Prosecutors Can’t Stop Police From Investigating Abortions, Even if They Want To

Liberal prosecutors have pledged not to enforce abortion bans. Will it work?

Last fall, Eli Savit had a sinking feeling that the end of Roe v. Wade was near.

States had been chipping away at the nearly 50-year-old precedent that legalized abortion nationwide, and the Supreme Court seemed poised to overturn it. But, as prosecuting attorney for Washtenaw County, Michigan, Savit had the power to do something about it: In September, after Texas enacted a six-week abortion ban that flew in Roe’s face, he announced, “As long as I hold office, we will never, ever prosecute any person for exercising reproductive freedom.”

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“If Roe is formally overturned, there is a Michigan law on the books that criminalizes abortion—and makes it a felony,” Savit tweeted. “Let me be abundantly clear: We won’t prosecute that.”

Now that the Supreme Court has indeed overturned Roe, numerous prosecutors have announced that they, too, will not enforce abortion bans. At least 90 have pledged not to prosecute, including the attorneys general of Michigan, Minnesota, Massachusetts, Delaware, Colorado, and Wisconsin. Blue cities in red states have also tried to restrict resources from going to abortion-related investigations and prosecutions, while officials in liberal states have announced that they will not cooperate with efforts to extradite abortion providers.

But, as abortion providers and patients alike scramble to make sense of the patchwork of state laws and restrictions now in effect, the question remains: Do these kinds of declarations do anything?

The answer, like so much else regarding abortion in America after Roe, is far from straightforward, experts told VICE News. Although deciding not to pursue charges against people who perform abortions may send important signals to patients and providers, it’s also nowhere near a guarantee of safety. 

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When a prosecutor pledges to not enforce an abortion ban, they are doing what they do every day: exercising discretion. Discretion is a part of every law enforcement job, because there are always decisions that factor in how far and hard an official may push a case. Prosecutors routinely exercise that discretion and have done so for decades, even in defiance of federal laws. Jacqueline Fox, who teaches about health care law and bioethics at the University of South Carolina, recalled that, during Prohibition, “People were just like, ‘Nah, we’re not going to go into speakeasies and arrest people.’”

“We saw this on the other side, where sheriffs were saying they wouldn’t enforce COVID regulations and they just don’t enforce the regulations. That’s within their discretion. They can totally do that,” Fox said. “If it’s within their discretion, there’s no mechanism to force them to do anything, which is both good and bad.”

But, ultimately, local officials can’t reconstruct Roe’s protections on their own, for a variety of reasons. Prosecutors can’t, for example, stop abortion cases from popping up in the first place. In April, a Texas woman was arrested for murder for what officials called a “self-induced abortion.” A local district attorney ultimately declared that there was no basis for prosecuting her and dismissed the case, but by that point, her name and situation had made news across the country. (Abortion restrictions tend to target people who perform abortions rather than the people who undergo them, but abortion seekers have faced criminal consequences.)

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Savit said that he doesn’t think that any local law enforcement officials in his county are planning to prioritize enforcing the Michigan abortion ban, which dates back to 1931 and is not currently in effect, thanks to a court challenge. However, the court order halting the ban could dissolve at any time.

“Knowing that I’m not going to prosecute it, hopefully that would discourage any sort of investigation and certainly any arrests. But I don’t control what police do. No prosecutor does,” Savit said. “And across the state, notwithstanding what a local prosecutor said, if this old 1931 law springs into effect, it is true that law enforcement can still investigate, can still arrest, can still really disrupt somebody’s life for exercising their right to an abortion.”

As elected officials, prosecutors also lack job security, which means that any promise of discretion is far from permanent. Someone who violates the 1931 Michigan abortion ban could face prosecution for up to six years afterward, Savit said. He’s up for reelection in 2024, and if he’s voted out of office before that statute of limitations expires, his successor could charge an abortion provider for violating the ban. 

The only way to truly protect people who want abortions in Michigan, he said, is to amend the state constitution to include abortion rights, or have the state’s Supreme Court declare that it already does. A ballot initiative to amend the state constitution has garnered a record-breaking number of signatures ahead of the November midterms, while there are multiple legal proceedings in the works that could convince Michigan’s Supreme Court to recognize a state right to abortion. 

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Other kinds of local officials have also moved to protect people from abortion-related prosecutions. Earlier this month, the Nashville City Council voted to request that police deprioritize pursuing abortion cases. Austin’s city council is preparing to vote this month on a similar measure, which would make abortion cases Austin police’s lowest priority. 

These cities may be in more uncertain terrain. Conservatives often say they believe that abortion should be legislated at the state level—but what happens when even smaller governments try to take a stand? 

There’s no clear answer, according to Fox.

“That gets super complicated depending on the state’s home rule structure. This varies a lot from state to state, like how much control the state can exert over counties and towns, and it becomes very often a statutory issue or a state constitutional issue,” Fox said. “It’s going to be a huge constitutional state law issue.”

Even if a local government official tries to shut down an abortion case, there is a chance that the state government could step in and decide that, actually, its attorney general will take it on. In order to inoculate people from prosecution, Deborah Ahrens, a Seattle University School of Law professor, recommended that governors who support abortion rights offer pardons. She pointed to the example of Wisconsin Gov. Tony Evers, who said in late June that he would offer clemency to any doctor facing prosecution for performing abortions in Wisconsin. 

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“If you pardon people, that’s something that the state attorney general’s office and other local officers can’t do anything about,” Ahrens said. But, she added, “I’m not sure hoping for a pardon is going to be would be enough to make it so that people would be willing to take on the risk of providing abortion services.”

Every expert who spoke to VICE News agreed: Despite these local efforts to protect abortion, there’s little chance that they’ll convince doctors to start performing illegal abortions. Not only are doctors notoriously risk-averse, but even if they’re (relatively) safe from criminal prosecution, they could still face all kinds of civil consequences if they break the law, such as the loss of their insurance or their medical license.

Amy Hagstrom Miller runs Whole Woman’s Health, a national network of abortion clinics that, prior to Roe’s demise, had four locations in Texas. Now that Texas has banned almost all abortions, Miller is closing down her Texas clinics and starting a new one in New Mexico. She appreciates the Austin plan to deprioritize abortion prosecutions, but, she said, “it’s a little bit too late.” At this point, no medical professional is providing in-clinic abortions in Texas.

But, Hagstrom Miller said, that doesn’t mean it’s meaningless.

“I think an affirmative protective sort of measure would be meaningful for, let’s say, people who live in Texas who are trying to help people get abortions outside of Texas, who are trying to provide them with abortion funding,” she said. “Can we make appointments in other places? Can we give people advice? Can we help them with travel expenses? Can we help them with abortion funding? Protect people who are working and living in Texas communities to still do that work from Texas, for Texans and for other people.”

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Hagstrom Miller also appreciated these kinds of measures in liberal places that may see patients from states where abortion is now banned, since abortion opponents are now threatening to try to restrict patients from traveling out of state. In recent weeks, politicians in states like Colorado and Washington have announced that they will reject requests to investigate or extradite people for breaking other states’ abortion laws. 

“Providers and staff, but mainly providers, are anxious. They’re scared about seeing people who travel,” Hagstrom Miller said. “They’re worried about what implications there may be. So I think something like that is very meaningful from an attorney general, from a governor, from a medical board, et cetera.”

In the post-Roe state-by-state, city-by-city dogfight over abortion rights, experts told VICE News that every little action matters. Even if a state ultimately swoops in to press charges in a case that a prosecutor has rejected, that’s still forcing the state to spend its time and money on a court battle they could ultimately lose.

“Policing this for 300-something million people who all believe that they are entitled to control their own procreative choice is a heavy lift. It’s extraordinarily intrusive to even imagine what would truly be required to police this, given that you can do medical abortions with medication you get through the mail,” Fox said. “Given how incredibly time consuming and intrusive the enforcement would have to be to truly do this, it’s going to make a difference.”

Julia Lindau contributed to this report.

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Tagged:

texas, Michigan, wisconsin, roe v. wade, whole women's health, Prosecutors, abortion pills, abortion bans, Dobbs v. Jackson Women’s Health Organization

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