The Roe v. Wade reversal would put local prosecutors at the forefront of the abortion struggle

The Roe v. Wade reversal would put local prosecutors at the forefront of the abortion struggle

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Proponents of abortion rights fear that overzealous law enforcement officials will target the repression of the most vulnerable communities in states that ban abortions, while anti-abortion activists plan how to get around progressive prosecutors who promise not to enforce abortion offenses if Roe is overthrown .

The 1973 decision and subsequent court decisions guarantee a right to abortion throughout the country until fetal viability, about 23 weeks inside the pregnancy. A draft majority statement unveiled by Politico on Monday suggested the Conservative Supreme Court is on track to undo these protections, though its decision will not be final until a formal decision is made in late June.

In a post-Roe world, abortion stands to become a leading issue, not only in federal and state races, but the campaigns of the local offices to implement the new legal landscape around the procedure.

“Prosecutors can make those kinds of political decisions and then potentially be held accountable to voters if voters are unhappy with the results of it,” said Katie Glenn, government adviser to the anti-abortion group Americans United for Life. “Politicians are definitely people, and they are tellers, and so I certainly think there will be an element of reading space as far as the local community wants.”

Even before the leaked draft signaled a Supreme Court on the verge of overthrowing Roe, some state and local prosecutors promised not to enforce abortion crimes that were passed if the precedent was violated. These promises have in part motivated the turn anti-abortion lawmakers have taken toward new measures such as a six-week abortion ban in Texas that uses the threat of civil litigation to dissuade providers from offering the procedure.

Jackson Women's Health Organization, the last abortion clinic in Mississippi, in Jackson, Mississippi.
“I think there was an argument that getting rid of Roe would de-escalate the conflict by letting everyone reach local solutions, and instead one just sees an intensification of the conflict as it becomes more and more local, “says Mary Ziegler. Florida State University College of Law professor who has written a book examining U.S. abortion law since Roe.

Academics who have studied the enforcement of abortion bans – either internationally or in the United States before the Roe v. Wade case was settled – say the willingness to prioritize abortion crimes will depend on who leads the prosecution’s positions and the political environment at the time.

Local law enforcement officials face limited resources, noted Santa Clara University School of Law professor Michelle Oberman, author of research exploring abortion bans abroad.

“Because they are elected officials, [they’re also] sensitive to what they think their voters want and what they think their voters will go for, which means what a jury would actually judge, Oberman tells CNN.

Promises not to prosecute abortion crimes after Roe

Because of the discretion that local officials will have, abortion will become a central political issue in these races, both sides of the issue predict.

“Right now, the average voter is probably thinking of their congressman or their state legislators when they think of pro-life or pro-choice and examining those candidates,” said John Seago, Texas lawmaker Right to Life. “In this next chapter of the pro-life struggle, many of these decisions will be at the lower level.”

It will make a difference, he said, that “actually ensuring that we are abortion-free, and not just prohibited abortions in law, but in practice … our elected representatives look the other way.”

With an unprecedented leak, Roberts suddenly appears ineffective

This prosecution’s estimate is already shaping up to be a hotspot in races like the re-election of Democratic Michigan Attorney General Dana Nessel, whose state has a pre-Roe abortion ban that could be enforced if the Roe precedent is overturned.

“My office will not be involved in any of these lawsuits,” she told reporters this week, highlighting her Republican opponent’s pledge to enforce the law. Michigan’s 83 county prosecutors could still potentially bring cases under the ban, though seven of them have also vowed not to prosecute abortion crimes. (Democratic state officials have also filed a lawsuit with the state Supreme Court, asking it to lift the 1931 ban).
Dozens of state and local prosecutors signed declarations in 2019 and 2020 that promised not to enforce certain laws criminalizing abortions, in an effort organized by the Fair and Just Prosecution group. The organization has also filed a friend-of-court brief on behalf of nearly 100 current or former prosecutors and law enforcement officials in the case now before the Supreme Court. It argued that criminalizing abortion would create distrust of law enforcement among the communities that these officials are trying to protect.

“If the law were to change … there would be not just chaos, but a lack of confidence in the rule of law,” Miriam Krinsky, a former federal prosecutor and the group’s executive director, told CNN.

Amanda Litman – who runs Run for Something, which recruits progressive candidates for offices with ballot papers – said she expected the issue to be of major importance in local races of all types, including for prosecutors, as these officials in some ways want a “more direct” role in the implementation of abortion policy.

“Congressional campaigns will have to rely on collective action,” she said, meaning a Democratic congressional candidate can only protect abortion rights if she is elected by a legislative majority. “That’s not true at the local level. You just have to have one.”

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Anti-abortion activists have been looking for ways to circumvent the fact that prosecutors serving blue jurisdictions in red states may be reluctant to enforce anti-abortion laws. Among the proposals being discussed in Texas, according to Seago, is to allow the attorney general to prosecute or allow local district attorneys to prosecute abortion crimes in adjacent jurisdictions if the home prosecutor refuses to do so.

His group calls on Texas and other states to extend the use of the six-week ban enforcement mechanism – which allows individuals from anywhere to sue providers or others who facilitate an illegal abortion – so it will apply to all abortions. if Roe is overturned.

“You really need more tools on the table to make sure it’s actually complied with,” Seago said.

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