The new politics of prosecution

Abortion politics is the black hole into which everything else seems to be sucked these days, and we’re learning that law enforcement is no exception. In January, a federal jury acquitted pro-life sidewalk counselor Mark Houck of charges that he allegedly shoved an abortion clinic volunteer. The charges against Houck under the Free Access to Clinic Entrances (FACE) Act is one of a number of such cases brought as part of a recent push by Attorney General Merrick Garland’s Department of Justice.

Abortion politics also are dictating decisions not to prosecute under Garland. As Virginia Governor Glenn Younkin told the Daily Signal, it is an absolute shame that the Attorney General continues to allow protestors outside the homes of Supreme Court justices because he refuses to enforce the law against left-wing activists.

That attitude is filtering down to the state and local level, where many elected prosecutors in the wake of Dobbs made a public commitment not to enforce state abortion regulations. Eighty-three prosecutors from states across the nation issued a joint statement pledging to undercut any state laws criminalizing abortion, pledging to “stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions.” They continued: “As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

The signatories hail from all the places you’d expect, like Manhattan, Portland, Chicago, and San Francisco. But the list also includes many elected prosecutors from the deep blue areas of otherwise red and purple states that have already or will soon outlaw abortion: Alabama, Georgia, Missouri, Mississippi, Tennessee, Texas, and Wisconsin.

These lawless prosecutors (which should be a contradiction in terms) are betraying their oaths. As attorneys, every one of them took an oath when they graduated from law school and were literally sworn in to the bar. That oath includes pledges like upholding the Constitution and faithfully discharging the ethical duties of an attorney. Public servants generally take a second oath specific to their office; the federal oath required of all civil servants includes a promise to faithfully discharge the duties of the office which the person is assuming. The duties of the office of prosecutor, of course, are to prosecute violations of the law. If they can’t or won’t do that job for reasons of conscience, they should resign. And if they won’t resign, then governors or others in authority should fire them, as Gov. Ron DeSantis did in Florida.

Unfortunately, prosecutors on power trips is not a new phenomenon. We’ve seen previous efforts to declare an end to referrals for immigration violations (so-called sanctuary cities), or for “sex work” (i.e., prostitution), or for possession of illegal drugs (i.e., prosecutors single-handedly decriminalizing marijuana). For a hot minute, the newly elected Manhattan DA tried to end jail time for anything less than homicide before the backlash forced a reversal.

But prosecutors are no more super-legislatures than judges should be. The job of legislatures is to decide what laws should be made, and the job of executive officers is to “take care that the laws be faithfully executed.” When prosecutors decide to cancel certain laws in their jurisdiction unilaterally, they go beyond their proper role and violate their oath.

Thankfully, this display of prosecutorial pique won’t matter much, for two reasons. First, state attorneys general usually have complete overlapping prosecutorial authority with local DAs, or can be granted it by the red-state legislatures that pass anti-abortion laws. So practically, no part of a state can be exempted from enforcement. In addition, if more states pass civil tort laws granting a right of action to fathers or others, then abortion centers can find themselves in bankruptcy even if not jail.

Second, Planned Parenthood is the nation’s number one abortion provider. It is a federation of individually incorporated local affiliates, but it is also a unified national brand. And in addition to its abortion business, it relies on state and local governments to fund numerous other services it offers, especially through Medicaid. In other words, it has a strong disincentive against disobeying criminal abortion laws if it wants to continue providing contraception, STD testing, and all its other services. And to protect the national brand, the national organization will ensure its local affiliates comply with the law rather than risk civil or criminal liability.

Plus, if all else fails, red-state governors can follow DeSantis’ lead and fire prosecutors who refuses to enforce the law.

So these sweeping statements of prosecutorial policy-making may not amount to much in the end. But given that many of these same prosecutors are failing to maintain basic public safety on their streets, are we surprised they are grandstanding on abortion instead? Especially for Democrats on the campaign trail (or planning to be), abortion dominates all else.