As the Supreme Court appears to be on track to overturn the constitutional right to abortion, progressive prosecutors across the country are declaring that they will not enforce some of the most restrictive and punitive anti-abortion laws that Republican-led states have waited years to enact.
The move is certain to irritate Republican legislators and governors, with roughly half of the states poised to outlaw abortion if Roe v. Wade — the 1973 decision establishing a constitutional right to abortion — is weakened or overturned. Many of those Republican-led states have abortion clinics tucked away in major metropolitan areas represented by Democratic district attorneys.
Anti-abortion legislation in the United States generally avoids explicitly punishing pregnant women, instead focusing on physicians, who could face loss of their medical license and lengthy prison sentences for performing the procedure illegally. However, some abortion restrictions would penalize those who assist in an abortion, while others might require women who obtained the procedure to testify against those who assisted her.
However, enforcement of these laws will be largely in the hands of district attorneys, who have broad discretion in deciding who to charge with crimes. Currently, it is not uncommon for prosecutors elected in Democratic counties to express opposition to bringing charges under various GOP-backed mandates ranging from voting restrictions, limits on certain protest activity, laws aimed at LGBTQ people, and mask requirements throughout the COVID-19 outbreak.
More than 70 prosecutors from blue districts across the country announced in 2020 that they would not bring charges under increasingly stringent abortion laws passed by states because they “should not and will not criminalize healthcare decisions.”
So far, a growing number of prosecutors elected in Democratic counties have pledged not to pursue the criminal charges tucked inside the most stringent abortion restrictions.
Michigan has become a hotspot for debate over who will enforce the state’s abortion laws. Seven Democratic prosecutors have vowed not to enforce the state’s long-dormant abortion ban, while two Republican prosecutors have joined abortion opponents in seeking to overturn the 1931 statute’s recent suspension.
Since abortion was legalized nationwide, the law making it a crime to assist in an abortion has had no practical effect.
Nashville’s Democratic District Attorney Glenn Funk issued a statement just hours after the leaked draft opinion was published in early May in GOP-controlled Tennessee. Funk promised to stick to his previous position of not prosecuting medical practitioners who perform abortions or pregnant women who seek the procedure.
The attorney general’s office claims that it has not yet used the new law. Meanwhile, the state’s top Republican leaders, who oversee every major political office, have remained silent on Funk’s defiance, and his office has declined to respond to follow-up questions.
In the event that Roe is overturned, the National Right to Life Committee, which advocates for abortion restrictions, has developed model legislation that would, among other things, authorize state attorneys general to file charges in abortion cases if local prosecutors refuse.
Texas, like Tennessee, has so-called trigger laws, which would prohibit most abortions and go into effect almost immediately if the Supreme Court overturned Roe v. Wade. That decision is expected in late June or early July.
The statement came just weeks after a Texas woman was arrested and charged with murder after a grand jury indicted her for allegedly causing “the death of an individual… by self-induced abortion.” Starr County District Attorney Gocha Allen Ramirez moved quickly to dismiss the charges, claiming the woman had broken no state laws. Nonetheless, the incident reinforced abortion rights advocates’ warnings that prosecutors will play a critical role in how anti-abortion laws are enforced on a local level.
Such decisions are made at a time when these lawyers must frequently win elections in order to assume the top prosecutorial role in their community. While many Republican hopefuls have publicly stated their intention to fully enforce the strictest anti-abortion laws, Democratic candidates are hoping their resistance will be enough to woo enough voters in key states.
