Abortion advocates fear that overzealous law enforcement officials will crack down on the most vulnerable communities in the states, which ban abortions, while anti-abortion activists devise ways to circumvent progressive prosecutors who vow not to commit abuses. of abortion if Rowe is repealed.
The 1973 decision and subsequent court rulings guaranteed the right to abortion throughout the country to the point of fetal viability, about 23 weeks after pregnancy. A draft majority opinion unveiled by Politico on Monday suggested the conservative Supreme Court was seeking to repeal those protections, although its ruling will not be final until a formal ruling is issued by the end of June.
In the world after Rowe, abortion must become a leading issue not only in federal and state competitions, but also in campaigns for local services that will apply the new legal landscape around the procedure.
“Prosecutors can make such political decisions and then potentially be held accountable to voters if voters are not happy with the results,” said Katie Glenn, government adviser to the anti-abortion group, Americans United for Life. . “Certainly politicians are people and they are vote counters, so I definitely think there will be an element of reading the room as much as the local community wants.”
Even before the expired draft signaled to the Supreme Court on the verge of Rowe’s overturning, some state and local prosecutors vowed not to impose the imposition of abortion offenses passed if the precedent is overturned. These promises partly motivated the turn that anti-abortion lawmakers have taken to new measures, such as a six-week ban on abortions in Texas, which uses the threat of civil lawsuits to discourage providers from offering the procedure.
“I think there was an argument that removing Roe would de-escalate the conflict by allowing everyone to reach local solutions, and instead you just see the conflict intensify as it becomes more local,” said Mary Ziegler, a college professor. in law at Florida State University, who has written a book exploring the abortion law in the United States after Rowe.
Researchers who studied the application of abortion bans – either internationally or in the United States before the Rowe v. Wade case was decided – say the desire to commit abortion-related crimes will depend on who runs the prosecutor’s office and the political environment at the time.
Local law enforcement officials face limited resources, said Michelle Oberman, a law professor at the University of Santa Clara and author of a study examining abortion bans abroad.
“Because they are elected officials, [they’re also] sensitive to what they think their constituents want and what they think their constituents will aspire to, which means what the jury would actually condemn, “Oberman told CNN.
He vows not to prosecute abortion crimes after Rowe
Due to the discretion that local officials will have, abortion will become a key political issue in these competitions, both sides predict.
“Right now, the average voter is probably thinking about his or her congressman or state legislators when he or she thinks about protecting life or choosing and doing research on those candidates,” said John Seego, Texas Right to Life’s legislative director. “In this next chapter of the battle for life, many of these decisions will be at a lower level.”
It will be important, he said, “to actually make sure we don’t have abortions, not just illegal abortions, but in practice … our elected officials are looking the other way.”
This prosecutorial judgment is already taking shape as a hotspot in contests such as the re-election of Michigan Attorney General Dana Nessel, whose state has a pre-Rowe abortion ban on books that could be imposed if Rowe’s precedent is overturned.
“My office will not be involved in any of these lawsuits,” she told reporters this week, while stressing her Republican opponent’s promise to enforce the law. Michigan’s 83 district attorneys can still potentially sue, although seven have also vowed not to prosecute abortion crimes. (Democratic civil servants also filed a lawsuit with the state’s Supreme Court, asking it to lift the 1931 ban). Dozens of state and local prosecutors signed statements in 2019 and 2020 pledging not to impose certain laws criminalizing abortion in an effort organized by the Fair and Just Prosecution Group. The organization also filed a petition with a friend of the court on behalf of nearly 100 current or former prosecutors and law enforcement officials in the case now before the Supreme Court. He argues that criminalizing abortion will create mistrust among law enforcement agencies among the communities they try to protect.
“If the law changes … there would be more than just chaos, but a lack of trust in the integrity of the rule of law,” Miriam Krinski, the group’s former federal prosecutor and chief executive, told CNN.
Amanda Litman – who runs Run for Something, which recruits progressive candidates for positions with lower ballots – said she expects the issue to become more important in local contests of all kinds, including prosecutorial positions, as these officials will somehow have a “more direct” role in the conduct of abortion policy.
“Congressional campaigns will have to rely on collective action,” she said, which means that a Democratic candidate in Congress can only defend abortion rights if elected by a legislative majority. “That’s not true locally. You only need one.”
Anti-abortion activists are looking for ways to circumvent the fact that prosecutors serving blue jurisdictions in the red states may not have to enforce anti-abortion laws. Among the proposals being discussed in Texas, according to Sigo, is to allow the Attorney General to prosecute or allow local district attorneys to prosecute abortion crimes in neighboring jurisdictions if the local attorney refuses to do so.
His group is urging Texas and other states to expand the use of the six-week ban mechanism – which allows individuals from anywhere to sue suppliers or others who facilitate banned abortions – to apply to all abortions if Roe is reversed.
“You really need more tools on the table to make sure it’s really being followed,” Sigo said.
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