At least nine states have recently enacted abortion laws that will adversely impact the health of anyone facing an unwanted or dangerous pregnancy. And several more states are considering these laws, despite the clear legal pronouncement 46 years ago that women have a fundamental right to privacy that protects their right to make health-care decisions — including whether to end a pregnancy.
In the face of laws that are not only unconstitutional but also endanger members of their community and may re-traumatize victims of crime, elected prosecutors have two options: They can courageously lead and make clear that they refuse to use their discretion to criminalize women and health-care providers, or they can sit back in silence and acquiesce in the erosion of fundamental rights of members of their community. We choose the former.
Whatever their personal views on abortion may be, prosecutors can readily understand that these recent laws are irresponsibly crafted. Many lack provisions to indicate who will be held criminally responsible, creating an atmosphere of unnecessary fear and confusion for those seeking vital medical care. For example, Georgia’s law, HB 481, opens the door to criminalizing anyone involved in performing or assisting with an abortion, those seeking an abortion and anyone involved in helping — from medical professionals to a person driving someone to the health center — and fails to explicitly prohibit criminalizing the women who make these medical choices.
These laws also fail to account for the needs and trauma of victims of rape, incest, human trafficking, domestic violence or child molestation. For example, Alabama, Missouri and Ohio explicitly do not have exceptions for victims of rape and incest, meaning those who become pregnant by these means will be forced to carry the fetus of their abuser. And Georgia’s law would allow for access to an abortion only if the victim of rape or incest first reports the crime to authorities — ignoring the reticence of victims and the re-traumatization that is often inherent in reporting.
Concerns such as these have led more than 40 elected prosecutors from across the country to add their names to a statement urging prosecutors to use their discretion and decline to criminalize health-care decisions that have been protected under settled Supreme Court law for nearly 50 years. As the statement notes, “prosecutors must be perceived by their communities as trustworthy, legitimate and fair — values that would be undermined by the enforcement of laws which harm and impose untenable choices on many in the community.”
Some may argue it is a prosecutor’s obligation to prosecute all laws and that only legislators are charged with making these “policy” decisions. We don’t see the role of prosecutors elected by their communities through this narrow lens. With thousands of laws on the books, elected prosecutors use their discretion every day in deciding how to wisely and justly allocate resources to promote enforcement of laws that will have the greatest effect on advancing public safety. To do so, they necessarily decline to prosecute certain laws — such as those that criminalize substance-use disorder or adultery — which do not serve the interests of justice.
In years past, our country has had a host of questionable laws on the books — including provisions prohibiting interracial marriage and homosexuality. Elected prosecutors may not in the past have been willing to stand tall and serve as the conscience of the community in refusing to use their discretion to criminalize these acts. But today, we are proud to refuse to remain silent in the face of troubling legislative decisions that harm members of our community and erode trust in our system of justice.
There are many ways prosecutors can use the rule of law to make communities safer and healthier — but trampling upon decades-old legal precedent to put women and doctors in jail for seeking or performing a legal medical procedure is simply not one of them. Prosecutors must use their voices and, more importantly, their discretion to ensure these laws do not infringe upon the fundamental rights of members of their communities.