The state-by-state patchwork of abortion restrictions that a reversal of Roe v. Wade would render will be even more complicated by the approaches of local prosecutors and law enforcement officials charged with enforcing abortion bans.
Abortion rights advocates fear overzealous law enforcement officials will target crackdowns on the most vulnerable communities in states that prohibit abortions, while anti-abortion activists are plotting how to get around progressive prosecutors who are vowing not to enforce abortions offenses if Roe is overturned.
The 1973 ruling and successor court decisions guarantee a right to abortion nationwide up to the point of fetal viability, around 23 weeks into the pregnancy. A draft majority opinion disclosed by Politico on Monday suggested the conservative Supreme Court is headed toward undoing those protections, though its decision won’t be final until a formal ruling is handed down by the end of June.
In a post-Roe world, abortion stands to become a forefront issue not only in federal and state races, but the campaigns for the local offices that will be implementing the new legal landscape around the procedure.
“Prosecutors can make those kinds of policy determinations and then are potentially held accountable to voters, if voters are unhappy with the outcomes of that,” said Katie Glenn, the government affairs counsel for the anti-abortion group Americans United for Life. “Certainly politicians are people and they’re vote counters, and so I definitely think that there’s going to be an element of reading the room as far as what the local community wants.”
Even before the leaked draft signaled a Supreme Court on the cusp of overturning Roe, some state and local prosecutors were pledging not to enforce abortion crimes enacted if the precedent was overruled. Those promises have in part motivated the turn anti-abortion lawmakers have taken toward novel measures like a Texas six-week abortion ban that uses the threat of civil litigation to discourage providers from offering the procedure.
“I think there was an argument that getting rid of Roe would de-escalate conflict by letting everyone reach local solutions, and instead, you’re just seeing an intensification of the conflict as it becomes more and more local,” Mary Ziegler, a Florida State University College of Law professor who’s written a book examining US abortion law since Roe.
Academics who have studied the enforcement of abortion bans– either internationally, or in the US before the Roe v. Wade case was decided – say the wiillingness to make abortion offenses a priority will depend on who is helming prosecutorial positions and the political environment at the time.
Local law enforcement officials face limited resources, noted Santa Clara University School of Law professor Michelle Oberman, author of research exploring abortion bans abroad.
“Because they’re elected officials, [they’re also] sensitive to what they think their constituents want, and what they think their constituents will go for, meaning what would a jury actually convict,” Oberman told CNN.
Vows not to prosecute abortion crimes post-Roe
Because of the discretion local officials will have, abortion will become a key policy issue in those races, both sides of the issue predict.
“Right now, the average voter is probably thinking about their congressman or their state legislators when they think about pro-life or pro-choice and doing the research on those candidates,” said John Seago, the legislative director of Texas Right to Life. “In this next chapter of the pro-life fight, a lot of those decisions are going to be at the lower level.”
It will make a difference, he said, to “actually make sure that we’re abortion-free, and not just banned abortions in law but in practice … our elected officials are looking the other way.”
That prosecutorial discretion is already shaping up to be a flash point in races like the re-election of Democratic Michigan Attorney General Dana Nessel, whose state has a pre-Roe abortion ban on the books that could be enforced if the Roe precedent is overruled.
“My office will not be involved in any of these prosecutions,” she told reporters this week, while highlighting her Republican opponent’s pledge to enforce the law. Michigan’s 83 county prosecutors could still potentially bring cases under the ban, though seven of them also have vowed not to prosecute abortion offenses. (Democratic state officials have also brought a lawsuit to the state Supreme Court asking it to strike down the 1931 prohibition).
Dozens of state and local prosecutors signed statements in 2019 and 2020 vowing not to enforce certain laws criminalizing abortions, in an effort organized by the group, Fair and Just Prosecution. The organization also filed a friend-of-the-court brief on behalf of nearly 100 current or former prosecutors and law enforcement officials in the case now before the Supreme Court. It argued that criminalizing abortion will create distrust of law enforcements among the communities that those officials are trying to protect.
“If the law were to change … there would be a not simply chaos, but a lack of trust in the integrity of the rule of law,” Miriam Krinsky, a former federal prosecutor and the executive director of the group, told CNN.
Amanda Litman – who leads Run for Something, which recruits progressive candidates for down-ballot offices – said she anticipated the issue getting big play in local races of all types, including for prosecutorial positions, as those officials in some ways will have a “more direct” role in how abortion policy is carried out.
“Congressional campaigns will have to rely on the collective action,” she said, meaning that a Democratic congressional candidate can only protect abortion rights if she is elected with a legislative majority. “That is not true at the local level. You need just one.”
Anti-abortion activists have been eying ways to get around the fact that prosecutors who serve blue jurisdictions in red states could be loath enforce anti-abortion laws. Among the proposals being discussed in Texas, according to Seago, is to give the state attorney general the ability to bring prosecutions or to allow local district attorneys to prosecute abortion crimes in neighboring jurisdictions if the home prosecutor is refusing to do so.
His group is urging Texas and other states to expand the use of six-week ban’s enforcement mechanism – which allows individuals from anywhere to bring state court lawsuits against providers or others who facilitate an outlawed abortion – so that it would apply to all abortions if Roe is overturned.
“You really need more tools on the table to ensure that it’s actually complied with,” Seago said.