A coalition of more than 60 state prosecutors and attorneys general from across the country declared Wednesday that they would not enforce laws that criminalize abortion, even if the Supreme Court overturned the 1973 decision that legalized it nationwide.
The prosecutors’ statement invokes the power of prosecutorial discretion, which some prosecutors have used to reduce or eliminate prosecution of marijuana charges and other misdemeanors to reduce the disproportionate harm they can cause to nonviolent offenders.
At least 12 states have passed antiabortion laws since last year, calling for criminal charges against the women who have abortions, doctors who perform them or both, according to Fair and Just Prosecution, the group that organized the statement.
Among the prosecutors who signed Wednesday’s statement are Danny Carr, the district attorney of Jefferson County, Ala., whose state legislature passed a law imposing minimum prison sentences of 10 years on any doctor who performs an abortion under nearly every circumstance, and Glenn Funk, district attorney general in Nashville, whose state passed a “heartbeat” law imposing restrictions on abortions performed as early as six weeks. Federal courts have temporarily blocked the laws in Alabama and Tennessee, but antiabortion groups are appealing.
“It is imperative,” the prosecutors declared in their statement, “that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws.” Citing the 47 years of legal precedent established by Roe, the prosecutors said that “women have a right to make decisions about their own medical care including, but not limited to, seeking an abortion.”
The statement was signed by 11 attorneys general, including Xavier Becerra of California, Kwame Raoul of Illinois, Josh Shapiro of Pennsylvania and Karl A. Racine of D.C., all elected Democrats. Fifty-three city and county prosecutors also signed the statement, including Cyrus Vance Jr. of New York, Kim Foxx of Chicago, Chesa Boudin of San Francisco and Larry Krasner of Philadelphia.
In the D.C. area, the prosecutors in Prince George’s County in Maryland and in Fairfax, Arlington and Loudoun counties in Virginia, along with the city of Alexandria, all joined the statement. Prosecutors in Maryland’s Montgomery County and Virginia’s Prince William County did not.
One of the chief objections to the antiabortion laws that prosecutors cited is that many do not create exceptions for women seeking abortions because of child molestation, rape, incest, human trafficking or domestic violence. They said that criminalizing abortion will discourage such victims from reporting the crimes. “Laws that revictimize and retraumatize victims are unconscionable,” the prosecutors said, adding, “Keeping communities safe inherently requires promoting trust, which would be deeply eroded by the enforcement of these laws.”
Last year, Georgia passed a law giving district attorneys the discretion to bring charges against “anyone and everyone involved in performing and assisting with an abortion,” Fair and Just Prosecution said. Three Georgia prosecutors — Paul Howard of Fulton County, David Cooke of Macon County and Sherry Boston of DeKalb County — signed the declaration that they would not enforce such laws. A federal court in Georgia struck down the antiabortion law there in July, but the governor said the state would appeal.
“These laws not only fail to consider the needs of victims,” Boston said in a news release, “but they could actually harm public safety by spending prosecutorial resources on the victim or the professionals who provided them with needed and appropriate care, rather than on the perpetrators of child molestation, rape, incest, human trafficking or domestic violence.”
The prosecutors’ statement said they believe many of the new antiabortion laws are unconstitutional under Roe, but their decision not to prosecute abortions “would hold even if the protections of Roe v. Wade were to be eroded or overturned.”
Miriam Krinsky, executive director of Fair and Just Prosecution, said that “elected prosecutors have the opportunity to lead and to offer peace of mind to women and health-care professionals who might otherwise be placed in the untenable position of choosing between the exercise of personal health-care choices and the threat of criminal prosecution.”
The full statement and list of signers is here.