Now that the U.S. Supreme Court has overturned Roe v. Wade, more than half of all states are poised to ban abortion immediately, forcing hundreds of abortion providers to close their doors.
Anticipating the legal tumult to come, Democratic county prosecutors, mayors and city council members in at least seven conservative states have vowed not to enforce strict abortion bans, arguing that their job is to protect, not harm, the public.
In recent years, progressive local officials increasingly have clashed with more conservative state legislatures on issues including guns, minimum wage standards, marijuana legalization and COVID-19 policies. Now that the U.S. Supreme Court has freed states to enforce stricter abortion laws, the bans will become another rift between blue cities and red states.
Already, liberal district attorneys in Arizona, Georgia, Louisiana, Michigan, Tennessee, Texas and Wisconsin have said they won’t prosecute cases under the abortion bans that have become effective with the reversal of Roe v. Wade
“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” Austin City Council Member Chito Vela told Politico. Vela proposed a city resolution to not enforce Texas’ abortion law.
While abortion rights advocates welcome the pronouncements, they predict the promises won’t be enough to persuade most abortion providers to continue practicing.
“Local officials who are willing to stand up and make clear where their values are and make clear that these bans will be harmful is an important step,” said Andrea Miller, president of the National Institute for Reproductive Health, which supports abortion access. “But I can’t say that it would give me enough confidence if I were a provider.”
At the same time, conservative state officials say they’re planning to push back against the mostly urban prosecutors. Abortion opponents say that after today’s ruling, enforcement of state abortion bans will be a top priority.
If local prosecutors decide not to embrace the job of enforcing abortion laws, said Clarke Forsythe, senior counsel for abortion opponents Americans United for Life, “state officials will need to step up, and prosecutors in other counties will need to step up.” STATELINE STORY May 4, 2022More States Shield Against Rogue Abortion Prosecutions
Texas Republican state Rep. Briscoe Cain, for example, said earlier this year that he would file a bill in the 2023 legislative session to allow district attorneys to prosecute abortion violations in areas outside their jurisdiction, according to The Texas Tribune.
Even if no prosecutor steps in, private citizens anywhere in the country can file a lawsuit against a Texan suspected of performing an abortion or assisting someone in obtaining one under a 2021 state law that bans abortions after six weeks of pregnancy, before many know they’re pregnant.
Still, Forsythe said, history shows that “unless the public strongly supports abortion law enforcement in major metro areas, it’s unlikely to happen.”
‘Little Solace’
For the 40 million women of childbearing age in roughly half the country where abortion is likely to become illegal immediately, it is unclear how much local prosecutorial defiance of state abortion bans will make a difference. Abortions may not be available locally anyway.
Unless providers are willing to risk performing the procedure despite the fear of detection by state officials, prosecutors from outside their districts or citizen vigilantes, most pregnant people will have little choice but to travel to a state that has not criminalized abortion, Miller said.
Few medical professionals likely will be willing to put their staffs and patients at risk of arrest and jeopardize their own livelihoods, she said.
“We appreciate the effort these city and county officials are making,” said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, which advocates for abortion rights. “But everything is so unclear at this point that we as physicians don’t know what is going to happen when the rubber hits the road and these laws take effect.”
There’s no question that local prosecutors in most states have unfettered authority to decide which cases to pursue based on local law enforcement priorities and available evidence, legal experts say. But their power ends when the office changes hands.
“These are important statements from local prosecutors, and they indicate the harm that law enforcers expect to come from criminalizing pregnancy outcomes,” said David Cohen, a law professor at Drexel University in Philadelphia. “But abortion providers and their patients can’t take much solace in them.
“District attorneys get fired and replaced all the time, and they die,” Cohen said. “A new DA can come in and decide to prosecute an old case, and depending on the state’s statute of limitations, a provider could be charged for a procedure that took place four, five, six years ago.”
Local Resistance
Pledges to not prosecute violations of state abortion bans have been pouring in from local prosecutors ever since a leaked draft opinion in May indicated the U.S. Supreme Court was prepared to overturn its Roe v. Wade ruling.
But liberal prosecutors in 2019 also spoke out against earlier abortion laws, expressing their unwillingness to enforce so-called heartbeat bills that aimed to criminalize abortion after fetal cardiac activity could be detected, around six weeks of pregnancy. Although the laws were deemed unconstitutional at the time, abortion rights supporters foresaw the possibility that the high court would reverse its 1973 ruling.
“In our view, resources are better utilized to prevent and address serious crimes that affect our communities rather than enforcing laws such as these that divide our community, create untenable choices for women and healthcare providers, and erode trust in the criminal justice system,” the group of 68 prosecutors from 23 states wrote.
Current U.S. Health and Human Services Secretary Xavier Becerra, then California attorney general, was among the group, as were prosecutors from Alabama, Georgia, Mississippi and Missouri, where lawmakers were passing the strict abortion bans. Four district attorneys from Texas also signed the letter. STATELINE STORY May 27, 2022State Courts Could Overturn Abortion Bans in Red States
In April, after a 26-year-old woman was arrested in Starr County, Texas, and briefly charged with murder over a self-induced abortion, those same four attorneys—from counties that include Austin, Corpus Christi, Dallas and the suburbs of Houston—reiterated their commitment.
They were joined by District Attorney Joe Gonzales of Bexar County, where San Antonio is located, in signing a letter in support of Starr County District Attorney Gocha Allen Ramirez for his decision to dismiss the abortion case.
“This tragic incident is a troubling but unsurprising outgrowth of the misguided efforts in various parts of the country to outlaw personal healthcare and reproductive decisions,” the Democratic prosecutors wrote.
A few weeks later, Austin council member Vela announced he was working on a resolution to instruct police not to investigate abortion providers or women who get abortions. He noted that the proposal was similar to the city’s position on enforcement of laws that criminalize possession of marijuana.
Beyond Texas, a growing chorus of Democratic district attorneys in conservative states is publicly promising not to enforce their states’ strict abortion laws if Roe v. Wade is overturned.
In Arizona, where Republican Gov. Doug Ducey signed a law in March that criminalizes abortion after 15 weeks of pregnancy, Tucson’s city council and Democratic Mayor Regina Romero this month passed a resolution denouncing the law. It called on the police chief to set “law enforcement priorities that consider the need to protect the physical, psychological, and socioeconomic wellbeing of pregnant people and their care providers.”
In Georgia, where Republican Gov. Brian Kemp signed a law banning abortion after six weeks of pregnancy, attorneys for the state’s four most populous counties—Fulton, Gwinnett, Cobb and DeKalb, all in the Atlanta metro area—told The Atlanta Journal-Constitution they would not prosecute women under the 2019 law. Atlanta’s mayor-elect Andre Dickens recently said he supports an effort by the city council to make enforcement of anti-abortion laws a low priority.
Similarly, Orleans Parish District Attorney Jason Williams in Louisiana wrote in a May letter: “I cannot and will not shift the priority from tackling shootings, rapes and carjackings to investigating the choices women make with regard to their own bodies.”
In Michigan, Democratic prosecutors in Ann Arbor, Detroit, Flint and Lansing wrote a letter promising not to enforce a dormant 1931 abortion law that includes criminal penalties for anyone who assists in the procedure if the law is allowed to take effect, the Associated Pressreported.
In Tennessee, where a law classifying abortion as a felony would take effect within 30 days of the Supreme Court overturning Roe, the Democratic attorney for Davidson County, which includes Nashville, vowed in a statement on his reelection campaign website not to prosecute anyone for abortions.
And in Wisconsin, where the GOP-led legislature this week rejected Democratic Gov. Tony Evers’ request to repeal a dormant 1849 law that would make abortion a felony, the liberal city of Madison passed a resolution calling on police to not arrest people suspected of violating the ban and instead refer them to the state health department.
Stateline, an initiative of The Pew Charitable Trusts.
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