Politics

“I Didn’t Make This Law, and Now I’m Stuck With It”

A crowd of people holding up signs like "Abort the Court" and "Their Bodies, Their Choice."
Abortion rights activists protest outside the Planned Parenthood Reproductive Health Services Center in St. Louis, Missouri, on June 24. Angela Weiss/AFP via Getty Images

As the Jackson County prosecutor, Jean Peters Baker swore an oath: to uphold Missouri’s laws. And then, Roe v. Wade was overturned. And Baker had to try to figure out what, exactly, the law was. In Missouri, an abortion trigger law was nearly instantaneous. “Within the first 15 minutes, it became law in Missouri upon the decision being released,” Baker says. “I had to pivot pretty hard to see, OK, what is this new law? And then I realized, oh, it’s a near-total ban.”

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Baker has scoured the law itself, of course. Missouri’s ban passed in 2019. Now that Roe’s been overturned, it makes performing an abortion a “Class B felony.” The impact of these new laws has been chaotic. “People are only now realizing the import of those words that they put into law and what does it mean,” Baker says.

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On Tuesday’s episode of What Next, we spoke to this Missouri prosecutor, who doesn’t want to put women or doctors on trial over abortion, but she’s not sure she’ll be able to avoid it. Our conversation has been condensed and edited for clarity.

Mary Harris: Jean Peters Baker follows the news. She saw the big abortion ruling coming. But the thing is: She didn’t quite believe it. 

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For me, it was, Wow, it’s hard to put my head around all that. It’s hard sometimes to prepare in advance for something that you even seen barreling down the tracks. 

Baker lives in a bluish part of Missouri. Her county contains a chunk of Kansas City and some nearby suburbs. She worked in the local prosecutor’s office for over a decade, and then in 2012 she was elected to run the place. When the Supreme Court ruling came down overturning Roe, she was prepared. She told her constituents she’d use her prosecutorial discretion to limit how many abortion-related cases ended up in court. It’s not entirely clear, though, what that is going to look like, even now. 

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My job is to uphold all Missouri laws, even those I don’t have a grand amount of respect for and that I think might do some harm. Now, that said, it’s very, very important for me to tell your listeners that I do have discretion, and I will use my discretion in ways that help my constituents rather than needlessly harm them.

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Man, that feels like such a squishy promise. And I understand that you’re in a difficult position. Would you say you support abortion rights?

I do, as an individual, as a female, and politically, I do. But as a prosecutor, this is not the county of Jean Peters Baker. This is the county of Jackson, under the state of Missouri. And so the oath I took was to uphold all Missouri laws. That said, I can review these cases with a great amount of skepticism. I can view them knowing that maybe the black letter law might look easy, but the facts of these cases will not be.

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Is there any circumstance in which you see yourself prosecuting a health care provider or a woman over abortion?

So there’s the rub. Keep in mind, I’ve been doing this job for quite a while. I’m closing in on my 25th year of this kind of work. One of the things I’ve learned is that you need to be careful of saying never or always. The facts of individual cases are going to guide what happens.

I’ve looked at a case before that was brought to me outside of the protections of Roe and chose not to prosecute that case after I did some more probing. That led me to a completely different place, and it led me to not prosecute that young woman.

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What were the facts? Do you mind laying them out?

It was a very young mom. I’d say about six years ago. The father was out of the picture, and she ordered drugs through the mail. She did abort her fetus, but she also nearly killed herself. There’s some other factors layered in there. Her socioeconomic status was very low. She had no family support, so she was just somebody out there on her own struggling. And I don’t believe my system is meant to bring her into a courtroom. I did not prosecute that case because I learned during my review of it that she was suicidal, that she almost killed herself by taking those drugs.

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And to you that was mitigating. 

Of course it was. And every prosecutor should want to know those things. So you need to go out and get them yourself.

And perhaps for the health care provider, you need to fully understand that individual’s thought about what they needed to do as a health care provider. What’s their oath?

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I’m trying to put myself in the position of a physician in Jackson County who has maybe provided abortions in the past and may be looking for guidance about what to do now. And I feel like hearing what you’re saying, it makes a lot of sense. But I guess it also doesn’t give me a ton of reassurance that I’m not going to be dragged through a process for doing what I see as my job. And I also look at you and the fact that you were elected. You could be no longer the prosecutor in a few years. And then maybe I’m really in trouble.

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That’s right. That’s true, too.

What do you hope that doctors do in your county, hearing your position. What do you hope it gives them?

I really would love to be able to give health care professionals reassurance. All I can do, though, in this moment is give them the notion that I will give everybody a fair shake, that my job is to review the law to make sure that I am upholding my role as the prosecutor. But even that said, I believe in the work that health care providers do. I believe that they are the experts, not me, and that I want to respect the work that they do.

There’s a Republican county prosecutor in your region, in Platte County, who said he will pursue abortion ban related cases. That makes things extra confusing, I’m sure, for those physicians and women about what they do. And it makes it seem even more like what you’re offering might be cold comfort. And I understand it’s all you can offer, potentially, but I wonder if you struggle with that a little bit.

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I am 100 percent struggling with it, yes. As a public servant who upholds Missouri’s laws by an oath of office, I am simply the steward of this office for now—entrusted by the voters to do it. I want to do the job as best I know how to do it—and justly. So, with all those things in mind, I have a very difficult job ahead in trying to figure out how to provide some comfort to the necessary work that health care providers give without being harmful to them in that process. It’s going to be difficult for all of us.

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You’ve shared a bunch of concerns about Missouri’s law, and one of them is that it could be used to prosecute a woman who sought an abortion. Why you think that? The law says, “A woman shall not be prosecuted for a conspiracy to violate the provisions of this subsection,” which means there are few other things maybe she could be prosecuted for.

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Absolutely.

What kinds of things? 

Well, for instance, she could be viewed as the principal in that situation and prosecuted for some grade of homicide.

Oof!

Oof is right. Now, let’s go a few steps further, because that’s where Missouri’s law is. Missouri’s law is very specific that we have no exception—none—for a rape victim or incest victim. Now, that one angers me a great deal.

You called it mean.

I did call it mean. It’s mean-spirited.

I know you prosecuted rape and incest cases before you led your office. And I imagine those cases are what’s in the background when you think about this.

They’re in the background for every single prosecutor in America. I’m not different. Every jurisdiction in America will have rape victims that walk through their office doors that have been forcibly impregnated, or the potential for that to occur is great. Incest victims—and I don’t mean to be overly blunt, but this is where we are now—are so repeatedly attacked, they’re so repeatedly forced to have intercourse without their consent, that there’s a greater risk of pregnancy for them. They will show up as pregnant. It’s just one of the consequences of that horrendous crime. That horrendous crime occurs in every part of America, so prosecutors are going to see her. Missouri decided we want to throw one more thing at her. Tell me a better word than mean for that. Can you can you come up with a better one? I can’t.

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Democrats in your state legislature actually asked for a special session to clarify the language of Missouri’s abortion law, because some have suggested early on that it was even broad enough that it could ban contraception, which I think was clarified that that was not the case. 

Well, look, the governor also put out an edict immediately after Missouri’s law became effective, saying there was a ban on the prosecution of women. That’s not true.

Why do you say that?

Because it’s not true. He may wish that right now when he realizes what they just passed and what are the consequences, but that’s not true. And you can read the law like I can read the law. You don’t have to be a legal scholar to know that’s not what Missouri Law says. So, women may be prosecuted under this this statute, and it may be a rape victim, and it may be a medical care provider, and it may be a woman who really wanted that child to be born, but something happened and she cannot successfully have that child without risking her own life.

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I don’t know what all this means. But I do know that Missouri’s law is so broad that I can say I won’t prosecutor a woman for conspiracy. I can say that because Missouri law purely says that. It’s very plain and clear. I will not prosecute a woman for conspiracy because the law in Missouri does not permit it. Except the problem is Missouri law permits a whole lot of other types of prosecutions.

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It was interesting to me because your governor declined to have a special session to clarify the language of Missouri’s law here. And the reasoning that his spokesperson gave was essentially because this is complicated and it’s going to take time to figure out. It was interesting to me because it seems like in the absence of clarification, figuring it out will fall entirely to people like you.

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That’s right. Now, this is where discretion does matter, perhaps. I think when prosecutors read that law, it’s going to look pretty simple. It’s going to be one of the easier cases, perhaps, for a prosecutor to bring. My concern is to try and get prosecutors to slow down and look at the consequences of what could happen by filing those cases. We put a lot of thought into death penalty cases before we bring those. I’d like to think that will happen here.

But that means there will be prosecutors who are going to carry these. I will just guarantee it. It’s going to happen. And I hope that they have made those decisions very thoughtfully. I hope that they’ll look at the ramifications of filing such a case. And I hope that they’ll look at mitigation that might be right in front of them rather than just running to file the charge.

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Last week, there was a story out of Ohio that got a ton of attention about a 10-year-old who traveled out of state to get an abortion after being raped by a 27-year-old.

What I thought when I saw that was how much power government prosecutors have right now. Because, first of all, you had Ohio’s attorney general initially saying, I don’t think this happened, even though it clearly did happen. Then you had the Indiana attorney general saying he was going to investigate the doctor who had performed the abortion. 

And it just seemed like there was so much legal involvement. And it was clear to me that government attorneys can really raise or lower the heat around abortion and how we talk about it. And I wonder if you saw that case and the discussion of it as instructive in some way for someone like you.

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I 100 percent did. Because I thought, uh-oh, here it is. A 10-year-old? Boy, what a tender age 10 is. But you know what? So is 11, 12, 13, 14, 15, 16. So is an adult woman who might have mental capacity issues so she’s not able to consent. All of those cases, by the way, I’ve had all of them.

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I’m just trying to highlight the number of different circumstances that I know can come up into play because I personally had them happen as a prosecutor here in Kansas City, Missouri. So if that’s been my personal experience, it’s got to be the experience of prosecutors all around the United States, because we’re not different. We don’t have a higher degree of sex assault probably than anybody else. And by the way, it’s pretty high in almost every jurisdiction in America. It’s something that’s real. It happens on a regular basis.

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I will not be surprised to see that these cases do become politically charged, depending on who’s running for office, what they want to run for, do they want to create some kind of name for themselves? I’m worried about that. And if you view your public office as a launchpad to a new position, that should worry all of us: What a prosecutor in that situation might do, what an attorney general who may want to go on to higher office might do to put themselves in a position where perhaps they feel like they can do greater fundraising with a very public story.

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You’re a politician. Some would say you’re taking a stand too.

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You bet I am. But I am speaking from somebody who is looking at black letter law and how it applies to cases that I already see, how it applies to the rape victim that walks through my door and how I’m supposed to serve her. So the way I’m viewing it is as somebody that now has a new law and I have to figure out how to use it.

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You work closely with law enforcement. That’s your whole job. You’ve alluded to having conversations with them, explaining how you’re going to approach these kinds of cases. Can you take me inside those conversations?

I told them, “You may view me as having a political view here.” And I said not to presume anything. “If you get one of these cases, you are to bring it to me. That is my job. It’s my role.” And one of the reasons I wanted to be very clear about that is in my state, my attorney general also has concurrent jurisdiction.

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Over your jurisdiction? 

Yes, over this issue. He is the seated attorney general, and he is running for the United States Senate. I don’t forget for a moment that that is the man that may come into my jurisdiction if I’m not doing my job. And I’m not going to have that. This is my jurisdiction. And I will prosecute or not the cases that occur within my jurisdiction. So for me, it’s another reason that I need to be careful with what language I use and be careful about how I go about handling my job as a prosecutor.

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Do you fear that by speaking out and saying very plainly how you feel about Missouri’s abortion ban that you’re going to draw the scrutiny of your attorney general, that you’re essentially going to bring fire on yourself?

I don’t know how to avoid it. I don’t seek it. I don’t want it. But I’m not a lawmaker. I didn’t make this law, and now I’m stuck with it. And I’m also stuck with the political makeup of my state It’s a difficult space to be in.

It’s hard not to see you as in an impossible bind. 

I’m in an impossible bind, but this is my jurisdiction. I was elected here. And I know my community. I know neighborhood leaders. That doesn’t mean everybody agrees on abortion, not by a long shot. But they know me. They know the type of prosecutor that I am. And I’m going to do my job here rather than let somebody else come in my jurisdiction and do it for me.

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