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

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My latest in @Slate: Progressive prosecutors can’t really fight the coming wave of abortion criminalization.

Police decisions matter far more, however, which should shape how pro-choice centrist Dems think abt police reforms more broadly.

slate.com
Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail
For starters, anti-abortion lawmakers are already finding ways to work around their local district attorneys' offices.
10:09 AM · Jul 13, 2022

https://slate.com/news-and-politics/2022/07/roe-v-wade-progressive-prosecutors-women-abortion-jail.html

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 proscute “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.

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.

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.

*snip*