They pledged not to prosecute abortions, but the reality is harsher. Ask Florida State’s Attorney Ousted DeSantis

When the U.S. Supreme Court overturned the constitutional right to abortion, some city and county prosecutors across the country pledged to refrain from enforcing new state-imposed bans on the procedure. Such promises can be difficult to keep.

Just ask Andrew Warren, the twice-elected state’s attorney in Hillsborough County, Florida, a state where abortion is now illegal after 15 weeks of pregnancy. In June, after the Supreme Court ruling, Warren joined a group of prosecutors and some state attorneys general in a written pledge not to pursue criminal charges in abortion cases. In August, he was unemployed.

Governor Ron DeSantis ousted Warren and named a replacement, saying Warren had neglected his duty and state prosecutors couldn’t choose which laws they agreed with. Warren sued DeSantis in federal court on Wednesday, claiming the governor violated his right to free speech and his “unfettered” discretion to decide whether and how to prosecute crimes in the county, which includes Tampa.

“That should outrage everybody because it’s an attack on democracy,” Warren said. “I exercise my discretion in a way that the voters elected me. I was elected because they shared my vision of criminal justice, because they trusted my judgement.

The Florida dispute shows how the legal fight against abortion has changed since the Supreme Court overturned its landmark Roe v. Wade and said states could regulate abortion. While states like California, New York and Illinois have said they will protect access to proceedings, more than a dozen, including Texas, Wisconsin and Louisiana, now have bans in place or temporarily suspended by judges, and more are expected, creating divisions among local officials.

According to 90 prosecutors across the country, including Warren, who signed a joint statement in June, personal medical decisions should not be criminalized. In explaining their commitment not to enforce the bans, prosecutors said they have long had wide latitude on charging decisions. Some have used that power in recent years to focus more on violent crime and less on things like undocumented immigrants or marijuana offenses.

“We refuse to use our office resources to criminalize reproductive health decisions and pledge to exercise our well-established discretion and refrain from prosecuting those who seek, provide or support abortions,” they said. the prosecutors.

But it’s unclear how effective those pledges may be in more than two dozen states where abortions are banned, severely restricted, or where bans are the subject of litigation. Of those who signed the statement, only 16 local prosecutors were in jurisdictions where abortion clinics faced new bans.

In New Orleans, the city council voted unanimously to deprioritize the investigation of abortion cases, and the Orleans Parish Attorney promised not to prosecute them. But all three Louisiana abortion clinics are leaving the state, including the Women’s Health Care Center in New Orleans, after the Louisiana Supreme Court allowed the state’s abortion ban to continue. .

The city council of Austin, Texas — a state where abortion is almost completely banned — passed a policy recommendation to deprioritize abortion-related cases and restrict the use of city funds for such investigations. However, it is a non-binding measure because Texas law prohibits the city council from directing how its employees handle criminal cases.

Risk of arrest

Part of the reason abortion providers may not be convinced they’ll avoid jail time is that prosecutors aren’t the only ones pursuing criminal charges.

“There will be police and sheriffs who may not be ideologically aligned with their prosecutor, and therefore abortion providers and even pregnant women and others associated with the process may find themselves harassed anyway, or arrested. anyway or monitored anyway,” said Somil Trivedi, lead counsel for the American Civil Liberties Union’s Criminal Law Reform Project.

Doctors can also lose their state medical license for performing an illegal abortion, and clinics can be shut down by the state medical board. And there is the risk that the statute of limitations will exceed the term of an elected prosecutor, who may be removed from office or even recalled and replaced by someone seeking to prosecute abortion cases.

In Michigan, the Supreme Court’s decision in Roe v. Wade revived a 1931 abortion ban, although a judge left it in abeyance on Friday while Governor Gretchen Whitmer, a Democrat, fights a court battle over whether it is valid under the US Constitution. ‘State. But prosecutors in the 13 counties with abortion clinics disagree on whether to enforce the law if it survives.

“I’m not going to charge people under this law,” said Oakland County District Attorney Karen McDonald. “I will not spend our precious resources to do so.”

In at least three of those 13 counties, prosecutors said they would enforce the ban. “I don’t believe it’s proper for me to simply ignore a law, any law, that was passed by the Michigan Legislature and signed by the Governor” in 1931, Chris Becker said in County of Kent.

Resume case

If a prosecutor refuses to prosecute an abortion case, some states may ask the attorney general to use a rarely invoked process called substitution.

“It allows another government official to guess or take the case to a district attorney,” former Maine attorney general James Tierney said in an interview.

Alabama, Florida, Georgia, Ohio and Tennessee are among the states where the attorney general or governor has the power to deputize, though most don’t have the resources or staff to handle prosecutions. individuals, Tierney said.

States that do not allow such intervention include Indiana, Louisiana, Mississippi, Missouri and Texas, but that could change. To ensure that every abortion crime is prosecuted, a Republican lawmaker in Texas has proposed allowing a district attorney to prosecute residents outside their jurisdiction.

Prosecutors who don’t want to charge abortion crimes had better be more discreet, said Kermit Roosevelt III, professor of constitutional law at the University of Pennsylvania Law School. “I think it’s much less likely to succeed on a high-profile issue that people care about and especially if it’s announced publicly,” he said.

In Tennessee, Davidson County District Attorney Glenn Funk has vowed not to enforce the state’s abortion ban, angering Republican Gov. Bill Lee.

“A District Attorney who willfully ignores applicable laws duly enacted by the Legislature is a serious matter that threatens our justice system and has serious consequences,” Lee tweeted. “The rule of law is the cornerstone of our legal system, and we all take an oath to uphold the law, not to choose which laws to follow based on politics or personal sentiment.”

Still, abortion advocates said they welcome any promise from prosecutors not to press charges.

“Regardless, it is important that every elected official at all levels of government make it clear that they stand with the vast majority of people in this country who believe in reproductive freedom,” Andrea said. Miller, president of the National Institute for Reproductive Health.

About Charles D. Goolsby

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