Prosecutors should apply similar discretion, Gill argues, and refuse to bring charges under a wave of new abortion restrictions that plainly contradict Roe v. Wade, the Supreme Court’s 1973 verdict that a woman has a constitutional right to choose whether to bear a child.
“We do this all the time, deciding that we have an ethical duty not to prosecute a case because it would be in violation of a constitutional protection afforded to citizens,” Gill, a Democrat, said in an interview with The Washington Post. “What’s new here is that this is an area, abortion, that we typically don’t find ourselves in, because the procedure has not been criminalized like this in recent history.”
Now that the question has been decisively transformed into one of criminal law — in his state and others that have banned abortion weeks before the viability threshold set forth in Roe — it’s up to prosecutors to “stand up for institutional integrity in these charged times,” Gill said.
“We cannot put people in jail for this,” he maintained.
A similar position has been announced by several district attorneys in Georgia, the site of one of the most searing abortion debates. Over the weekend, the Republican governor, Brian Kemp, scorned calls to boycott the state by “C-list celebrities,” according to the Atlanta Journal-Constitution.
The defiance of district attorneys suggests that the resistance to rolling back abortion rights goes beyond mass demonstrations and the cultural clout of Hollywood stars. As elected officials in the states in question, these prosecutors don’t serve at the will of the governor and can’t be summarily dismissed for refusing to enforce state law.
The dilemma facing law enforcement brings a debate about constitutional strategy and interpretation down to the level of charging decisions, shedding light on how individuals may actually experience the new laws — advanced in more than a half-dozen states in the South, Midwest and West — if they survive an onslaught of lawsuits.
The role of prosecutors is paramount. In 2015, a district attorney in Georgia brought murder charges against a 23-year-old for taking a pill that induced an abortion while she was in the second trimester. The charges were ultimately dropped.
Rather than stepping up penalties for the procedure, some members of law enforcement have been moved by the legislative blitz to renounce prosecution altogether. The readiness of prosecutors to thwart efforts to curtail constitutional protections for abortion was made clear in a vow last month from Michigan’s attorney general. Dana Nessel, a Democrat, said her state would not prosecute women or doctors even if Roe were to be overturned, as she predicted it would be, in light of the installation of Justice Brett M. Kavanaugh on the Supreme Court, cementing a conservative majority.
Georgia is among the states where lawmakers set out to test Supreme Court precedent with “fetal heartbeat” bills. Georgia’s new statute prohibits abortion after six weeks, often before a woman knows she is pregnant. It includes a longer time frame in cases of rape and incest.
But district attorneys in the state’s four most populous counties — all in or around the Atlanta area — have pledged not to prosecute women under the statute, which is ambiguous about the criminal liability of those who undergo the procedure. Two prosecutors said they would not bring charges of any kind under the new law, slated to take effect in 2020.
Alabama’s measure more clearly exempts women, while enacting a near-total ban on the procedure and making it possible to jail doctors who perform abortions for up to 99 years. Women will not be prosecuted under Missouri’s law, which bans abortions after eight weeks and includes no exceptions for rape and incest.
“As District Attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns,” DeKalb County District Attorney Sherry Boston said in a statement Monday. “As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one in Georgia, Alabama, and other states.”
In Fulton County, which includes Atlanta, the district attorney, Paul Howard, “has no intention of ever prosecuting a woman under this new law,” a spokesman told an NBC affiliate in Atlanta. He said the prosecutor’s office would not bring charges against medical providers, either.
District attorneys in Cobb and Gwinnett Counties, meanwhile, said they understood the law to shield women from liability.
New rules that Gill gained authority to enforce in Utah are not as strict as those in Alabama, Georgia and other states. Still, the move by the Republican majority in Salt Lake City to ban the procedure after 18 weeks is the subject of a court challenge.
Gill, elected in 2010 as chief prosecutor in the county that hosts the state’s only two abortion clinics, obtained an order from a federal judge last week affirming that he is not obliged to enforce the ban while that contest unfolds.
“The private beliefs of the prosecutor doesn’t matter,” he said. “Every prosecutor who is being asked to violate the constitutional rights of citizens and use the power and authority of their office to engage in unconstitutional behavior has the responsibility to say no, at least until the constitutional ground is clearly redefined.”
In casting doubt on the constitutionality of the Utah statute, Gill pointed not only to Roe but also to a 1997 judgment from the 10th Circuit Court of Appeals, which includes Utah, that invalidated a measure that was less restrictive than the legislature’s new directive. If that court were to reverse itself — and certainly if the Supreme Court were to weigh in — he would have to revise his position.
“Right now, an 18-week ban is facially unconstitutional,” he said.
But Susan R. Klein, a professor of criminal law and procedure at the University of Texas at Austin, said the legal landscape is more complicated. Because of how swiftly political transformation has shifted the makeup of the nation’s top court, it’s difficult to say what is settled law, she said.
“You’re not supposed to prosecute things you believe are unconstitutional,” said Klein, who personally believes in abortion rights. “But I would say that given the current court, all of these anti-choice laws are at least arguably constitutional, and, in that case, somebody has to do it.”
Even though these district attorneys are elected, rather than appointed, the legal scholar said the state would be within its authority to sidestep them. Officials could appoint a special prosecutor or give cases to a district attorney in a neighboring county, she said.
Klein said officials in Utah or Georgia could do the same.
“They won’t stand by while the law goes unenforced,” she said. “It’s a statewide law. One elected district attorney can’t say, ‘No, I don’t think so.’”
Such a refusal is precisely how Gill believes district attorneys are required to respond.
He knows what his critics are saying about him: that he has overstepped in seeking to undo the will of lawmakers, who have been limiting abortion rights since the Supreme Court, in its 1992 Planned Parenthood v. Casey decision, gave new grounds for states to regulate the procedure.
Gill sees matters differently.
“In a participatory democracy, we have our legislators who express what the law ought to be, but legislative expressions don’t happen in a vacuum,” he said. “They happen in a constitutional framework. And I won’t use the authority of my office to enforce a law that is constitutionally suspect as it stands right now.”
Ultimately, if prosecutions do proceed, the fate of defendants would rest with juries. A century ago, when abortion was a crime, juries regularly refused to convict.