Democratic Prosecutors Pledge Not to Enforce GOP Abortion Restrictions

Republican-controlled legislatures have moved with haste to pass a wave of controversial legislation severely restricting access to abortion, steamrolling ahead despite emotional pleas from Democrats and protesting constituents on the steps of statehouses. But in a matter of weeks, as the Supreme Court appears poised to overturn Roe v. Wade, the focus will likely shift from those making the laws to those enforcing them – or choosing not to.

Some district attorneys and attorneys general have, since a leaked Supreme Court draft opinion surfaced, been making their stance on abortion restrictions known. And in some cases, they’re pledging not to enforce their states’ restrictive laws.

District attorneys in Georgia, Louisiana, Texas and Tennessee have vowed not to prosecute either people seeking abortions or those providing the procedure, while attorneys general in Michigan and Wisconsin have said the same. Meanwhile, the issue is becoming a central one for those seeking to be elected to those offices this fall.

Among those who have vocalized their commitment not to criminally prosecute women or providers within their jurisdictions for receiving or providing an abortion in the absence of Roe is Sherry Boston, the district attorney of Georgia’s DeKalb County, which includes parts of Atlanta. She says that criminalizing abortion won’t stop women from undergoing the procedure.

“It’s really just going to make our communities less safe,” Boston says. “And as the district attorney who took an oath to protect my community, I think it’s important for me to have policies in place that do just that for the community that I serve.”

In 2019, Georgia’s legislature passed a law that would ban abortion once a fetal heartbeat is detected, which can occur as early as six weeks of pregnancy. The law has been blocked by a federal judge for violating the Supreme Court precedent established in Roe v. Wade. But if the landmark ruling were overturned, it would likely take effect in the Peach State, perhaps in a matter of weeks.

Boston says at this time she wouldn’t prosecute those providing or seeking abortions beyond six weeks, citing the principle of prosecutorial discretion, which she says has been at the “heart of the role of prosecutors since we’ve had a criminal justice system.”

Discretion is used “all of the time,” Boston says, from diverting or dismissing cases based on the belief that it’s in the best interest of the community or the person charged with a crime to declining to prosecute certain offenses. Citing as an example adultery, which remains a crime in Georgia, Boston says she can’t imagine a single district attorney of the nearly 50 serving in the state that would bring an adultery case in a criminal court.

Prosecutors also decline to prosecute certain offenses in order to prioritize others, like deferring on non-violent offenses in order to address violent crime.

In Louisiana, the district attorney of Orleans Parish, where New Orleans resides, has cited such reasoning in explanation of why he would not prosecute abortion cases, writing days after the leaked Supreme Court draft opinion that his office is “focused on pursuing accountability and justice for the most serious, violent crimes committed against our people.”

“I cannot and will not shift the priority from tackling shootings, rapes and carjackings to investigating the choices women make with regard to their own bodies,” Orleans Parish District Attorney Jason Williams wrote in a tweet. That sentiment extends to abortion providers as well, his office added.

The comment came as Republican lawmakers in the state advanced a bill out of committee that would have made abortion homicide. In response, Williams pointed to a 2021 op-ed he authored in Time magazine on the criminalization of pregnancy, saying that he’s made his stance on the issue “abundantly clear.”

“When people of color and people with low income are denied access to basic forms of health care, including prenatal and maternal care, as a consequence of prejudice, and when they’re arrested, charged and prosecuted for decisions that were made before, during or after pregnancy, it extends injustice in waves that have a ripple effect throughout families, neighborhoods and communities,” Williams wrote in the op-ed.

In Texas, five district attorneys of the counties that house major cities like Austin, Corpus Christi, San Antonio and portions of Houston and Dallas have likewise pledged not to “prosecute or criminalize personal healthcare decisions.”

“In Travis Co., we know our community is safer when women and families can make personal healthcare and reproductive decisions without interference from the state,” Jose Garza, the district attorney of the county where Austin resides said following the draft leak.

The group of district attorneys initially pledged not to prosecute people seeking abortions after a Texas woman was charged with murder over a self-managed abortion. The charges were dropped, but the case spawned more questions over whether women could be criminalized for seeking abortions. Apart from the Texas law that has for more than eight months prohibited abortions using an unusual civil enforcement mechanism that deputizes private citizens to sue anyone who “aids or abets” someone with the procedure, Texas also has a trigger ban on the books that will take effect if Roe is overturned. That rule would fall on the criminal side, making it a felony to perform an abortion.

Glenn Funk, district attorney of Tennessee’s Davidson County, where Nashville is located, recently won the Democratic bid for re-election with a campaign platform that said he would not prosecute women or providers for “exercising their reproductive rights.”

“As long as I am the elected District Attorney for the 20th Judicial District I will never prosecute any woman who decides to have a medical procedure to terminate a pregnancy or any medical doctor who performs this procedure,” Funk’s website says.

The debate over prosecutorial discretion surrounding abortion cases has also been elevated to the level of state attorneys general.

In Michigan, before a state judge intervened to block a 1931 pre-Roe abortion ban that would have once again taken place without Roe and eviscerated access to the procedure in the state, Attorney General Dana Nessel said she would refuse to enforce the abortion ban, calling it a “draconian law.”

In Wisconsin, where a pre-Roe law would also revert the state back in the absence of the landmark case, the state’s attorney general Josh Kaul also said he would not enforce the rule.

Both attorneys general are up for re-election this fall.

The question is also being raised by others seeking attorney general posts. In Arizona, Democratic candidate for attorney general Kris Mayes said she wouldn’t enforce the state’s abortion ban if elected, while in Georgia, Jen Jordan, the Democratic nominee running to be Georgia’s attorney general said she would challenge the state’s existing abortion ban in court.

But even if prosecutors pledge not to enforce their state’s abortion restrictions, that may not be enough assurance for abortion providers to continue operating.

“There are many decision points beyond just whether it would be criminal for a provider or a doctor or to take into account and, let’s not forget, this is a regulated industry,” Boston says. “So these clinics and/or doctors have medical licenses, they have state licenses, they have insurance regulations, all of which they have to follow to continue and maintain practices. And so I think the idea that there might be providers that can risk all of those things to provide abortions, I think it’s really unlikely.”

But Boston notes that “we don’t know what’s going to happen.”

“There may be many courageous and brave doctors in the world that stand up to make sure that their patients get the care that they deserve,” Boston says. “And under those circumstances, it is not my intention to prosecute.”

In the aftermath of the leaked Supreme Court draft opinion, Fair and Just Prosecution, a group of progressive district attorneys, released a statement calling on leaders nationwide to “take a stand and pledge to not prosecute private healthcare decisions,” citing 68 prosecutors who in 2020 committed never to prosecute individuals for obtaining or providing abortions.

But Boston says the nature of prosecutorial discretion is that it is up to the individual and the community they serve.

“Every DA should absolutely take a position and I’m not here to tell any other DA what their position should be for their community,” Boston says. “I would ask him or her to take a look at what their community may demand and make the decision that’s in the best interest of that community. And I would hope that what would be in the best interest of that community is not to criminalize abortion, but it is their discretion, just as it is mine for the community for which I was elected to serve.”