The Power of Discretion: Prosecutors Refusing to Enforce Abortion Criminalization
On June 24, 2022, the U.S. Supreme Court overturned Roe v Wade, the landmark 1973 decision which extended the protection of individual privacy to include the right to abortion. Eleven states have already banned abortion; others are expected to ban abortion, instituting laws which allow criminal charges against individuals seeking abortions, those who administer or facilitate abortion services, as well as reproductive care providers.
In highly conservative states, bans or limitations on abortion went into effect immediately as a result of trigger laws which were established in thirteen states, while the decision delayed implications for other states. Enforcement of laws criminalizing abortion depends largely on prosecuters’ insistence exaction of these laws. Sam McCann, Senior Writer for The Vera Institute of Justice, recently published an article detailing the refusal of prosecutors in Dekalb County of Georgia Cook County of Illinois, and Travis County of Texas to enforce abortion criminalization laws which target their communities.
Each prosecutor refusing to enforce abortion serve counties which encompass major metropolitan areas: Atlanta, Chicago, and Austin. These urban centers are markedly more democratic than surrounding rural areas.
Prosecutors maintain significant jurisdiction over their decisions. McCann writes: “Most prosecutors are elected directly by the jurisdictions they serve and have an enormous amount of discretion when it comes to what offenses they charge people for and what sentences they pursue. And across the country, electorates support legal abortion by an overwhelming margin—even in traditionally conservative jurisdictions.”
It is not uncommon for prosecutors to refuse to prosecute against those already disproportionately targeted by the criminal legal system. Almost immediately following the Dobbs v. Jackson ruling, which overturned Roe v. Wade, 84 prosecutors (made up primarily of District Attorneys) from states across the country published a joint statement of their refusal to press charges against those seeking abortion care and those facilitating abortion services. In their statement they describe the troubling implications of the Supreme Court decision, stating that “Abortion bans will also disproportionately harm victims of sexual abuse, rape, incest, human trafficking, and domestic violence.” They contend, “Laws that revictimize and retraumatize victims go against our obligation as prosecutors to protect and seek justice on behalf of all members of our community, including those who are often the most vulnerable and least empowered.”
Abortion bans disproportionately harm women of color: in the United States, 62 percent of those seeking abortion services are people of color. Sherry Boston, a democratic District Attorney in Dekalb County, Georgia, cites this as one of the primary reasons she will refuse to prosecute abortion-seekers and abortion-facilitators. Dekalb County is 55 percent Black, and Boston, herself a Black woman, is cognizant of the way in which her community is targeted by abortion criminalization. Boston says she will use her discretion to decline to prosecute cases. She sees her duty as not complying blindly with the law, but to work in the interest of her community. She believes that “Criminalizing abortion undermines public safety and public trust. Further, it threatens the lives, health, and well-being of marginalized individuals whose access to safe abortion procedures will be restricted greater than others. It is my job as DA to make sure that the laws I prosecute are enforced in a fair and equitable manner without inflicting unnecessary public harm.”
Other prosecutors refusing to enforce abortion criminalization cite similar reasons to Boston, contending that abortion is a public safety issue, and those who will suffer the most from criminalization laws will be majority female, majority working class, and majority people of color.
There looms the threat that conservative lawmakers, who are adamantly in favor of abortion criminalization, will “implement oversight commissions designed to force prosecutions under abortion criminalization laws, or the attorney general may gain the power to prosecute alleged crimes that are currently the sole jurisdiction of the local prosecutor.”
The select prosecutors refusing to prosecute abortions represent a small haven amidst the abortion criminalization prosecution that dominates non-metropolitan areas, and which a vast majority of prosecutors will enforce.
Jolie Rolnick is a senior at Brown University, concentrating in Political Science. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at jolie_rolnick@brown.edu