If — as seems likely — the Supreme Court overrules Roe v. Wade, at least 26 states are certain or likely to ban many or all abortions as soon as Roe is overturned. Of those states, 13 have trigger laws that would go into effect soon after the Court rules.
In Arkansas, for instance, the state’s trigger law would make it a felony punishable by up to 10 years in prison for anyone who attempts or performs an abortion except to save the life of a pregnant woman.
But a growing group of prosecutors is promising to use their charging discretion and not prosecute abortion-related conduct if these laws go into effect.
One of the groups organizing this effort is Fair and Just Prosecution, a nonprofit that supports elected prosecutors who are looking to reimagine the justice system. Executive Director Miriam Krinsky answered some questions about this critical work.
L.B. Eisen: Can you speak to the enormous power of prosecutorial discretion and how prosecutors decide what to focus their time and resources on?
Miriam Krinsky: Elected prosecutors are entrusted by their communities to make decisions every day about which cases to prosecute and how to allocate limited resources. As ministers of justice, these leaders have an obligation to use that immense prosecutorial discretion to pursue only those cases that serve the interests of justice and promote public safety and well-being.
While legislatures may opt to enact unjust and deeply disturbing laws (and have done so in the past in areas including outlawing same-sex and biracial marriage, adultery, biracial adoption, and consensual sexual activity), it is up to prosecutors to decide whether to pursue those cases. The fact that something can be prosecuted doesn’t mean it should be prosecuted — indeed, prosecutors often determine that pursuing certain cases would be unjust, inefficient, or not aligned with promoting public safety.
For example, many prosecutors across the country have made a decision not to use their limited resources to prosecute people for possession of small amounts of marijuana or other low-level offenses that don’t endanger public safety. Local prosecutors are elected to make those weighty decisions in the interest of all members of their community, and voters hold them accountable, as they should, for their actions.
Eisen: Why is it so important for prosecutors to pledge not to prosecute anyone for violating laws criminalizing abortion?
Krinsky: Prosecutors will inevitably be the last line of defense when it comes to abortion bans, and elected prosecutors who work in states that criminalize pregnancy outcomes and abortions will have a choice to make in the wake of any Supreme Court decision eviscerating the protections established in Roe v. Wade. They will be required to decide whether to use their discretion and limited resources to police and prosecute healthcare decisions and thereby criminalize patients, medical care providers, and others who facilitate these deeply personal choices.
In making these decisions, prosecutors should consider the impact of their actions on public health and safety. Significantly, among the laws that will likely arise if Roe is overruled are provisions that could potentially allow for felony prosecution of pregnant people and doctors, including for homicide; bans on abortions for survivors of incest and rape, or for people whose lives are at risk if forced to go forward with their pregnancy; and prosecution of individuals who support or assist others in securing an abortion.
We know that outlawing abortion will not end abortions. It will compromise the ability to obtain safe abortions, forcing the most marginalized among us — as well as medical providers — into impossible decisions. Enforcing abortion bans also strains limited resources that could instead be used to address serious violent crime. And criminalizing these decisions will erode trust in law enforcement, adversely impacting reporting by victims of abuse, rape, and incest.
Prosecutors who use their discretion and commit to not prosecuting abortion cases will inevitably help save lives, protect their communities, and promote justice.
Eisen: In September 2021, you worked with 100 current and former elected prosecutors and law enforcement leaders to file a friend-of-the-court brief urging the Supreme Court to leave the right to an abortion intact. Tell me about that effort.
Krinsky: This brief was filed in Dobbs v. Jackson Women’s Health Organization, the case in which the deeply concerning draft opinion was leaked. The bipartisan group of nearly 100 signers — which included current and former elected prosecutors, law enforcement leaders, and former state attorneys general, federal and state court judges, U.S. attorneys and Department of Justice officials — urged the Court to respect 50 years of precedent and protect the constitutional right to abortion established in Roe.
The signatories argued that upending this well-established precedent would erode public trust and safety, noting that if Roe is overturned, “the safety and well-being of entire communities will suffer.” This distinguished group of leaders came together to underscore the immense, adverse ramifications of doing exactly what the majority of the Court appears poised to do.
Eisen: After the draft Supreme Court opinion was leaked, the attorneys general of Michigan and Wisconsin announced they would not enforce abortion bans. Do you think more prosecutors across the country will take this position? And if not, how can voters and constituents persuade them to do so?
Krinsky: Nearly 70 elected prosecutors have already come together in a joint statement issued by Fair and Just Prosecution in October 2020 to pledge not to criminalize abortion, and there is every reason to believe that others will also rally around this commitment to not criminalize reproductive choice. In addition to further criminalizing poverty and the grave public safety and health concerns arising from enforcing abortion bans, prosecutors are also accountable to the people, and the vast majority of the American public supports the right to abortion. So, it is my hope and belief that more prosecutors will take a stand and be on the right side of history on this issue.
Individuals can help ensure that more prosecutors join in this showing of courageous leadership. We should probe and find out where our elected local prosecutors and attorneys general stand on this issue and, if they have pledged to not enforce abortion bans, thank them for doing the right thing. If they have not made that commitment, members of the community can reach out to make clear the importance of this issue, pay attention to where their elected leaders stand, and engage in the all-important democratic process by getting to the polls and voting for prosecutors who won’t pursue these cases.
Eisen: Are you working to get more prosecutors to join the movement to not prosecute abortion crimes?
Krinsky: Fair and Just Prosecution’s joint statement on this topic was issued before many in the reform-minded prosecutor movement were elected in 2020, so we know that there are more elected prosecutors likely to join the pledge to not criminalize abortion. Fair and Just Prosecution plans to redouble its efforts over the coming weeks to encourage more prosecutors nationwide to come together on this issue.
The scope of this assault on abortion rights is terrifying and dangerous, and while there are very few silver linings here, I do hope this issue inspires the courageous leadership that the moment demands.