More than a third of district attorneys representing the 25 most populous counties in states that have banned or will ban abortion have publicly pledged not to prosecute abortion cases, according to a CNN review, which could limit the impact of new restrictions.
His statements could lead to legal clashes between more liberal prosecutors in urban centers and general prosecutors and red state lawmakers, some of whom are already planning to take control of abortion cases to local authorities.
However, abortion experts and providers said it was unlikely that district attorneys’ promises would only lead to reopening abortion clinics in states that have laws banning the procedure, as there is still uncertainty. on the impact of the Supreme Court decision overturning Roe v. previous.
“A prosecutor really has a lot of discretion in deciding their priorities and their cases,” said Rachel Barkow, a professor at New York University Law School who has studied the role of prosecutors in the criminal justice system. “But they could be voted out of office, or states could give the authority to prosecute someone else.”
While prosecutors ’assurances were helpful, abortion providers would likely be“ concerned that this is not concrete and permanent enough, ”he added.
Speaking district prosecutors, whose jurisdictions are home to more than 10 million people, argue that they have the authority to prioritize other crimes rather than filing cases against abortion providers.
“The job of a prosecutor is to protect public safety and enforcing this law will not only not promote or protect public safety, but will also cause more harm,” said Jose Garza, Travis County, Texas District Attorney. which includes Austin. Other district attorneys who have promised not to prosecute abortion represent Dallas, San Antonio, Milwaukee, Nashville and Birmingham, among other cities. CNN’s review included the 13 states with activating laws banning abortion following the Supreme Court decision, as well as two other states where abortion bans have come into effect, Wisconsin and Alabama. The courts are reviewing some of these bans. Many of the district’s prosecutors signed a joint statement released Friday in which they pledged to “refrain from prosecuting those who seek, provide or support abortion.”
“Not everyone agrees on the issue of abortion, but what they agree on is that it is not a smart, efficient or prudent use of limited tax resources,” said Miriam Krinsky. executive director of Just and Just Prosecution, a criminal justice reform group that organized the statement. “They will become the last line of defense.”
Opponents of abortion have criticized district prosecutors who joined the effort. James Bopp, Jr., the general counsel for the National Committee on the Right to Life, called his stance “undemocratic.” His group has proposed a model law for lawmakers that would allow state attorneys general to take on the prosecution of abortion when local prosecutors decline to do so.
“They weren’t chosen to decide what the law was,” Bopp said of district prosecutors. “If they don’t want to enforce those laws, we’ll make someone else do it.”
Other state district prosecutors with abortion bans told CNN they would evaluate abortion cases on a case-by-case basis.
“It’s a dangerous path for a tax attorney to make broad, hypothetical statements without a charge or actual case before him,” Amy Weirich, the chief prosecutor in Shelby County, Tennessee, which includes Memphis, said in an email. Tennessee’s active law banning abortion will go into effect in the next two months, while on Tuesday a more limited ban on abortions came into force after about six weeks of pregnancy.
The impact of district attorneys refusing to prosecute is likely to vary from state to state. In Texas, even if local prosecutors do not criminally charge abortion providers, state Attorney General Ken Paxton, who has applauded the Supreme Court decision, can still file civil lawsuits against providers, which can make them responsible for large fines. That means state abortion clinics “would still have many legal dangers,” said Sandra Guerra Thompson, a law professor at the University of Houston. (A judge has temporarily blocked Texas’ total ban, allowing some clinics to reopen and resume abortions for up to six weeks of pregnancy, but the suspense is likely to last only a few weeks.) state of Texas has said it plans to introduce a bill during the state legislative session next year to allow district attorneys in neighboring counties to file charges if a local prosecutor refuses to prosecute an abortion case. Opponents of abortion have also suggested that district prosecutors who promise not to prosecute abortion could be removed from office under a state law aimed at local officials who “neglect” to perform a duty imposed by law. to the officer, “though Thompson said he thought it was unlikely.
Still, uncertainty has encouraged some prosecutors to be more careful. While district attorneys in other major Texas cities signed the letter promising not to prosecute the abortion, Harris County Attorney Kim Ogg, who represents Houston, has been more cautious. He denounced the high court ruling and joined a rally in support of abortion rights, but said in a statement that it would evaluate abortion cases on a case-by-case basis because “it does not want to risk that the determine “. in neglect of our duty “.
A spokesman for the Planned Parenthood Federation of America said his group did not know of any providers who would continue to offer abortion based solely on prosecutors’ statements. In Nashville, for example, while prosecutor Glenn Funk vowed not to prosecute abortion providers and compared the Supreme Court’s abortion ruling to the Dred Scott pro-slavery case, the local Planned Parenthood chapter said their statement would not allow them to ignore state restrictions.
“While we appreciate Nashville DA’s support for our reproductive freedom,” said Savannah Bearden, a spokeswoman for Planned Parenthood in Tennessee and North Mississippi, the group plans to “continue to comply with the law” to protect its patients and providers. . and ensure that your clinic can continue to provide other health care services.
Some providers are also concerned that statute of limitations on state abortion laws may last longer than the terms of the district attorneys in office, leaving open the possibility for future prosecutors to charge cases that their predecessors refused to charge. .
Promises not to prosecute could have more of an impact on purple states where local prosecutors are backed by state officials. In Wisconsin, for example, district attorneys for the two largest cities, Milwaukee and Madison, have said they will not prosecute cases under the state’s centennial abortion ban that went into effect last week. Democrat Gov. Tony Evers has also pledged to grant clemency to any medical provider convicted of abortion, and state Attorney General Josh Kaul has argued against the ban in the courts.
“If voters want a district attorney to prosecute women to request an abortion or authorized providers who act in the best interests of their patients, they will have to choose someone else,” said Ismael Ozanne, Dane County Attorney, who represents Madison.
In the meantime, abortion is likely to become a driving problem in high-risk elections for DA positions. In Maricopa County, Arizona, one of the most populous counties in the United States, the Republican prosecutor who has said he would prosecute some abortion cases faces a special election later this year. The only Democratic candidate in the race has said she will not prosecute abortions.
Rachel Mitchell, the Maricopa prosecutor, told local media she would refuse to prosecute providers who perform abortions on rape or incest victims, but enforce other Arizona abortion laws. The 15-week abortion ban will take effect in Arizona in September, and state officials are debating whether there is another ban before Roe.
Similar battle lines have been drawn over abortion among district attorney candidates in this year’s late-year election in Tennessee.
“We’re going to see elections framed around this issue,” predicted Barkow, the NYU professor. “A lot of voters will mobilize from both sides,” he said, and in what are usually local races with little participation, “it could be the kind of things that make a difference.”