Some Prosecutors Say They Wont Enforce Their States Abortion Bans

In the hours after the U.S. Supreme Court struck down Roe v. Wade on Friday, dozens of prosecutors throughout the country indicated that they would refuse to enforce laws banning abortion. 

Prosecutors “are entrusted with immense discretion” and make decisions every day about how to allocate limited resources and which cases to prosecute,” a group of more than 80 prosecutors wrote in a joint statement on Friday. “Criminalizing and prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that,” the group said. 

Many of those prosecutors are based in one of the 13 states with so-called trigger laws that outlawed abortion as soon as Roe v. Wade was overturned. Others work in states where abortion is still currently allowed but have preemptively staked their position in the event that the laws change without the protection of Roe . 

Although prosecutors can shield individuals in their jurisdiction from criminal punishment as long as they’re in office, relying on prosecutors is an imperfect solution for the Supreme Court’s erosion of abortion protections. Because many abortion bans do not have a statute of limitations, abortion providers may be hesitant to operate even in a jurisdiction with a supportive prosecutor out of fear of punishment by a future prosecutor. Moreover, the patchwork of prosecutors who have indicated they will not pursue abortion cases tends to be in cities and more progressive areas, leaving millions behind. But in the immediate aftermath of the Supreme Court ruling, abortion rights advocates looked to prosecutors for assurances. 

On Friday, Texas Democratic Party chair Gilberto Hinojosa and vice chair Shay Wyrich Cathey called on Democratic sheriffs, district attorneys, county judges, county commissioners, constables and Texas mayors to “use your legal authority and discretion to refuse to enforce the provisions of Senate Bill 8, Senate Bill 4, and House Bill 1280: all new laws passed by our extremist, Republican-controlled legislature in 2021.” District attorneys in Dallas County, Travis County, Nueces County, Fort Bend County and Bexar County have already promised “not to prosecute or criminalize personal healthcare decisions.”

There is also an effort in Austin to protect its residents from the state’s abortion ban. On Friday, Austin City Council members Jose “Chito” Vela and Vanessa Fuentes called for a special council meeting to pass a resolution that would prohibit city funds from being used to investigate or report abortion and would direct Austin police to designate abortion as their lowest priority for criminal investigation. 

Texas, along with Missouri, was one of the first states to ban abortion on Friday, immediately after the Supreme Court ruling. “Abortion is now illegal in Texas,” the state’s attorney general, Ken Paxton, tweeted Friday. Although the state’s “trigger ban” on abortion goes into effect 30 days after a Supreme Court decision, Paxton appeared to be referring to pre-Roe abortion bans, which were never repealed by the Texas Legislature but were unenforceable while Roe was in effect. 

The Texas law that goes into effect in 30 days mandates the harshest criminal penalties on abortion in the country. The law will make inducing or attempting an abortion a first-degree felony, punishable with up to life imprisonment and a fine of up to $10,000. Although the law targets abortion providers, experts fear that the vague wording will lead to prosecution of people who pursue self-managed abortions , as well as abortion providers. An individual who self-manages an abortion is not legally subject to any prosecution except in Nevada, South Carolina and Oklahoma. 

Texas is one of 13 states with trigger laws that passed earlier and put on standby awaiting the Supreme Court’s overturning of Roe. In Louisiana, another state with a trigger law, Orleans Parish District Attorney Jason Williams indicated he wouldn’t “shift priorities” to prosecute abortion-related cases. In Wisconsin, where a Democratic governor is all that stands between anti-abortion legislation becoming law, Dane County District Attorney Ismael Ozanne indicated on Friday that he would not enforce an abortion ban. 

Where prosecutors stand on abortion-related prosecutions is likely to become a campaign issue in upcoming elections. In Arizona, Julie Gunnigle, a candidate for county attorney in Maricopa County, recently told Bolts that she would “never prosecute a patient, a provider, or a family for choosing to have an abortion or any other reproductive decision.” Gunnigle is running against incumbent Rachel Mitchell, who is best known for grilling Christine Blasey Ford, the woman who accused then-Supreme Court nominee Brett Kavanaugh of sexual assault, on behalf of Senate Republicans at his confirmation hearing. Arizona currently has a 15-week abortion ban, although without the protection of Roe, the Republican-controlled legislature could move to make the law more restrictive.