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The Prosecutors Pledging Not to Enforce Abortion Bans

Following the leaked Supreme Court draft opinion, a growing group of prosecutors is pledging to use their discretion to not prosecute abortion cases.

Published: May 16, 2022
Abortion protest and police officer
Stefani Reynolds/Getty

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.