Prosecutors Become Unlikely Line of Defense Against Abortion Bans

Sarah Lustbader

This article was published as part of the May 21 Daily Appeal.

A rally on May 19, 2019 in Montgomery, Alabama. (Photo by Julie Bennett/Getty Images)

Missouri passed a bill on Friday to ban abortions after a fetal heartbeat is detected, making it the eighth state this year to severely restrict abortion. Alabama’s new law bans abortions in nearly all cases. Georgia, Kentucky, Missouri, Mississippi and Ohio have passed “heartbeat bills,” which effectively prohibit abortions after approximately six weeks of pregnancy, when many women are not yet aware they are pregnant. In Alabama, doctors who perform abortions could face up to 99 years in prison, which is decades longer than the maximum penalty for second-degree rape.

These laws are seen by many as unjust, and people have taken to the streets in protest. Color of Change chose another tactic: The group circulated a petition calling on local prosecutors not to enforce these laws. “As a prosecutor, you have the power and responsibility to enact policies and infrastructure that would discourage police officers from making arrests,” the group wrote. “We are calling on you to take a proactive stand.”

Some prosecutors have already taken such stances. Salt Lake County Attorney Sim Gill said he will not enforce Utah’s measure banning abortions after 18 weeks. “I think that’s the only legal and ethical thing for me to do, which is not use the power of my office to violate the constitutional rights of my citizens when there is well-established precedent that says it is unconstitutional,” he said. “We cannot put people in jail for this.”

Georgia’s new statute prohibits abortion after six weeks, with 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,” according to the Washington Post. “Two prosecutors said they would not bring charges of any kind under the new law.” DeKalb County District Attorney Sherry Boston said, “As district attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns. As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one.”

Every day, prosecutors make enforcement decisions according to their discretion. It’s part of the job. But recently, as the horrors of mass incarceration have become better understood, prosecutors have begun to use their discretion to stop enforcing laws they consider unjust. In January, Marilyn Mosby, the Baltimore state’s attorney,announced that her office would no longer prosecute marijuana possession no matter the quantity. “She also said that she would act to vacate thousands of old convictions,” writes Daniel Nichanian for The Appeal: Political Report. “In a 14-page white paper, her office laid out her rationale, detailing the ‘crisis of disparate treatment of Black people for marijuana possession and other offenses without any seeming regard for the possible adverse public health effects resulting from such enforcement.’” Rachael Rollins was elected to be district attorney in Boston in part on a promise to decline to prosecute various low-level charges, such as trespassing, drug possession, and petty theft.

“The private beliefs of the prosecutor doesn’t matter,” Sam Gill, the Utah prosecutor, said. “Every prosecutor who is being asked to violate the constitutional rights of citizens … has the responsibility to say no.”

It is clear, however, that the private beliefs of prosecutors do matter. In defending her decision not to enforce the abortion ban, Boston referred to Roe v. Wade, but she also invoked her role “as a woman and mother.” In explaining her decision not to enforce marijuana possession, Mosby discussed the disparate treatment of Black people in the system. These are principled stances that do not derive directly from written laws or constitutions, but rather from morality.

In the context of a clearly unjust law, such as the Fugitive Slave Act––which, in the years leading up to the Civil War, required officials and residents of free states to help return escaped slaves to their masters––refusal to comply is celebrated as an unalloyed good. But when the law is more ambiguous, or when it actually advances equality and inclusion, such principled resistance takes a different tone, such as when Kentucky clerk Kim Davis refused to issue any marriage licenses to same-sex couples because of her personal, religious opposition to same-sex marriage.

State attorneys general, too, over the last decade have begun refusing to defend divisive laws, especially laws championed by opposition party actors. “Until 2008, nondefense was almost unheard of,” write Neal Devins and Saikrishna Prakash for the Los Angeles Times. “That year then-California Atty. Gen. Jerry Brown refused to defend Proposition 8, which banned same-sex marriage in the state. Since then, 16 other attorneys general have refused to defend state laws. Democrats refuse to defend gun rights legislation and anti-same-sex-marriage laws. Republicans refuse to defend campaign finance restrictions, gun control laws and protections for gays and lesbians.”

In a perfect world, prosecutors would put aside politics and instead listen to experts, who would tell them that enforcing draconian criminal laws is counterproductive. They would also listen to directly impacted families, who will tell them that this kind of enforcement is cruel. Enforcement decisions could begin there.

And there are other opportunities for moral standards to help shape which laws get enforced. Prosecutors who enforce unpopular laws too severely may lose their jobs if voters educate themselves. And if they do enforce the new abortion bans, juries will be empowered to nullify. As the Washington Post notes, “A century ago, when abortion was a crime, juries regularly refused to convict.”