Anti-abortion rights protesters march in Dallas, Texas, in January 2022. Texas state lawmakers are pushing a bill that would empower the state attorney general or a private individual to ask a court to remove a district attorney who fails to prosecute abortion-related offenses.
Luis Santana/AP Photo
The moves have left local prosecutors chafing at what they see as encroachment on their executive branch powers, tactics that Warren called “ridiculous” and “undemocratic.”
“It’s a political war being waged against people for speaking their minds,” he said.
Nonpartisan legal groups view this trend as a threat to prosecutors’ ability to use their best judgment on which cases are worth pursuing and how to allocate their offices’ finite resources to best serve the community that elected them.
“The individual exercise of discretion is the foundation of our legal system. This is a huge overreach by the legislatures,” warned David LaBahn, president and CEO of the Association of Prosecuting Attorneys. “When we’re looking at a series of cases — and this is not hypothetical, it’s very real, because we’re dealing with backlogs in so many places right now — should they investigate a phone call from someone saying they think someone had an abortion, versus a documented homicide or case of child abuse? If you have limited resources — should you pour everything into the first one? Of course not! That’s why you have discretion.”
LaBahn noted the wave of bills also threatens the “jury standard” — the metric local prosecutors use to decide which cases they could reasonably expect to win at trial with a jury selected from their local community.
“And the standard is not ‘a jury in the most conservative county in Texas,'” he stressed. “It’s a jury in the place that elected you.”
Some district attorneys caught in this fight argue there aren’t any crimes for them to prosecute even if they wanted to do so, citing preliminary data showing that almost no doctor-administered abortions have taken place in their states since the bans took effect.
Others, however, say they wouldn’t take up a case even if there were violations of their state’s anti-abortion laws. More than 80 district attorneys from 29 states signed a pledge a month after Roe was overturned to “refrain from using limited criminal legal system resources to criminalize personal medical decisions.”
Miriam Krinsky, a former federal prosecutor who runs Fair and Just Prosecution, the group that wrote the pledge, said prosecutors have the right to make that call.
“They want to focus on serious and violent crimes and not spend time investigating and prosecuting people who are making a health care decision,” she said. “They don’t want to turn miscarriages into crime scenes.”
Yet GOP lawmakers and their anti-abortion allies, many of whom believe terminating a pregnancy is murder, said prosecutors are violating their oaths of office — and the separation of powers — by saying they either won’t prosecute or will deprioritize prosecuting entire categories of crimes, instead of evaluating each case on its merits.
Under the bill introduced by Texas Sen. Mayes Middleton, prosecutors could face removal if they “categorically or systematically” refuse to bring charges for certain offenses, including abortion and some property- and election-related crimes. Attorneys could also be penalized for “categorically or systematically” not seeking the death penalty for capital offenses.
“It’s up to our district attorneys to enforce all of our laws, whether they like them or not,” Middleton said. “If they have a policy of not prosecuting crimes of violence, including our laws against abortion, then it subjects them to removal from office … This bill classifies abortion as a crime of violence, taking a life.”
GOP lawmakers have said that DAs who are unhappy with their state’s laws should run for the Legislature instead of using their office as a check on lawmakers.
“I think we all probably need to sit down and watch ‘Schoolhouse Rock,'” said Freeman, the Indiana senator.
Anti-abortion groups have coalesced behind the bills that go after prosecutors, arguing that state bans are meaningless unless they’re backed by the threat of enforcement.
“You have to have a penalty to serve as a deterrent,” said Rebecca Parma, senior legislative associate for Texas Right to Life. “We see how the abortion industry is pivoting since Dobbs and we need to respond as a state to make sure abortion stays fully prohibited. We’re seeing groups illegally shipping abortion pills into our state — trafficking pills across the border. And we have the phenomenon of abortion ships right off our coast. We need to hold people accountable for illegally aiding and abetting.”
Parma added that anti-abortion groups believe it’s not enough to target pr
In Wisconsin, several local prosecutors are defending the state’s 1849 near-total abortion ban against a lawsuit filed by Democratic Attorney General Josh Kaul, arguing the state is infringing on their prosecutorial discretion.