The Prosecutors Not Planning to Enforce Post-Roe Abortion Laws

If the U.S. Supreme Court overturns Roe v. Wade in the coming weeks, abortion will almost immediately become illegal in 13 states, with another 13 expected to soon follow.

But in a handful of counties, even in states with strict abortion laws, local prosecutors are promising that if the landmark 1973 court decision is overturned, medical providers will not face criminal charges for performing abortions.

Several Democratic county prosecutors in states like Texas and Tennessee told Route Fifty that they will not enforce their states’ anti-abortion laws should they take effect. 

A leaked draft opinion from the U.S. Supreme Court, first reported by Politico earlier this month, suggests the court is poised to reverse Roe, which established a constitutional right to have an abortion.

It remains uncertain, and perhaps doubtful, medical providers will take too much comfort from the prosecutors’ promises. Performing an abortion under some pending state laws could mean risking punishments such as life in prison.

Still, people involved in the debate say that the positions that the prosecutors are staking out are important.

“It’s absolutely more than symbolic,” said Miriam Krinsky, executive director of Fair and Just Prosecution, an organization of progressive district attorneys. 

Krinsky, a former assistant U.S. attorney in California, predicted that some providers could likely still go ahead providing abortions in the counties where prosecutors have said they will not pursue charges.

The Democratic prosecutors argued in interviews that they have traditionally had discretion to decide which cases to pursue and that this calculus goes beyond just examining whether there’s enough evidence to justify charges.

“I absolutely have discretion,” District Attorney Joe Gonzales, of Bexar County, which is centered around San Antonio, told Route Fifty.

A so-called “trigger law” Texas lawmakers passed last year would take effect 30 days after Roe is overturned. It would make it a felony to perform most abortions, with penalties up to life in prison, explained University of Texas at Austin law professor Randall Erben. 

Women having the abortion would not face criminal charges under the Texas measure.

Gonzales said enforcing the law would undermine community safety by driving more women towards dangerous illegal abortions. He is one of four Texas county prosecutors who have pledged not to enforce the state’s abortion laws if Roe is dismantled.

“It was an easy decision because it makes the community safe,” Jose Garza, the district attorney for Travis County, Texas, where Austin is located, said in an interview about his own promise not to charge anyone under the state’s post-Roe abortion law.

Along with Gonzales and Garza, Mark Gonzalez, the district attorney for Nueces County around Corpus Christi, and ​​Brian Middleton, the district attorney for Fort Bend County outside of Houston, have also said that they do not plan to enforce the state statute.

Erben, the law professor, agreed that local prosecutors have the discretion they are claiming, saying recent state court decisions have held that only local prosecutors, not the state or officials from other counties, can decide whether to bring charges.

“Prosecutors can pursue or decline any criminal offense in Texas,” said Erben.

Outside of Texas, Orleans Parish District Attorney Jason Williams in New Orleans, also has no plans to prosecute people for abortions under a Louisiana ban that would take effect if Roe v. Wade falls, his office told Route Fifty. 

The state law there, passed in 2006, would “immediately” take effect if Roe is overturned. Penalties under that law for someone convicted of performing an abortion—except to prevent death of the mother or permanent impairment of a life-sustaining organ—include between one to 10 years of imprisonment.

At least one other prosecutor, Glenn Funk, district attorney for Davidson County, which includes Nashville, has also promised not to prosecute people for abortions, according to press reports and the website for his reelection campaign. Funk, who won the Democratic primary for his reelection last week did not return requests for comment. 

Under Tennessee’s 2019 law, which would take effect 30 days after the repeal of Roe v. Wade, performing an abortion would be a Class C felony, the equivalent of committing an aggravated assault, punishable by three to 15 years in jail.

Even with local prosecutors promising amnesty, Erben was skeptical that doctors would take the risk of providing abortions under strict post-Roe laws, knowing that a future district attorney could bring charges and that the legal penalties could be severe.

Garza, too, acknowledged that he’s still unsure whether any doctors would be willing to take the risk. “There’s massive amounts of instability,” the Travis County DA said.

Spokespeople for Planned Parenthood’s national office, as well as their chapters in Texas, Tennessee and Louisiana, did not respond when asked if they would continue performing abortions in the counties where prosecutors don’t plan to pursue charges. 

At the least, Gonzalez, of Nueces County, said he hoped his stance will make women feel safe that they won’t be arrested for murder if they go through with an abortion. 

In Starr County, Texas, Lizelle Herrera recently did face a murder charge after a hospital reported that she’d had a self-induced abortion. The case drew national attention. The county’s district attorney, Gocha Allen Ramirez, later dropped the case, saying Herrera never should have been arrested. But that was after she had spent three days in jail.

“Prosecutors are going to be the last line of defense for women to have the comfort that their own choices aren’t going to land them in the criminal justice system,” said Krinsky, with the progressive district attorney group. 

“Absent that local commitment, people are going to have to make the unbelievable or inhuman choice of proceeding with pregnancies that in some cases are the result of rape or incest,” she added. 

In 2020, 68 state and local prosecutors, in response to anti-abortion laws being passed around the country, pledged not to charge women or medical providers over abortions.

Three of these officials are from Mississippi, the state whose anti-abortion law is before the Supreme Court—Shameca Collins, of Amite County, Jody Owens of Hinds County and Daniella Shorter of Copiah County. None, however, returned messages left at their offices and it was unclear where they now stand.

The positions the prosecutors are taking could lead to a backlash from state lawmakers. 

Gonzales, of Bexar County, and Garza, the DA in the Austin area, said they’ve heard there may be legislative efforts in Texas to allow prosecutors in other counties to pursue abortion cases in counties where district attorneys will not enforce the state’s law. But Gonzales also said it would take a state constitutional amendment to allow prosecutors to charge people in other counties.

Spokespeople for Texas Gov. Greg Abbott, a Republican, did not return inquiries.

John Seago, legislative director for Texas Right To Life, told the Austin American-Statesman that ensuring “current and future abortion laws are being fully enforced” was among the group’s top priorities in the Legislature. The group, however, did not return inquiries.

Other pro-life groups in Texas and Tennessee also did not respond to requests for comment.

Erben said it is possible Texas state lawmakers could introduce bills allowing district attorneys to prosecute abortion cases in other counties. However, the state’s constitution bars Texas’ attorney general from filing charges.

In explaining his stance on abortion laws, Garza pointed to American Bar Association standards for prosecutors.

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances,” those guidelines say. 

Gonzalez, of Nueces County, meanwhile, suggested he has higher priorities than pursuing abortion cases. “We should be prioritizing the more serious crimes we have to face every day against women and children,” he said.

Williams, of Orleans Parish, was not available for comment but a spokesman pointed to an op-ed the district attorney wrote in Time magazine, in which he argued that not prosecuting people for abortions was a matter of racial justice.

He cited a 2020 study that found pregnancy-related deaths were 4.1 times more likely among Black women in Louisiana than women of other races. He attributed this to poverty and disparities in healthcare. At the same, he noted that in the wake of the crack epidemic many states enacted laws that can penalize women if their children die. 

And, according to an American Bar Association report he referenced, more than 1,200 women have been arrested around the country since the Roe ruling based on “their pregnancy outcomes—including miscarriages, stillbirths, abortions, or neonatal losses.” 

“When people of color and people with low income are denied access to basic forms of health care,” Williams wrote, “including prenatal and maternal care, as a consequence of prejudice, and when they’re arrested, charged and prosecuted for decisions that were made before, during or after pregnancy, it extends injustice in waves that have a ripple effect throughout families, neighborhoods and communities.”