A new wave of abortion bans has swept statehouses in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Ohio, and Utah. Many of these states have banned abortions at such an early stage of pregnancy—six to eight weeks—that many women won’t even know they’re pregnant yet. Because these laws are now being challenged in court, none of them have taken effect.
Some of the nation’s prosecutors are considering deliberate inaction. In mid-April, Michigan Attorney General Dana Nessel made a public pledge: Should Roe v. Wade be overturned and her state’s pre-1973 ban on abortion come back into effect, she would not prosecute a woman for having one or her doctor for providing one. Soon after, Salt Lake County District Attorney Sim Gill said he would refuse to enforce Utah’s new 18-week ban. After Georgia passed a ban on terminating a pregnancy as early as six weeks, four Atlanta-area DAs told the media that they too would refrain from enforcing the law. And in June, Fair and Just Prosecution (FJP) released a joint statement from 42 prosecutors—including Gill, Nessel, and 12 attorneys general—asserting that the bans are unconstitutional.
“Not all of us agree on a personal or moral level on the issue of abortion,” the statement reads. “What brings us together is our view that as prosecutors we should not and will not criminalize healthcare decisions such as these—and we believe it is our obligation as elected prosecutors charged with protecting the health and safety of all members of our community to make our views clear.” Many of the attorneys who signed the letter make up a growing cadre of progressive prosecutors who have instructed their offices not to pursue certain actions, from seeking charges for marijuana possession (in Baltimore) to fighting death row appeals (in Philadelphia). Of those prosecutors who signed on, only six are from states with new abortion bans. The existence of the bans, however, makes the message crucially important to send. In Durham, North Carolina, District Attorney Satana Deberry said she was making a public commitment because she considered resisting these bans a matter of constitutionality and conscience. It was also personal for her. “I have three black teenager daughters,” she said, “and they are moving into the phase of their lives in which their ability to choose will impact everything that will happen to them.”
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The prosecutors coming out against abortion bans nonetheless account for a minute proportion of the nation’s 2,300-odd prosecutor’s offices. But some attorneys and advocates say the value in their stand lies not just in the cases that don’t get to court but also in what the statements signal to constituents, legislators, and other attorneys. Many women in states with abortion bans are under the misperception that the bans are in effect.
“We hear from people in Kentucky, and I’ve talked to people from as far away as Alabama and Arkansas. They think abortion is banned and it is over,” said Meg Sasse Stern of the Kentucky Health Justice Network. That kind of misunderstanding has led Susan Frietsche, a senior staff attorney at the Women’s Law Project in Philadelphia, to argue that prosecutors’ avowals can be a public good. When challenging Pennsylvania’s abortion restrictions in the early 1990s, she fielded numerous calls asking if and how the abortion law changed. “Managing public perception about what the law was, I learned that it’s really hard to communicate the status of abortion laws. By prosecutors speaking out and saying that if the laws take effect, they won’t touch it, they may be doing a public health service.”
Women have long sought abortions when they were illegal. But throughout US history, the laws banning abortion tended not to be enforced against women who had them. Doctors also frequently went unpunished unless a person died from the procedure, notes historian Leslie Reagan in her book When Abortion Was a Crime, and when providers landed in court, community members often balked at prosecuting them.
With this new generation of abortion bans, those norms may not hold. Today abortion has become politicized in a way that it wasn’t in earlier eras, and the rise of mass incarceration means that punishing people who have or perform abortions is increasingly on the table. Alabama’s new ban, for instance, would punish those performing an abortion with up to 99 years in prison—far longer than recommended in the state’s 1852 statute, in which a conviction came with a $500 fine (a sizable amount at that time) or three to 12 months in jail. Under Ohio’s ban, a doctor could be imprisoned for up to a year, and under Mississippi’s ban, physicians could have their licenses revoked. (Like the bans in Ohio and Mississippi, Alabama’s 21st century ban doesn’t make exceptions for rape or incest.)
The FJP statement lists a wide variety of individuals who could be charged for helping people get abortions, including doctors, nurses, anesthetists, and office workers. And that doesn’t take into account abortion fund workers, underground community networks that refer women to or provide medication abortion, and perhaps even friends or loved ones who offer support.
So a promise to use prosecutorial discretion in a way that advances abortion rights is no substitute for making sure the law protects everyone. Jonathan Rapping, the founder of a nonprofit that trains public defenders, sees some value in nonenforcement—fewer people in the system—but doubts that it will benefit everyone equally. “You can have prosecutors who say, ‘I am not going to prosecute a doctor,’” he said, “but will absolutely spend [their] days throwing away the lives of poor people of color who make mistakes.”
ACLU senior staff attorney Alexa Kolbi-Molinas also worries about selective prosecution. “Some [prosecutors] haven’t said they wouldn’t actually prosecute physicians that provide abortions—in which case, that is effectively enforcing a ban on abortion,” she said. “People know that, politically, it doesn’t look good to say you’re going to prosecute the people seeking abortions. So that’s an easy political statement to make. Then you actually retain the right to enforce the ban against providers.”
Law professor Michele Bratcher Goodwin of the University of California at Irvine pointed out that prosecutorial discretion has historically swung in many directions, not all of them arcing toward justice. She noted that the power not to charge has often protected powerful interests and led to white impunity. For example, it helped known lynchers evade consequences, and many prosecutors opted to turn a blind eye to domestic violence cases, labeling them a private matter, until the 1960s and ’70s.
Farah Diaz-Tello, a senior counsel for the nonprofit reproductive justice lawyering network If/When/How, is concerned that some interpretations of specific bans could reinforce or expand prosecutors’ power. Take Georgia’s law: As Stone Mountain DA Sherry Boston (who pledged not to pursue abortion charges and who signed the prosecutors’ letter) described it in a May statement, “The question is—who will be held criminally responsible? The law, as written, is either silent, or ambiguous, at best, on this question…. Virtually anyone who either performs or assists in performing or arranging what is currently a legal medical procedure could potentially be charged under this statute.”
Diaz-Tello argued that this interpretation gives prosecutors power they don’t actually have. “There’s nothing in the Georgia law that authorizes [charging women for ending their pregnancies],” she said. She doubts that prosecutors—who have always had the power to decide whether to charge and tend to wield that discretion in favor of finding crime—are the right people to lead the way.
Amanda Reyes directs Alabama’s Yellowhammer Fund, which gives financial and logistical support to individuals seeking abortions in the state. She’s skeptical that prosecutorial vows not to enforce these bans will make a difference there. Only one of the 42 FJP signatories hails from Alabama: Jefferson County DA Danny Carr. Too often, she has seen prosecutors exercise their discretion by criminalizing health care experiences and behaviors, including drug use during pregnancy. “If we have learned something from the case of Marshae Jones last summer, it is that Alabamans cannot rely on a prosecutor’s or district attorney’s promise not to press charges against a pregnant person or any person who offers assistance,” said Reyes, referring to Jones’s indictment for losing her pregnancy after being shot in the stomach. (It took intense national pressure before a DA publicly announced that she would not be prosecuted.) “Lawyers throughout Alabama have made it their goal to find new and untried avenues to test out who can be held legally responsible for a bad pregnancy outcome,” Reyes added.
Similarly, Stern and her colleagues aren’t waiting for any Kentucky prosecutors to join the short list of those who won’t charge people for exercising their right to an abortion. They immediately kicked into gear to make sure women could get transportation to an Illinois facility. And if people have legal questions, they’re referred to an If/When/How hotline.
Stern has seen the real-time effects of a ban, albeit briefly. Kentucky’s Republican Governor Matt Bevin signed into law a ban on abortions after six weeks into pregnancy and another on abortions due to fetal race, gender, or disability. Both bans went into effect immediately, but the second one was blocked by a federal district court judge a day later. In those 24 hours, Stern estimated, 15 to 25 people with abortion appointments had to reschedule at the Louisville clinic later that week or travel to one four hours away in another state.
It’s unclear whether there will be any political fallout from these nonenforcement pledges in the next elections. Many of the FJP statement’s attorneys work in reliably liberal districts. Though some advocates suspect that these prosecutors may be positioning themselves for upcoming races, Clarise McCants, the criminal-justice campaign director with Color of Change, insisted the very fact that most of them are elected is an opportunity. Her organization runs a number of prosecutor accountability campaigns and has advocated for women in pregnancy-related criminal cases through public petitions, negotiations with district attorneys, and the power of its PAC.
If women face prosecution under these new restrictions, advocates will have to figure out how to fight back in court. “It may be beyond the training of some public defenders and other criminal defense lawyers to think to raise constitutional claims related to abortion,” said Frietsche of the Women’s Law Project. “We [may] need a whole new [legal] specialty.”