As soon as next week, the U.S. Supreme Court is almost certainly going to make official the draft opinion overturning Roe v. Wade leaked in early May. When that happens, at least 26 states will likely ban abortion, and 13 states will automatically do so. At least a dozen—Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah—will classify either (or both) obtaining or providing abortions as a felony punishable by prison time.
But making abortion a felony does not mean that it has to be prosecuted, and an increasing number of prosecutors are standing up to say they will not do so and some localities are setting themselves up as safe havens from that law. Austin, Texas, is the first major city in a red state to shield its residents from enforcement by the state and decriminalize abortion.
Austin city council member Chito Vela has drafted the Guarding the Right to Abortion Care for Everyone (GRACE) Act, and will move to pass it once the Supreme Court rules. The GRACE Act prohibits the investigation of abortion by any Austin personnel, including the police. It restricts city funds so that they can’t be used to investigate, catalog, or report abortions or suspected abortions. That essentially decriminalizes the procedure, at least in Austin, which is ready to take the state on. It has precedence; in 2020 the city ended arrests and fines on low-level possession of weed.
“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” Vela, told Politico. “In Texas, you’re an adult at 17. We are looking at the prospect of a 17-year-old girl who has an unplanned pregnancy and is seeking an abortion [being] subjected to first-degree felony charges—up to 99 years in jail—and that’s just absolutely unacceptable.” A spokesperson for the city of Austin told Politico that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.”
The stakes are high in Texas, particularly. Having or providing an abortion, including by taking abortion pills, will be a first-degree felony. That means the potential for life in prison and a fine of up to $10,000. The only exception is to save the life of the pregnant person. Texas law enforcement in other parts of the state are champing at the bit to start enforcing it—the case of Lizelle Herrera in Rio Grande City proves it. The 26-year-old woman was charged with murder for a “self-induced abortion” in April and put in jail, contra to standing Texas law. Her indictment was dismissed by a district attorney.
Vela has had discussions with Austin Police Chief Joseph Chacon. “The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”
“We need them focusing on historically classic criminal activity—not politically disfavored groups that factions in the government want to harass and punish,” Vela added. “That’s the real core of what we’re trying to do.”
Prosecutors in other states are taking stands to do the same. Steve Descano, the commonwealth’s attorney for Fairfax County, Virginia writes in The New York Times that “no matter what the law in Virginia says, I will not prosecute a woman for having an abortion, or for being suspected of inducing one.”
“[W]e local prosecutors are uniquely positioned to safeguard the rights of the women we represent, by virtue of the discretion the legal system affords us,” Descano writes. “Every day, we decide where to deploy our limited resources, making judgment calls about which cases are consistent with the values and priorities of the communities we represent, which plea deals to pursue, and which crimes merit our attention. When it comes to charging individuals, we are the arbiters of the law.”
Prosecutor Kym Worthy, in Wayne County Michigan agrees. That state still has a 1931 law on the books that bans abortion, currently superseded by Roe. “I feel like I am living in the Twilight Zone,” Worthy said. “I have three daughters. Now more than ever I must stand to protect them and their reproductive rights. This is not just for my daughters, but for every single person in America so that they can decide what to do with their bodies.” Her colleague in Washtenaw County, Prosecutor Eli Savit also vows to “never, ever prosecute any provider or patient for abortion in Washtenaw County.”
That’s fine with Michigan’s attorney general, Dana Nessel, who will not prosecute anyone under the state’s old law. “I’m not going to enforce the law, nor will I defend the law, which I believe is unconstitutional,” Nessel said. “I don’t want to do anything that will cause women to be seriously harmed or die. This is not what I’m going to utilize the resources of the state on.”
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Wisconsin Attorney General Josh Paul also ruled out prosecuting abortions under that state’s ban from 1849, which has remained on the books. “As long as I’m attorney general, we will not be using any resources for those purposes,” Kaul told the Wisconsin State Journal.
There are likely to be many, many more prosecutors across the country taking that vow. One group organizing them is the national nonprofit Fair and Just Prosecution. In a statement after the Alito’s draft opinion leaked, Executive Director Miriam Krinsky pointed out that dozens of criminal justice leaders—current and former elected prosecutors, law enforcement leaders, and former state attorneys general, federal and state court judges, U.S. attorneys and Department of Justice officials—joined in filing an amicus brief to the Supreme Court urging that Roe be upheld and that “in 2020, 68 elected prosecutors vowed to never prosecute individuals for obtaining or providing abortions.”
“The fact that something can be prosecuted doesn’t mean it should be prosecuted—indeed, prosecutors often determine that pursuing certain cases would be unjust, inefficient, or not aligned with promoting public safety,” Krinsky told the Brennan Center for Justice’s Lauren-Brook Eisen.
“We know that outlawing abortion will not end abortions. It will compromise the ability to obtain safe abortions, forcing the most marginalized among us—as well as medical providers—into impossible decisions,” Krinsky said. “Enforcing abortion bans also strains limited resources that could instead be used to address serious violent crime. And criminalizing these decisions will erode trust in law enforcement, adversely impacting reporting by victims of abuse, rape, and incest.”
In fact, she continued, prosecutors “will inevitably help save lives, protect their communities, and promote justice” by not prosecuting abortion.”