Local Prosecutors Can't Protect Abortion Rights

[Celerity]

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

https://www.theatlantic.com/newsletters/archive/2022/07/local-prosecutors-cant-protect-abortion-rights/670529/

https://web.archive.org/web/20220715014812/https://www.theatlantic.com/newsletters/archive/2022/07/local-prosecutors-cant-protect-abortion-rights/670529/



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.”

snip

[Eliot Rosewater]

1. GOP wants the country to be strewn with dead Women, doctors, liberals, progressives,

Latinos, POC, Jewish people, Muslims.

period

[pwb]

2. Every Woman in these backward states should claim

they are seeking Abortion. Overwhelm the enforcement system . They would.

[Solly Mack]

3. K&R

[qazplm135]

4. I think what you will see in Texas and other anti abortion states

is simply authority to prosecute given to "state prosecutors" to circumvent local prosecutorial discretion.

Laudable what they are doing and they should do it, but unfortunately, there will be workarounds.