As abortion bans go into effect in states across the US, how strongly the laws are enforced will depend on local prosecutors – and some are promising not to bring abortion providers to court.
More than a third of the 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.
Their declarations could set up legal clashes between more liberal prosecutors in urban centers and red-state attorneys general and legislators, some of whom are already planning to wrest control of abortion cases from local authorities.
Still, experts and abortion providers said that it was unlikely that promises from district attorneys alone would prompt abortion clinics to reopen in states that have laws banning the procedure, as uncertainty remains over the impact of the Supreme Court’s decision striking down the Roe v. Wade precedent.
“A prosecutor really does have a lot of discretion to decide their priorities and cases,” said Rachel Barkow, a New York University law school professor who has studied prosecutors’ role in the criminal justice system. “But they could get voted out of office, or states could give the authority to prosecute to someone else.”
While assurances from prosecutors were helpful, abortion providers would likely be “concerned that that’s not sufficiently concrete and permanent,” she added.
The district attorneys speaking out – whose jurisdictions are home to more than 10 million people – argue that they have the authority to prioritize other crimes instead of bringing cases against abortion providers.
“A prosecutor’s job is to protect public safety, and to enforce this law will not only fail to promote or protect public safety but will also lead to more harm,” José Garza, the district attorney of Travis County, Texas, which includes Austin, declared in a statement.
Other district attorneys who have vowed not to prosecute abortion represent Dallas, San Antonio, Milwaukee, Nashville, and Birmingham, among other cities. CNN’s review included the 13 states with trigger laws that ban abortion following the Supreme Court decision, as well as two other states where abortion bans have gone into effect, Wisconsin and Alabama. Courts are reviewing some of those bans.
Many of the district attorneys signed a joint statement released Friday in which they committed to “refrain from prosecuting those who seek, provide, or support abortions.”
“They don’t all agree on the issue of abortion, but what they agree on is that this is not a smart or efficient or wise use of limited prosecutorial resources,” said Miriam Krinsky, the executive director of Fair and Just Prosecution, a criminal justice reform group that organized the statement. “They are going to become the last line of defense.”
Abortion opponents have blasted the district attorneys who 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 legislators that would allow state attorneys general to take over prosecution of abortion when local prosecutors decline to do so.
“They were not elected to decide what the law was,” Bopp said of the district attorneys. “If they don’t want to enforce these laws, then we’ll have somebody else do it.”
Other district attorneys in states with abortion bans told CNN that they would evaluate abortion prosecutions on a case-by-case basis.
“It is a dangerous path for a DA to make broad and hypothetical statements without an actual charge or case before them,” Amy Weirich, the head prosecutor in Shelby County, Tennessee, which includes Memphis, said in an email. Tennessee’s trigger law banning abortion is set to go into effect within the next two months, while a more limited ban on abortions after around six weeks of pregnancy went into effect Tuesday.
The impact of district attorneys declining to prosecute will likely vary from state to state. In Texas, even if local district attorneys don’t charge abortion providers criminally, state Attorney General Ken Paxton – who has applauded the Supreme Court decision – can still file civil suits against providers, potentially making them liable for huge fines.
That means abortion clinics in the state would “still have a lot of legal jeopardy,” said Sandra Guerra Thompson, a University of Houston law professor. (A judge has temporarily blocked Texas’ total ban, allowing some clinics to reopen and resume abortions up to around six weeks of pregnancy, but the reprieve is likely to only last a few weeks.)
In addition, a Texas state representative has said he plans to introduce a bill during the state’s legislative session next year to allow district attorneys in neighboring counties to file charges if a local DA declines to prosecute an abortion case. Abortion opponents have also suggested that district attorneys who vow not to prosecute abortion could be removed from office under a state law targeting local officials who “neglect” to “perform a duty imposed on the officer by law” – although Thompson said she thought that was unlikely.
Still, the uncertainty has encouraged some prosecutors to tread more carefully. Even as district attorneys in Texas’ other biggest cities signed the letter vowing not to prosecute abortion, Harris County DA Kim Ogg, who represents Houston, has been more circumspect. She decried the high court ruling and joined a demonstration in support of abortion rights, but said in a statement that she would evaluate abortion prosecutions on a case-by-case basis because she does “not want to take the chance of being found to be in dereliction of our duty.”
A spokesperson for Planned Parenthood Federation of America said that her group wasn’t aware of any provider that would continue providing abortion based on prosecutors’ statements alone. In Nashville, for example, while DA Glenn Funk vowed not to prosecute abortion providers and compared the Supreme Court’s abortion ruling to the pro-slavery Dred Scott case, the local Planned Parenthood chapter said his statement wouldn’t let them ignore state restrictions.
“While we appreciate the support of Nashville’s DA for our reproductive freedom,” said Savannah Bearden, a spokesperson for Planned Parenthood of Tennessee and North Mississippi, the group plans to “continue to abide by the law” in order to protect its patients and providers and make sure its clinic can continue providing other health care services.
Some providers are also worried that statutes of limitation for state abortion laws could outlast district attorneys’ terms in office, leaving open the possibility of future prosecutors charging cases that their predecessors declined to charge.
Promises not to prosecute could be more impactful in purple states where local district attorneys are backed up by state officials. In Wisconsin, for example, district attorneys in the two largest cities, Milwaukee and Madison, have said they won’t prosecute cases under the state’s century-old abortion ban that went into effect last week. Gov. Tony Evers, a Democrat, has also promised to grant clemency to any medical provider convicted of abortion, and State Attorney General Josh Kaul has argued against the ban in court.
“If the voters want a district attorney who prosecutes women for seeking an abortion or licensed providers who are acting in the best interest of their patients, they will need to elect someone else,” said Dane County DA Ismael Ozanne, who represents Madison.
Meanwhile, abortion is likely to become a driving issue in high-stakes elections for DA positions. In Maricopa County, Arizona, one of the most populous counties in the US, the Republican DA who has said she would prosecute some abortion cases is facing a special election later this year. The only Democratic candidate in the race has said she won’t prosecute abortions.
Rachel Mitchell, the Maricopa DA, told local news outlets that she would decline to prosecute providers who perform abortions on victims of rape or incest, but enforce Arizona’s other abortion laws. A ban on abortion after 15 weeks is set to go into effect in Arizona in September, and state officials are debating whether another pre-Roe ban is in effect.
Similar battle lines over abortion have been drawn between candidates for district attorney in elections later this year in Tennessee.
“We’re going to see elections framed around this issue,” Barkow, the NYU professor, predicted. “A lot of voters will be mobilized on both sides,” she said, and in what are typically low-turnout local races, “it could be the kind of thing that makes a difference.”