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Officials in Several States Say They Won’t Enforce Abortion Restrictions

But governors promising clemency and prosecutors vowing non-prosecution won’t keep abortion providers open in states with bans.
July 1, 2022
Officials in Several States Say They Won’t Enforce Abortion Restrictions
An ultrasound machine sits next to an exam table in an examination room at Whole Woman's Health of South Bend on June 19, 2019 in South Bend, Indiana. (Photo by Scott Olson/Getty Images)

The day after the U.S. Supreme Court overturned Roe v. Wade, Wisconsin Gov. Tony Evers made a public pledge to cut a break to anyone convicted of violating the state’s 1849 law banning abortion.

“I will provide clemency to any physician that is charged under that law,” Evers said during a rally preceding the state Democratic Party convention in La Crosse. During his convention speech, he said: “I don’t think that a law that was written before the Civil War, or before women secured the right to vote, should be used to dictate these intimate decisions on reproductive health.”

Wisconsin’s Democratic attorney general, Josh Kaul, has also said he will not use the resources of his office to prosecute abortion providers. So have the district attorneys for the state’s two largest counties, Milwaukee and Dane.

These statements naturally elicit a question: Is there any talk about using these pledges of protection to continue to offer abortion services?

“The quick answer to your question is no,” writes Lisa Boyce, a spokesperson for Planned Parenthood of Wisconsin, in an email. She continues:

We appreciate the Governor’s support and commend AG Kaul’s stance on access to safe and legal abortion in WI. Unfortunately, the attorney general’s office does not handle most criminal prosecutions in the state. There are 71 county district attorneys who would be free to try and enforce the criminal statute against providers. There is also a 6-year statute of limitations on felonies in Wisconsin, which means even if someone doesn’t prosecute a provider now, a DA office would have 6 years to decide to prosecute.

But that doesn’t mean that Evers’s offer is meaningless. At some point, someone in Wisconsin is going to be convicted of a crime for performing an abortion, and will want to take Evers up on his offer of clemency—should he still be in office. (He’s up for re-election this fall.) So far, he seems to be the only governor in the nation to extend an offer of clemency or commutation to those who run afoul of their state’s laws restricting abortion, although others have bolstered abortion protections in other ways since the Dobbs ruling.

“I don’t know of any other governors who have gone so far as to promise clemency,” Boyce reflects. “It’s a new world order right now.”

Evers and Kaul aren’t alone: Several other elected officials in legislative red states profess unwillingness to enforce newly revived or triggered laws against abortion. What difference will this make, and what risks does it entail?

On June 24, the day the Supreme Court handed down the Dobbs ruling, Fair and Just Prosecution, a network and support organization for reformist prosecutors, released a joint statement promising to “refrain from using limited criminal legal system resources to criminalize personal medical decisions.” More than 80 elected prosecutors from around the country signed on.

“Enforcing abortion bans runs counter to the obligations and interests we are sworn to uphold,” the statement said. “It will erode trust in the legal system, hinder our ability to hold perpetrators accountable, take resources away from the enforcement of serious crime, and inevitably lead to the retraumatization and criminalization of victims of sexual violence.”

The prosecutors also said:

We are horrified that some states have failed to carve out exceptions for victims of sexual violence and incest in their abortion restrictions; this is unconscionable. And, even where such exceptions do exist, abortion bans still threaten the autonomy, dignity, and safety of survivors, forcing them to choose between reporting their abuse or being connected to their abuser for life.

The news outlet Stateline, an initiative of the Pew Charitable Trusts, has identified a number of states in which officials have “vowed not to enforce strict abortion bans, arguing that their job is to protect, not harm, the public.”

In Georgia, prosecutors in the state’s four most populous counties—Fulton, Gwinnett, Cobb, and DeKalb—have either sworn off or indicated resistance to prosecuting abortion cases. “I believe it is a woman’s right to make decisions regarding her own body and medical care,” DeKalb County District Attorney Sherry Boston wrote in a statement.

In Louisiana, Orleans Parish District Attorney Jason Williams vowed in May, after a draft of the Supreme Court’s pending decision leaked out, that he would “not shift the priority from tackling shootings, rapes and carjackings to investigating the choices women make with regard to their own bodies.”

In Tennessee, Glenn Funk, the Democratic district attorney for Davidson County, declares on his campaign website that he will “never prosecute any woman who decides to have a medical procedure to terminate a pregnancy or any medical doctor who performs this procedure at the request [of] their patient.” Funk is seeking reelection to a second eight-year term on Aug. 4. He is running unopposed; the county includes the city of Nashville and went two-to-one for Biden over Trump in 2020.

But Andrea Miller, president of the National Institute for Reproductive Health, told Stateline reporter Christine Vestal that such pledges will not likely keep abortion providers in business.

“Local officials who are willing to stand up and make clear where their values are and make clear that these bans will be harmful is an important step,” Miller said. “But I can’t say that it would give me enough confidence if I were a provider.”

And the declarations will also create targets and campaign fodder for Republicans seeking election in these states.

All four of the top GOP candidates vying in the Aug. 9 primary for the right to take on Evers in November—Lt. Gov. Rebecca Kleefisch, businessman Tim Michels (Trump’s pick), consultant Kevin Nicholson, and state Rep. Timothy Ramthun—have promised to fire any district attorney who refuses to enforce the state’s 1849 law.

Besides having the authority to grant clemency and pardons, governors in Wisconsin have the ability to fire district attorneys “for cause.” All that’s needed for a governor to act is a written complaint from “a resident taxpayer of the governmental unit of which the person against whom the charges are filed is an officer.”

That should be about as easy to get in Wisconsin as a beer.

In all, 26 states are likely or certain to ban abortion, according to the pro-choice Guttmacher Institute. In all of these states, battles will play out over the question of whether or when laws against abortions are enforced.

In Wisconsin, Attorney General Kaul, with Evers’s support, has filed a lawsuit arguing that the state’s 1849 law plainly contradicts a 1985 law that only bands abortions past the point if fetal viability, and should be superseded by it. The earlier ban allows for exceptions when necessary to save a mother’s life; the latter also always abortions to protect the mother’s health.

According to Kaul, the 1849 law “cannot fairly be said, after 50 years of being invalid, to represent the will of the people of the state of Wisconsin.” But the threat of prosecution has prompted Planned Parenthood of Wisconsin to stop performing abortions in the state.

In Texas, where abortions after six weeks have been banned since last September, Republican state Rep. Briscoe Cain has indicated plans to introduce legislation to let district attorneys prosecute abortion-related crimes outside their home jurisdiction “when the local district attorney fails or refuses to do so.” Under the state’s 2021 law, private citizens already have the right to sue any Texan suspected of performing an abortion or helping someone obtain one, a legal mechanism the U.S. Supreme Court quietly condoned in December, before mounting its direct attack on established case law.

Prosecutors at all levels of government have broad discretion regarding what cases to pursue. This seemed to come as a surprise to CNN host Don Lemon during a June 28 interview with Suzanne Valdez, the district attorney of Douglas County, Kansas, and signatory of the Fair and Just Prosecution statement that refuses to criminalize abortion.

“If the law changes, then wouldn’t you be breaking the law if you don’t prosecute them?” Lemon asked. “Well, no, because prosecutors are given wide discretion,” Valdez answered.

But as David Cohen, a law professor at Drexel University in Philadelphia, reminded Stateline, the power to exercise this discretion can be taken away easily by removal from office.

“These are important statements from local prosecutors, and they indicate the harm that law enforcers expect to come from criminalizing pregnancy outcomes,” Cohen said. “But abortion providers and their patients can’t take much solace in them. District attorneys get fired and replaced all the time, and they die.” Newly installed prosecutors have the ability to resurrect old cases, years after the fact.

Still, there will be times when the only thing that stands between an abortion provider and a jail cell will be a prosecutor who refuses to enforce the law—or a governor who offers clemency to those who break it.

Bill Lueders

Bill Lueders, former editor and now editor-at-large of The Progressive, is a writer in Madison, Wisconsin.