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District attorneys could be a last defense against abortion bans

An anti-abortion activist holds up a sign that read “We Dissent” in front of the Supreme Court on June 25, 2022, in Washington, DC.  | Alex Wong/Getty Images

More than 80 elected prosecutors have already committed to not enforcing abortion bans.

District attorneys in more than 10 states where abortion is now banned or likely will be soon have committed to not prosecute people for obtaining abortions, following the Supreme Court’s Friday decision overturning Roe v. Wade.

In a joint statement Friday, more than 80 elected prosecutors argued that doing so would abuse their offices’ limited criminal justice resources, though many are from states that are supportive of abortion rights.

“Not all of us agree on a personal or moral level on the issue of abortion. But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions,” their statement says. “As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

They argue that criminalizing abortion will make the procedure less safe by pushing it underground and isolating those who need it from law enforcement, medical, and social resources, as well as force medical providers to make “impossible decisions.” That’s particularly true in cases of sexual abuse, rape, incest, human trafficking, or domestic violence.

“Prosecutors, police, and our medical partners cannot do our jobs when many victims and witnesses of crime or other emergencies are unwilling to work with us for fear that their private medical decisions will be criminalized,” they said.

District attorneys are becoming a last line of defense for abortion rights as states start to activate preexisting “trigger” laws that were designed to outlaw abortion after the Supreme Court overturned Roe. But there are also limits to how much they can resist bans and shield abortion providers from criminal and financial liability.

District attorneys have more power to shield abortion providers in some states than in others

In some states, those district attorneys will be able to use their extensive legal discretion to decide whether abortion bans will be enforced at the local level. That’s the case in Louisiana, where a trigger ban went into immediate effect Friday that imposes maximum criminal penalties for doctors or others who terminate pregnancies of $200,000 fines and 15 years in jail for late-term abortions.

“District attorneys in Louisiana have unbridled discretion to decide what sorts of cases to prosecute and which sorts of offenses to let go unprosecuted,” Loyola University New Orleans law professor Dane Ciolino told WWL-TV.

Jason Williams, the district attorney for Orleans Parish, Louisiana, has already indicated that he does not intend to enforce the trigger law.

But in other states, including Texas, district attorneys’ refusal to enforce abortion bans may have a limited impact. Under Texas’s trigger law, which will go into effect 30 days after the Supreme Court issues its official judgment in the case overturning Roe, the state’s Republican attorney general, Ken Paxton, could override local district attorneys and go after abortion providers and funds.

The Texas law creates first- and second-degree felony offenses for providing or aiding in any abortion starting at fertilization that carry up to lifetime prison sentences. Paxton can’t prosecute abortion providers under the law on his own. But he can unilaterally seek potentially ruinous civil penalties — up to $100,000 per abortion — against them.

There’s also no guarantee that a district attorney can protect abortion providers from criminal liability forever. Some are elected and others appointed, so they could be replaced by someone who wants to prosecute providers. Though prosecutors can stem the enforcement of trigger laws somewhat, there’s only so much they can do now that Roe has been overturned.

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