Prosecutors Pledge Not to Enforce Criminal Abortion Laws If Roe Falls

Overturning Roe could drastically increase the number of people criminally prosecuted for abortion. This ominous reality has inspired prosecutors across the country to speak out.

Prosecutors Pledge Not to Enforce Criminal Abortion Laws If <i>Roe</i> Falls
Outside the Supreme Court during oral arguments for Whole Woman’s Health v. Hellerstedt in June 2016. (Wikimedia Commons)

With the appointment of Amy Coney Barrett to the Supreme Court, and an onslaught of cases designed to directly challenge Roe v. Wade heading to the Court for review, abortion rights are more precarious today than they have been since the Court decided Roe v. Wade 47 years ago.

Without Roe, abortion would probably become a crime in 22 states. Ten states, including Idaho and Utah this year, have passed so-called trigger laws, which would automatically ban all abortions if Roe were overturned. An additional 12 states are considered highly likely to pass new abortion bans if Roe were reversed.

Overturning Roe could drastically increase the number of people criminally prosecuted for abortion. This ominous reality has inspired prosecutors across the country to speak out.

In a joint statement last month, nearly 70 elected prosecutors declared their intent to refuse to enforce criminal abortion laws if Roe v. Wade is overturned. The statement was signed by 11 attorneys generals and 57 state and local prosecutors coming from 28 states, including many from more conservative parts of the country like Alabama, Mississippi, Georgia, Tennessee, Texas and Missouri.

“Legal precedent, as established by the highest court in the land, has held for nearly 50 years that women have a right to make decisions about their own medical care including, but not limited to, seeking an abortion. Enforcement of laws that criminalize healthcare decisions would shatter that precedent, impose untenable choices on victims and healthcare providers, and erode trust in the integrity of our justice system. …

“To fulfill our obligations as prosecutors and ministers of justice to preserve the integrity of the system and keep our communities safe and healthy, it is imperative that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws.”

The prosecutors note that many of the new laws are not clear about who they would hold responsible for abortion, which leaves open the potential for criminalizing doctors, nurses, anesthetists, health care providers, office receptionists, and even patients.


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The statement focuses in particular on survivors of child molestation and sexual assault, noting that many of the new laws impose burdensome reporting obligations in order for survivors to access legal abortion. The prosecutors note that not all victims are able to report their assaults to law enforcement because of the trauma they have experienced. They condemn these laws because they “essentially force victims to live with the choice of reporting and disclosing the details of their sexual assault, or risk being connected to their abuser for life.”

“The wise exercise of discretion suggests focusing prosecutorial resources on the child molester or rapist, and not on prosecuting the victim herself, or the healthcare professionals who provide that victim with needed care and treatment,” says the joint statement. 

“Keeping communities safe inherently requires promoting trust, which would be deeply eroded by the enforcement of these laws. To best promote public safety, prosecutors must be perceived by their communities as trustworthy, legitimate, and fair – values that would be undermined by the enforcement of laws which harm and force unnecessarily difficult and traumatizing decisions on many in our community.”

Some prosecutors, however, are already criminally prosecuting pregnant women. Last fall, prosecutors in California charged Chelsea Becker with murder after she gave birth to a stillborn son. Becker is one of hundreds of women who have been arrested and prosecuted nationwide after experiencing miscarriages or stillbirths on a range of charges, including fetal assault, child abuse and chemical endangerment.

Other prosecutors are stretching feticide laws or other generally applicable laws such as child neglect, practicing medicine on oneself, or possession of a dangerous substance in order to punish those who self-manage their abortions, such as the Idaho case of Jennie McCormick. Prosecutors disproportionately target low-income women using Medicaid, immigrant women and women of color with these kinds of charges.

If Roe were to be overturned and criminal abortion laws enacted around the country, more arrests, incarcerations and deportations would inevitably result.

Miriam Krinsky, executive director of Fair and Just Prosecution, which organized the statement, said:

“In this time of crisis—when so many in our community are grappling with the challenges of a global pandemic, economic downturn and tremendous uncertainty—elected prosecutors have the opportunity to lead and to offer peace of mind to women and healthcare professionals who might otherwise be placed in the untenable position of choosing between the exercise of personal healthcare choices and the threat of criminal prosecution.”

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About

Carrie N. Baker, J.D., Ph.D., is a Professor in the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the U.S. Youth Sex Trade: Gender, Race, and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015. Baker is the President of the Abortion Rights Fund of Western Massachusetts.