If Roe Falls, Abortion Prosecutions Will Be a Matter of Discretion

A leaked draft opinion made clear earlier this month that the Supreme Court is on the verge of overturning Roe v. Wade. Among other things, this will create a situation where abortion rights in practice vary not just state by state, but county by county. It’s a scenario of indescribable legal and regulatory chaos, and it means that people seeking abortions could be legally entitled to do so on one side of a street and criminally prosecuted on the other. And with limited period-tracking app data being sold on an online marketplace, there’s also a possibility that prosecutors seeking to construct cases against abortion patients or healthcare providers would have a new tool with which to do so. 

All of this is, of course, terrifying, even for some officials tasked with prosecuting crime in their counties. In conversations, two district attorneys—Sim Gill of Salt Lake County, Utah, and José Garza of Travis County, Texas—and one county attorney, Martha Ann Hornick of Grafton County, New Hampshire, said they are deeply unlikely to ever prosecute an abortion-related case. 

(The three were among dozens of prosecutors Motherboard asked basic questions about the plans their offices have for a post-Roe legal regime and whether they have subpoenaed app data or purchased it from commercial data brokers to pursue abortion-related prosecutions, or have a policy on doing so. Most did not respond, and most of those who did declined to answer.)

“My job is to ensure community safety,” Gill told Motherboard. “To make sure that these communities feel this institution is not going to criminalize them. Otherwise, you create this chilling effect, and our community is less trusting and less safe as a result of an institutional response.” Salt Lake County is where both the abortion clinics in Utah are located; Gill previously said in 2019 that he would not enforce a proposed 18-week abortion ban being pushed by conservative legislators at the time.

“We know that if Roe is overturned it will push those seeking an abortion into the black market,” Garza told Motherboard. “My number one responsibility is to keep our community safe.”

Hornick, whose county includes Hanover, NH, where Dartmouth College is located, also said she wouldn’t use her prosecutorial discretion to pursue abortion cases. “ I can’t imagine we’d be prosecuting an abortion provider or a woman receiving it,” she told Motherboard. “That’s my position as the county attorney.” 

The fact that these specific elected officials are signaling their unwillingness to prosecute abortion is striking, given how different the legislative climate is in each state. Texas and Utah have both so-called “trigger laws,” which will go into effect if Roe is overturned. In Texas, abortion providers would face felony charges, fines of up to $100,000 and up to life in prison. (Texas already bans abortions after six weeks, when most people aren’t even aware they’re pregnant.) The state also has a particularly creepy provision allowing private citizens to sue anyone who “aids and abets” an abortion, creating state-incentivized legal harassment of abortion providers and patients. (It’s also worth noting that people accused of having self-managed abortions have already been subject to criminal prosecution, as with the case of Lizelle Herrera, a 26-year-old Texan who was initially charged with murder after a hospital where she sought treatment called the police on her; those charges were ultimately dropped.)

In Utah, a trigger law signed in March 2020 makes abortion illegal, with certain, narrowly-crafted exceptions: if the pregnant person is at severe risk of death or serious irreversible injury; if the fetus has a lethal defect, which two maternal health doctors must agree on; or in cases of rape or incest, but only if those crimes have been reported to authorities, something many survivors of sexual abuse don’t immediately do, and especially not in the early stages of pregnancy. 

New Hampshire currently bans abortions after 24 weeks, but a bill is on the way to be signed by Governor Chris Sununu to amend that law, adding an exception for fatal fetal abnormalities and striking a requirement to have an ultrasound first, except where the fetus is believed to be at least 24 weeks old. Abortions after 24 weeks are already legal in New Hampshire if the pregnant person’s life is at risk. The governor seems to eager to identify himself in different ways to different audiences. He’s touted his pro-choice bona fides in public remarks, but in a recent podcast appearance, Sununu said, “I’ve done more here on the pro-life issue, if you will, than anyone.” (A state-by-state look at how abortion laws will function if Roe falls is available here.) 

“The issues that are most prevalent in my county are drugs and sexual assault prosecutions, domestic violence proscutions. That’s what we focus on primarily,” Hornick told Motherboard. While she would review abortion-related cases if they’re brought to her, she said, “We have discretion whether to go forward with prosecution.” They would also seek guidance from the state district attorney’s office, she said. 

All three elected officials described similar concerns to Motherboard: that more pressing public safety concerns would be impacted by a focus on prosecucting abortion patients or doctors, or that communities would come to further distrust them if they were criminalized for making basic medical decisions. While none planned to use smartphone data to pursue abortion-related cases, Gill acknowledged that other prosecutors certainly might.

“There’s a genuine expectation of privacy in our smartphones and the technology we all have come to overabundantly rely upon,” he said. “If you’re going to engage in the violation of that expectation of privacy, you have to have some really compelling reasons to do that. An overzealous prosecutor in a district that wants to enforce it will certainly use the power of the law to access those formats under the color of state authority.” 

“When we’ve needed to access data, it’s in the realm of child pornography or something along those lines,” Hornick told us. “What you’re suggesting, that’s a big fat no as far as what I’d be asking any of the investigators in my office to do.” 

Garza said that Travis County residents would also not need to worry about period-tracking app data being used to criminalize them. 

“I want to be clear for people living in Travis County—as long as I am their district attorney they won’t need to concern themselves about what the results of the apps they’re using or their private medical data and records finding their way into criminal proceedings in our community,” he said. 

Ironically, Garza himself faces potential criminalization for declining to prosecute abortion cases if Roe is overturned, along with a number of other Texas DAs who have said they won’t take such cases. Briscoe Cain, a state rep from Houston, has threatened to file legislation empowering other district attorneys to file charges in counties where local authorities refuse. But Cain, Garza says, misunderstands the Texas Constitution and existing law. 

“The Texas Constitution and the highest court here in Texas have been pretty clear that only elected district attorneys have jurisdiction to bring state criminal prosecutions in their communities,” he said. “That’s the way the law works, that’s the way it continues to work.”

For his part, Gill is preoccupied with the broader chaos this could unleash. “What we’re creating here is not only a national map, a checkerboard, but potentially within each state as well. What this is is a chaos of uncertainty, where one person will be treated differently because they happen to live over an artificial geographic line,” he told Motherboard. 

His biggest concern, he added, “is that we not rush into this, that we recognize exactly the terrain that we’re plowing here and understand the collateral consequences personally, individually, institutionally and from a societal perspective. I don’t think we’ve thought those through yet.”