Jurisprudence

Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail

A woman and four children walk toward the entrance of a building labeled as the Starr County Jail.
People arrive at the Starr County Jail, where Lizelle Herrerra, 26, was charged with murder for allegedly performing what authorities called a “self-induced abortion,” in Rio Grande City, Texas. Reuters

This story was produced in partnership with the Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 90 elected prosecutors signed a letter written by the reform-minded Fair and Just Prosecution pledging to refuse to prosecute “those who seek, provide, or support abortions.”

While 90 prosecutors is just a fraction of the more than 2,000 district attorney offices across the country, the signatories represent some of the most populous places in the U.S., with about 40 million to 50 million Americans living in their districts. In many cases, these district attorneys serve in states like California, Illinois, and New York that are unlikely to criminalize abortion. But about 25 percent of all Texans live in counties whose prosecutors signed on to the letter, and likewise about 20 percent of those who live in Georgia. Not to mention that doctors in these counties could provide services to those in nearby counties, expanding the reach of the refusal to prosecute.

Advertisement
Advertisement
Advertisement
Advertisement

But the grim post-Dobbs reality is not a story of prosecutorial power; instead, it sheds light on the broader limitations inherent in relying on prosecutors as engines of criminal legal reform, which remains the case even in fairly liberal, progressive cities.

District attorneys have no control over civil actions, both private and public. For most of criminal law, such cases rarely if ever occur (even though almost all victims could privately sue their injurer for tort damages). But S.B. 8 in Texas—known as the “bounty” law since it was enacted in September—goes beyond the usual tort regime to encourage people to seek out steep civil damages against patients and doctors alike, and there is nothing prosecutors can do to stop this. And similar laws have since been adopted in Oklahoma and Idaho. There is also nothing prosecutors can do to stop state medical licensing boards from stripping licenses from doctors found to be providing abortions outside the narrow health-of-the-mother exception anti-abortion states so far have included.

Advertisement
Advertisement

There are also meaningful limitations prosecutors face when it comes to criminal cases as well—limitations that apply well beyond the scope of abortion cases. To start, they can only decline to file charges, but they cannot prevent the police from making an arrest. And even if prosecutors drop the charges, the arrest remains on the person’s record, thus interfering with efforts to get loans or mortgages, obtain jobs, secure adoptions, and any other activity involving a background check. These records can be hard to expunge. In Texas, the general rule is that a person cannot apply to have an arrest that resulted in a declination expunged until the statute of limitations has expired. For the charges patients and doctors are most likely to face—manslaughter and murder—there is no statute of limitations. Thus any arrest will be a permanent mark for a horrible crime that the patient or doctor will never be able to make disappear.

Advertisement
Advertisement
Advertisement
Advertisement

That’s before getting to the real costs of arrests themselves. Arrests among patients getting abortions will almost certainly overtarget women of color; there’s no reason to assume that abortion-related arrests will somehow be the one category of criminal legal enforcement that overcomes our nation’s deeply rooted history of racially biased enforcement. So enforcement not only will exacerbate preexisting legal biases but will harm a population with elevated maternal-health risks. Arrests themselves can be traumatic: One recent survey reported that a majority of Black respondents said they would rather be the victim of a robbery or burglary than searched by the police.

And an arrest that produces no physical harm can still have real psychological costs, especially in abortion cases, which will expose vulnerable people to shame and stigma. As well, even short stints in pre-trial detention can have lifelong impacts; given that most patients who seek abortions already have children of their own, the costs to them (like loss of custody) could be even greater than what most studies have suggested.

Advertisement
Advertisement

And while it is true that in the pre-Roe era, law enforcement mainly targeted doctors, a recent Atlantic article by Melissa Jeltsen pointed out that even pre-Dobbs, states increasingly criminally charged women thought to have jeopardized fetal health, suggesting that post-Dobbs politics are more hostile toward patients than our pre-Roe past suggests.

Advertisement
Advertisement

Those who provide abortions—who are more likely to be men, and more likely to be white—may expect less severe treatment at the hands of the police, but the costs of an arrest are still serious, and in some cases the economic harm and social ostracization may be greater. Regardless, unlike women seeking abortions, the doctors who provide them can simply walk away from the practice. But this significantly smaller total cost may still have a much bigger impact on their willingness to incur the risks that come with providing abortions, even if they know they will not be prosecuted. “That fear of punishment aligned with the lack of clarity can lead to devastating consequences,” Louisiana’s former health secretary said.

Advertisement
Advertisement

The costs of policing do not just exist in abortion cases; in all cases of “de-prosecution,” the prosecutor can only stop the criminal legal costs from advancing; district attorneys can do nothing to undo the legal and human costs of the arrest itself. For reformers, however, Dobbs provides the opportunity to stress these costs in a powerful, salient way. At a time when most urban mayors are centrist Democrats pushing to expand policing  in response to the rise in violence over the past two years, it is important to point out that police budgets and abortion access are not distinct issues. Especially in red states, expanding police powers post-Dobbs will also further restrict abortion access—which is obviously a feature, not a bug, to those who favor the outcome in Dobbs.

Advertisement
Advertisement

It is telling that while reform-minded prosecutors were quick to announce their refusal to prosecute, I have yet to see anything similar from mayors pledging that their police will not make arrests. There may be  perhaps just one or two exceptions, but certainly nothing like the collective statement we saw with prosecutors, even though such a commitment with regards to policing would be far more significant because police commissioners (though not directly-elected county sherriffs!) are the at-will employees of mayors, and because mayors and city councils control police budgets.

The other limitation that prosecutors face is the ever-present threat of pre-emption—the ability of state legislatures to enact laws that undermine local autonomy. Pre-emption has been a growing threat to blue-city criminal legal reform in red states for several years, with states making it harder for cities to reduce police spending or react with less aggression to political protests, and easier for more-conservative law enforcement officials to take cases away from reform-minded prosecutors.

Advertisement
Advertisement
Advertisement

Indeed, the ink was barely dry on the Fair and Just Prosecution post Dobbs letter when the Texas legislature began to contemplate preempting local district attorney refusals to prosecute cases. Right now, they are apparently considering whether to allow district attorneys in nearby counties to prosecute abortion cases that arise in counties that refuse to prosecute such cases. Moreover, states could expand their “supersession” laws, which give state attorneys general the right to prosecute certain local criminal cases, to cover abortion cases. In red states, this has been a tool to push back against local reforms; if even fairly blue states like Pennslyvania have given the state AG the right to commandeer gun cases from Philadelphia (and only Philadelphia), it would be surprising to see red states not give Republican AGs the right to take over abortion cases in bluer cities.

Advertisement
Advertisement
Advertisement

And—again—these cases will likely target providers, so it will likely not take many prosecutions to deter most providers from taking risks in reproductive care; that state AG offices may not have large budgets for such cases will thus likely be fairly immaterial. And that’s before we get to even more direct legislative attacks from state legislatures on progressive prosecutors, such as the on-going effort in Pennsylvania’s GOP-dominated legislature to impeach Philadelphia DA Larry Krasner (or the effort by Republican legislators in New York to pass a recall law so that they can target Manhattan’s Alvin Bragg).

As is the case with policing, the issue here isn’t that the politics or policy are any different with abortion than with broader state-level resistance to local reform. Dobbs, however, may make this sort of pre-emption far more politically salient—which could help generate some political resistance, or may serve as a way of educating more-conservative states about just how easy it is to rein in reforms in their more-liberal cities, abortion-related or otherwise.

Advertisement
Advertisement

This is not to say that there is nothing that can be done at the state level (absent a federal-level ban, the Constitutionality of which is well beyond the scope here). Even mayors who aren’t willing to promise not to arrest abortion providers can think more carefully about budgeting for police, or can at least consider how certain surveillance choices or data-retention policies may make arrests or prosecutions easier or harder. At the same time, cities are generally legally powerless against a state government set on gutting home-rule decisions. In fact, it’s possible that with hindsight the Fair and Just Prosecution letter may be seen as a net harm: by publicly stating their defiance of state laws, rather than quietly refusing to prosecute all cases in a formally case-by-case way, the signatories may have mobilized some state legislatures to clip their wings.

Advertisement
Advertisement

Nothing here, however, should be read to mean that there is no hope—just that political time and energy need to be focused where they can have their biggest impact. It’s true that prosecutors have often been seen as the leaders in the push for reform, in part because their elections can focus attention on the faults in the criminal legal system, but also in part because of the power they have traditionally wielded. But the creeping preemption that preceded Dobbs, and the even stronger willingness to override home rule that is coming in its wake, highlights critical limitations that prosecutorial-centered reform faces. These shortcomings in the abortion-access context thus highlight the broader issue that the long-run success of criminal legal reform like rests on changing the politics on either side of the prosecutor: among legislators, who hold almost all the cards in a world of preemption, and among police, whose local enforcement power is much harder to effectively preempt.

Advertisement