors in Texas’ other largest cities signed the letter pledging not to prosecute abortions, Harris County Prosecutor Kim Ogg, representing Houston, was more cautious. She condemned the Supreme Court ruling and joined a demonstration in support of abortion rights, but said in a statement that she would look at prosecutions for abortion on a case-by-case basis because she “doesn’t want to take the risk that they’re not be found in neglect of our duty.”
A spokeswoman for the Planned Parenthood Federation of America said her group was not aware of any provider that would continue to offer abortions based solely on prosecutors’ testimonies. In Nashville, for example, while DA Glenn Funk vowed not to prosecute abortion providers and compared the Supreme Court’s abortion ruling to the Dred Scott slavery case, the local chapter of Planned Parenthood said its statement would not allow them to state ignore restrictions.
“While we appreciate the Nashville Attorney’s support for our reproductive freedom,” said Savannah Bearden, a spokeswoman for Planned Parenthood of Tennessee and North Mississippi, the group plans to “continue to comply with the law” to care for their patients and providers and ensure his clinic can continue to provide other healthcare services.
Some vendors also worry that statutes of limitations on state abortion laws could outlast prosecutors’ tenures, leaving open the possibility that future prosecutors will prosecute cases that their predecessors dismissed.
The promise of no prosecution might be more effective in purple states, where local prosecutors are assisted by state officials. In Wisconsin, for example, district attorneys in the two largest cities, Milwaukee and Madison, have said they will not prosecute cases under the state’s centuries-old abortion ban that went into effect last week. Gov. Tony Evers, a Democrat, has also promised clemency to any medical provider convicted of abortion, and Attorney General Josh Kaul has argued in court against the ban.
“If voters want a district attorney who prosecutes women for seeking abortion or licensed providers who act in the best interests of their patients, they need to vote for someone else,” said Ismael Ozanne, the Dane County Attorney representing Madison .
In the meantime, abortion is likely to become a driving issue in high-level elections for DA positions. In Maricopa County, Arizona, one of the most populous counties in the US, the Republican prosecutor’s office, which has announced it will prosecute some abortion cases, faces a special election later this year. The only Democratic candidate in the running has said she will not prosecute abortions.
Similar lines of argument over abortion were drawn between candidates for district attorney in Tennessee’s election later that year.
“We’re going to see elections centered around this issue,” predicted Barkow, a professor at NYU. “A lot of voters are being mobilized on both sides,” she said, and with local races that typically have low turnout, “it could be something that makes a difference.”