Local Prosecutors Can’t Protect Abortion Rights

Some district attorneys in conservative states have promised not to bring charges post-Dobbs.

Abortion-rights protestors holding signs like "Abortion on demand & without apology"
Abortion-rights protestors in Washington, D.C. in June (Samuel Corum / AFP / Getty)

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In the aftermath of the Supreme Court overturning Roe v. Wade, some prosecutors say they simply won’t enforce abortion laws. It’s an audacious gesture—that probably won’t make much difference.

But first, here are three new stories from The Atlantic.


National Politics, Local Battles

The Supreme Court’s decision in Dobbs v. Jackson, overturning the decades-old right to abortion, offers an unusually broad glimpse into the vagaries of the American system of federalism. The federal government, in the form of the Court, has ruled that abortion should be a matter for states. A different branch of the federal government, the Biden administration, has sought to preempt state laws against abortion, at least in cases that require emergency care.

Meanwhile, at the local level, a few prosecutors in states with abortion bans have announced that they will not bring charges under those laws, as reports from The Washington Post, Axios, and other outlets have noted. I have found this fascinating and surprising: Prosecutors don’t often publicly pledge not to enforce state laws. Can they do it? And will it actually work to protect abortion rights?

The answers are yes and probably not, respectively. The legal system is built on discretion, which is why you typically won’t get ticketed for driving 57 in a 55 zone. In some cases, prosecutors may decide a case is unlikely to succeed, as then–FBI Director James Comey explained when he announced that he wouldn’t seek charges against Hillary Clinton for mishandling classified information.

“This is just a more contentious example of a more normal phenomenon,” George Fisher, a Stanford law professor and former prosecutor, told me. “Prosecutors can and do exercise discretion over the cases they bring all the time. They have to: It’s simply impossible to prosecute every crime that’s committed in one’s jurisdiction.”

Though that discretion is usually used in unremarkable ways rather than on controversial cultural issues, Fisher pointed out that many district attorneys declined to bring sodomy cases, despite laws on the books, in the years before the Supreme Court struck down such laws in 2003’s Lawrence v. Texas.

Normally, district attorneys simply exercise their discretion; they don’t talk about it. But in most parts of the country, they’re elected officials, which means that the people who can keep them in office or toss them out are constituents who may feel very strongly about Dobbs.

“What’s interesting about abortion is there are incentives for prosecutors to be very vocal about their non-enforcement decisions right now,” says Carissa Byrne Hessick, a law professor at the University of North Carolina at Chapel Hill. That’s why many of the district attorneys who have made announcements represent liberal cities and counties in conservative states: The state government may be hostile to abortion, but the people who vote for the DA are not. Examples include Orleans Parish (New Orleans), Louisiana; DeKalb County (Atlanta), Georgia; and Davidson County (Nashville), Tennessee. The city council in Austin, Texas, is seeking to decriminalize abortion there.

This is really just another front in an ongoing war between blue cities and red states, mostly in the South, over preemption, a conflict I wrote about in the magazine a few years ago. Progressive cities have tried to pass gun control or ban plastic bags or establish bike lanes, and state legislatures have tried to stop them. Because many states elsewhere in the country are also banning abortion, these battles will spread, contributing to what the journalist Will Wilkinson has termed the “Southernification” of the U.S., and inflaming existing urban-rural tensions.

“It’s not out of line for a local prosecutor to say, ‘This is the law of the state, but my electorate in this county takes a different view of what the law should be, and I am answering directly to them,’” Fisher told me.

But will this actually do much to ensure access to abortion in their counties? Experts I spoke with are dubious. State officials don’t have much power to punish local prosecutors, remove them from office, or try to force them to bring cases, but they can frequently just go around them. In some states, the government can hand cases to another prosecutor. (Several years ago, for example, a prosecutor in Orlando, Florida, announced that she wouldn’t seek the death penalty in any case. The governor responded by reassigning death-penalty-eligible cases to another prosecutor.)

State attorneys general may also have the power to bring cases themselves. Because in most (though by no means all) cases, anti-abortion campaigners favor prosecuting abortion providers rather than women who obtain abortions, this is unlikely to result in a massive work burden for another prosecutor: It’s relatively easy to go after a clinic here or there. Or state legislators could establish a right for individuals to bring civil suits against providers, which wouldn’t yield criminal convictions but could strangle providers under financial penalties. Texas used just such a private-action provision when it passed an abortion ban last year, as a way of avoiding a court injunction, but the same structure would work where prosecutors decline to bring cases.

This means that district attorneys’ pledges not to prosecute abortions are probably more symbolic than meaningful. Whether you see this as cynical grandstanding or an admirable stand for conscience and local control probably depends a lot on how you feel about abortion in the first place.

Related:


Today’s News
  1. During President Joe Biden’s trip to Israel, Yair Lapid—currently serving as the country’s caretaker prime minister—urged Biden to go further to stop Iran from developing a nuclear program.
  2. More than 20 people were killed in a Russian strike on an office building in the central Ukrainian city of Vinnytsia. It’s the latest in a series of Russian attacks on civilian targets.
  3. Italian Prime Minister Mario Draghi tendered his resignation after one party in his ruling coalition refused to participate in a confidence vote, but Italy’s president refused to accept the resignation.

Follow up: In May, The Atlantic published a story about the trial of an ex-Iranian official in Sweden. Today, the court sentenced him to life in prison for facilitating the mass murder of political prisoners.


Dispatches

Evening Read
A collage of the Uvalde victims, with silhouettes of police officers in the foreground
(AP; Getty; The Atlantic)

Texas’s Season in Hell

By Elizabeth Bruenig

The entire country seems to be swept up in the smothering heat of a long, blinding, burning Texas summer. It isn’t so much the climate—though it is that, too, and I have spent hours half-asleep reflecting on the fact that one day, should the slow creep of equatorial heat continue, everyone will eventually index the world to the same catalog of images I did growing up: dead earthworms baking on the sidewalk, melted asphalt clinging to rubber-soled sneakers, caution tape draped over schoolyard playgrounds with signs warning of second-degree burns.

Read the full article.

More From The Atlantic


Culture Break
red and black squares in a grid with black and white photos
(Getty; The Atlantic)

Read. Thank You for Your Servitude, the Atlantic writer Mark Leibovich’s new book about the Trump years, began with an unusual premise: He was bored with Trump. So he decided to write about the people who surrounded the president instead.

Watch. In Certain Women, a 2016 movie tracing the stories of several women in Montana, the naturalistic style makes every small moment feel monumental. (It’s streaming on AMC+ and available to rent on multiple other platforms.)

And check out our critic’s full list of 25 underrated films that will save your summer.

Play our daily crossword.


P.S.

This week, The Atlantic celebrated the launch of our story archive, comprising 165 years of journalism. (If you didn’t see editor in chief Jeffrey Goldberg’s introduction, let me commend it to you.) Jump in nearly anywhere and you can find something fascinating, from Frederick Douglass’s clear-eyed case for Reconstruction to Mark Twain’s avant-garde 1878 writing on the telephone. My newest find is a more recent piece by William Langewiesche, a longtime national correspondent here, on the 1996 ValuJet crash in the Everglades. Langewiesche is a pilot, and his forte is reconstructing airplane disasters with white-knuckle narrative and calm demystification of technical issues. I’m not an especially nervous flier, but his work has always been strangely reassuring to me, because he manages to explain failures so clearly and show how much has to go wrong for a plane to come down. This article is less comforting—it concludes that occasional accidents are simply inevitable—but no less compelling or timely.

— David

Isabel Fattal contributed to this newsletter.