Barely 10 years after women finally secured the right to vote, at a point in the early 1930s when Herbert Hoover was president and Prohibition was the law of the land, an otherwise undistinguished session of the Michigan Legislature passed a sweeping ban on access to abortion. Then, in 1973, the US Supreme Court rendered the law meaningless with its Roe v. Wade decision. But in the wake of the ruling in Dobbs v. Jackson Women’s Health Organization, Michigan’s ghost law, which lingered on the books for more than 90 years, is haunting the present.
The law, which threatens abortion providers with felony manslaughter charges, has been embraced by Michigan Republicans, including their nominee for attorney general, Matthew DePerno.
DePerno says, “We will enforce the 1931 law unless it’s modified or changed by the state legislature when I’m elected.” He also promises to treat Plan B as a drug that’s “no different from fentanyl.” Just as prosecutors charge those who traffic illegally in the highly-addictive synthetic opioid drug, he would encourage those same prosecutors to go after anyone who violates a ban against safe and effective emergency contraception.
DePerno is one of a number of Republican nominees for powerful state and local law enforcement posts who propose to strictly enforce outdated bans on abortion, and to extend the crusade to other methods of controlling one’s fertility, in hopes of riding a Republican wave to victory in the 2022 midterm elections. It’s a threat that NARAL Pro-Choice America President Mini Timmaraju says should “put us all on high alert.”
Races for attorney general, and for local prosecutor positions, can get lost in a year when the fight for control of Congress is rightfully understood as an existential struggle over the future of American democracy. But it’s a big mistake to assume that Congress and governors are the only lines of defense for reproductive rights.
In fact, says Minnesota Attorney General Keith Ellison, who faces an anti-choice Republican rival in November, “state AGs are the frontline guardians of the right to choose, the right to access birth control, and the right to marry who you choose. If we allow Republicans to control these offices, they will do everything in their power to deprive Americans of these rights at the state level.”
That’s certainly true in states where Republican-controlled legislatures have been working with Republican governors to enact and enforce harsh restrictions on abortion rights. But it’s also true in more than a half dozen states where legislators never repealed pre-Roe bans on abortion. In several of these states, Democratic governors can block new restrictions. But it will fall to local prosecutors to decide whether to enforce laws that were enacted decades before the Roe decision. Attorneys general can recommend that prosecutors not bring charges in those cases—or, in case of anti-choice zealots like Michigan’s DePerno, pressure them to comply. DePerno has said that his office would “stand with prosecutors who want to enforce the law.”
Democratic Attorney General Dana Nessel, who has spoken openly about her own abortion, is unequivocal about the state’s antiquated abortion law. “I will not prosecute women, girls, or their doctors for seeking or providing abortion services,” she said in June after the court issued its Dobbs ruling. “Nor will my staff seek licensure discipline against medical professionals who safely perform these procedures. “When a Michigan judge issued an order blocking enforcement of the 1931 law, Nessel vowed that she would not appeal the ruling. At the same time, she has actively campaigned for a popular statewide ballot initiative that would establish a state constitutional right to reproductive freedom.
But if Nessel were to lose to DePerno, the Democratic incumbent warns that her Republican rival would use the office to challenge court rulings and ballot initiatives and, were decisions to go his way, “would have the authority to charge people in every county across Michigan.”
In neighboring Wisconsin, which does not allow citizen-sponsored referendums on constitutional amendments, the stakes are even higher. Although Democratic Governor Tony Evers is a staunch defender of abortion rights, the Wisconsin Supreme Court has a 4-3 majority of conservative judicial activists. So Attorney General Josh Kaul, an ardently pro-choice Democrat in a state where polls show overwhelming support for abortion rights, is the essential bulwark in a fight over enforcement of the state’s 1849 abortion ban. “I’m committed with the Wisconsin Department of Justice to not use any of our resources, either to investigate or prosecute anybody for violations of a 19th-century abortion ban,” says Kaul, who has urged local prosecutors to adopt a similar approach.
Some have done just that, including the prosecutor in the state’s largest county, John Chisholm. After the Dobbs decision, the Milwaukee County district attorney joined prosecutors from around the country in declaring, “As elected prosecutors, we have a responsibility to ensure that these limited resources are focused on efforts to prevent and address serious crimes, rather than enforcing abortion bans that divide our community, create untenable choices for patients and healthcare providers, and erode trust in the justice system.”
More than 80 local prosecutors, many of them from states where abortion bans are already on the books or are being added by Republican officials, signed the letter organized by the group Fair and Just Prosecution. Explained the signers:
As elected prosecutors, when we stand in court, we have the privilege and obligation to represent “the people.” All members of our communities are our clients—they elected us to represent them and we are bound to fight for them as we carry out our obligation to pursue justice. Our legislatures may decide to criminalize personal healthcare decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people. Criminalizing and prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that.
Many of the local prosecutors who signed the letter are from metropolitan areas where clinics that provide abortions are located. So their stances pose a direct challenge to efforts to ban abortion. That’s unsettled anti-choice politicians. In states such as Texas, Republican legislators have threatened to take action to preempt local prosecutors. That brings the fight back to contests for attorney general posts.
The role that a pro-choice attorney general can play in defending abortion rights is a prime focus of Texas Democrat Rochelle Garza in her race against scandal-plagued Texas Attorney General Ken Paxton. Garza, a former American Civil Liberties Union lawyer, won a high-profile 2017 suit against the Trump administration on behalf of a detained immigrant teenager who was seeking an abortion. And, in Arizona, where a judge ruled in September that a wide-ranging 1864 abortion ban must be enforced, Democrat Kris Mayes faces former Maricopa County prosecutor Hamadeh. In a TV ad, Mayes has spelled what would happen if she wins her election—or if she loses: “As attorney general, I will never prosecute a woman or a doctor for abortion care. Medical decisions should be made here [a medical facility], not in a doctor’s office! My opponent wants to lock up doctors and punish women. Not on my watch!”