Some big-city district attorneys vow not to prosecute abortion, setting up legal clashes in red states

More than a third of district attorneys representing the 25 most populous counties in states that have banned or are about 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 statements could spark legal clashes between more liberal prosecutors in urban centers and attorneys general and lawmakers in red states, some of whom are already considering wresting control of abortion cases from local authorities.

Still, abortion experts and providers said promises from district attorneys alone are unlikely to prompt abortion clinics to reopen in states that have laws banning the procedure, as uncertainty remains. as to the impact of the Supreme Court’s decision overturning Roe v. Previous wade.

“A prosecutor really has a lot of discretion in deciding their priorities and their cases,” said Rachel Barkow, a New York University Law School professor who has studied the role of prosecutors in the justice system. criminal. “But they could be removed from office, or the states could give the power to prosecute someone else.”

While the prosecutors’ reassurances were helpful, abortion providers would likely be “concerned that it’s not concrete and permanent enough,” she added.

District attorneys speaking out – whose jurisdictions are home to more than 10 million people – say they have the power to prioritize other crimes instead of prosecuting drug providers. abortion.

“A prosecutor’s job is to protect public safety, and enforcement of this law will not only fail to promote or protect public safety, but will also result in more harm,” said José Garza, the prosecutor. of Travis County, Texas, which includes Austin, said in a statement.
Other district attorneys who have sworn 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’s ruling, as well as two other states where the abortion ban went into effect, Wisconsin and Alabama. Courts are reviewing some of these prohibitions.
Multiple district attorneys signed a joint statement released Friday pledging to “refrain from prosecuting those who seek, provide, or support abortions.”
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“They don’t all agree on the issue of abortion, but what they do agree on is that it’s not a smart, efficient or judicious use of the limited resources of the prosecution,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a criminal justice reform group that organized the statement. “They will become the last line of defense.”

Abortion opponents lambasted district attorneys who joined in the effort. James Bopp, Jr., the general counsel for the National Right to Life Committee, called their stance “undemocratic.” Her group has proposed a model law for lawmakers that would allow state attorneys general to take over abortion prosecutions when local prosecutors refuse to do so.

“They weren’t elected to decide what the law was,” Bopp said of the district attorneys. “If they don’t want to enforce these laws, we’ll get someone else to do it.”

Other district attorneys in abortion-banning states told CNN they would assess abortion lawsuits on a case-by-case basis.

A whistleblower holding an envelope.

“It’s a dangerous path for a prosecutor to make sweeping, hypothetical statements without charges or an actual case before them,” Amy Weirich, chief prosecutor for Shelby County, Tennessee, which includes Memphis, said in an email. . Tennessee’s trigger law banning abortion is expected to go into effect within the next two months, while a more limited ban on abortions after about six weeks of pregnancy went into effect Tuesday.

The impact of district attorneys refusing to prosecute will likely vary from state to state. In Texas, even if local district attorneys do not criminally charge abortion providers, state Attorney General Ken Paxton — who applauded the Supreme Court’s decision — can still file civil lawsuits against abortion providers. suppliers, potentially making them liable to huge fines.
That means state abortion clinics “would still have a lot of legal risk,” said University of Houston law professor Sandra Guerra Thompson. (A judge temporarily blocked Texas’ outright ban, allowing some clinics to reopen and resume abortions until about six weeks pregnant, but the reprieve is only expected to last a few weeks.)
Additionally, a Texas state representative said he plans to introduce a bill in the state’s legislative session next year to allow district attorneys in neighboring counties to sue if a local prosecutor refuses to prosecute an abortion case. Abortion opponents have also suggested that district attorneys who swear not to prosecute abortion could be removed from office under a state law targeting local officials who ‘neglect’ to ‘s ‘discharging a duty imposed on the officer by law’ – although Thompson said she thought that was unlikely.

Still, the uncertainty has encouraged some prosecutors to exercise more caution. Even as district attorneys in Texas’ other largest cities signed the letter pledging not to prosecute abortion, Harris County Attorney Kim Ogg, who represents Houston, was more circumspect. She denounced the High Court’s decision and joined an abortion rights protest, but said in a statement that she would assess abortion prosecutions on a case-by-case basis as she ‘does not want to not take the risk of being found guilty”. in dereliction of duty.”

A spokeswoman for the Planned Parenthood Federation of America said her group was not aware of any providers that would continue to offer abortions based solely on prosecutors’ statements. In Nashville, for example, as DA Glenn Funk vowed not to sue abortion providers and compared the Supreme Court’s abortion ruling to the pro-slavery Dred Scott case, the local chapter of Planned Parenthood said its statement would not let them ignore state restrictions.

“While we appreciate the Nashville DA’s support for our reproductive freedom,” said Savannah Bearden, spokesperson for Planned Parenthood of Tennessee and North Mississippi, the group plans to “continue to follow the law” to protect its patients. and its service providers. and ensure that his clinic can continue to provide other health care services.

Some providers also worry that statutes of limitations for state abortion laws will outlast district attorneys’ terms, leaving open the possibility of future prosecutors indicting cases that their predecessors refused to indict.

Pledges not to prosecute might have more impact in purple states where local district attorneys are backed by state officials. In Wisconsin, for example, district attorneys in the two largest cities, Milwaukee and Madison, have said they will not prosecute cases under the century-old abortion ban that went into effect last week. . Governor Tony Evers, a Democrat, also promised to grant clemency to any medical provider convicted of abortion, and state Attorney General Josh Kaul opposed the ban before the court.

“If voters want a district attorney who prosecutes women for seeking abortions or licensed providers who act in the best interests of their patients, they’ll have to elect someone else,” the county attorney said. Dane, Ismael Ozanne, representing Madison.

Meanwhile, abortion is likely to become a major issue in high-stakes elections for DA positions. In Maricopa County, Arizona, one of the most populous counties in the United States, Republican DA, who has said she will pursue some abortion cases, faces a special election later this year. The lone Democratic candidate in the race has said she will not pursue abortions.

Rachel Mitchell, the Maricopa DA, told local news outlets she would refuse to prosecute providers who perform abortions on victims of rape or incest, but would enforce other Arizona abortion laws. A ban on abortion after 15 weeks is set to go into effect in Arizona in September, and state officials are wondering if another pre-Roe ban is in effect.

Similar battle lines on abortion were drawn between candidates for district attorney in elections later this year in Tennessee.

“We’re going to see an election framed around this issue,” predicted Barkow, the NYU professor. “A lot of voters will be mobilized on both sides,” she said, and in what are usually low-turnout local races, “that could be the kind of thing that makes the difference.”

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