How SCOTUS Gave Prosecutors Incredible Power Over Abortion Access
On June 24, 2022, the U.S. Supreme Court eliminated federal constitutional protection for abortion with the Dobbs v. Jackson decision and said that it was sending abortion back to state legislatures. But two years later, it is actually the state and local prosecutors who are on the frontlines of the fight for reproductive rights.
Prosecutors are playing a significantly outsized role in the protection of abortion access. Large swaths of the nation’s reproductive landscape rely on the singular views of individual state and local prosecutors. Especially in states where the legal landscape is unclear or changing, elected prosecutors effectively determine when and where abortion is accessible. In some jurisdictions, zealous enforcement of restrictive laws by local prosecutors means that there is little to no available abortion care even in the most dire of circumstances.
Take Texas, where Attorney General Ken Paxton has made clear his view that there should be virtually no exceptions to state abortion bans. In a widely watched case brought by a group of women who had been denied urgently needed abortions, the Texas Supreme Court ruled that the doctors lawfully could have provided abortions, but failed to acknowledge the crucial reason they didn’t: The doctors’ credible fear that Paxton, as well as local district attorneys, would prosecute them for exercising their medical judgment and performing an abortion.
Read more: America’s Second Year Post-Roe Will Be Even More Contentious
By contrast, prosecutors who are committed to affirming abortion rights, such as in Arizona, show that access can be maintained, even in the face of restrictive laws. There, the state’s supreme court ruled that a 19th-century criminal ban should go back into effect, but the state attorney general and other local prosecutors blunted the ruling’s impact. The court’s ruling has been delayed and the legislature has intervened, enabling abortion providers to continue their practice. A similar set of circumstances arose in the immediate aftermath of Dobbs in Michigan, where the quick action of state and local prosecutors prevented the reactivation of a criminal abortion ban.
Since Dobbs, nearly 100 prosecutors nationwide have publicly stated they will not use their offices’ resources to prosecute those who seek, provide, or support abortions. They believe their obligation to the health and safety of their communities demands protection of these fundamental rights.
By taking a stand, prosecutors defending the right to abortion are repeatedly targeted by anti-abortion state governors and legislators. In Florida, Gov. Ron DeSantis suspended Hillsborough County prosecutor Andrew Warren after he shortly after joined a public statement expressing his commitment to protecting reproductive access. Across the country, there have been dozens of actions and new laws aimed at pro-choice prosecutors. In a report Public Rights Project co-authored with the Local Solutions Support Center, we identified 53 attempts to restrict prosecutorial authority in 26 states, with 15 new measures enacted since the start of 2023 alone. Georgia created a new commission to oversee prosecutors and to remove them from office for their failure to prosecute particular crimes. Texas created a new process for individual residents to petition a court to unseat an elected prosecutor. And we know this is far from over; looking forward, these anti-democratic attacks against pro-choice prosecutors will increase in states where state leaders are hostile to abortion rights because they understand the crucial role prosecutors play in a post-Roe America.
Simultaneously, anti-abortion prosecutors are attempting to expand their authority and influence across state lines. Not satisfied with eliminating abortion care in their own states, these prosecutors seek to penalize individuals who travel out of state for care, organizations that fund or support such efforts, and providers who offer care to these patients. These efforts are likely to accelerate as tens of thousands of pregnant people travel out of state to receive abortion care.
Moreover, prosecutors have seen how the mere threat of enforcement can deter the provision of care. Given their significant influence, and the growing scrutiny to doggedly enforce abortion laws or face consequences, it is a near certainty that anti-abortion prosecutors will continue to find weaknesses in the system and exploit them, particularly when court intervention is unlikely.
Regardless of the outcome of the presidential election—which will have a profound impact on abortion because of, among other things, the importance of control of the FDA—anti-abortion forces are looking past state legislatures and toward local prosecutors to influence access nationwide, including in haven states, where abortion is protected. Creating confusion and fear that delays or eliminates care altogether is all part of their strategy.
The escalation of these trends in the abortion landscape indicates that prosecutors will remain an outsized force post-Dobbs for years to come. That is why we need to start treating prosecutors like the bellwether force they are for abortion rights.
For voters, look closely at your candidates for district attorney and attorney general, and question them about their positions on abortion. Ask your candidates for state legislature whether they will interfere with prosecutors who choose not to criminalize abortion patients and providers. For donors, invest in protecting pro-choice prosecutors both on the ballot and in the courtroom. And for advocates, sound the alarm about the dangers of prosecutors playing doctor when lives are on the line, and stand with those prosecutors who use their power to protect abortion.