As the nation grapples with states’ newly acquired authority to regulate abortion in the wake of the U.S. Supreme Court’s ruling this summer, state attorney general candidates are staking claims on what they’ll do to fight or protect access to abortion, which is garnering both money and votes.
According to Kris Mayes, a Democrat running for attorney general in Arizona, the Dobbs ruling has “energized and turbocharged” the election. People’s fury is palpable; you can sense it in the air.
However, they may not be the only ones challenging the laws. In many states, the capacity of the attorney general to prosecute illegal abortion cases ends at the doorstep of the local prosecutor. These attorneys, known as district attorneys, prosecutors, and many other titles around the country, would make the ultimate judgments regarding whether criminal charges may be filed against persons seeking abortions or the medical professionals who give them, rather than the attorneys general.
States such as Delaware and Rhode Island have different attorney general and local prosecutorial organizations, according to David LaBahn, president and chief executive officer of the Association of Prosecuting Attorneys.
Several Democratic district attorneys in Georgia have stated that they will not prosecute anyone who violate a state law that prohibits most abortions after six weeks. Although abortion is already a factor in the election for attorney general, this office has minimal authority to intervene and prevent such municipal choices.
Democrat Dana Nessel, who is vying for re-election as attorney general of Michigan, has stated that she will not enforce a challenged 1931 state abortion prohibition that does not provide exceptions for incest or the health of the mother. And on Friday, a state court thwarted an effort by local Republican prosecutors to prosecute anyone under this provision.
Michigan Attorney General Dana Nessel
5 March 2020 file photo of Michigan Attorney General Dana Nessel holding a press conference in Lansing, Michigan.
Kimberly Graham, a Democratic candidate for county attorney in Iowa, has stated that she would not prosecute physicians or anyone providing abortion services. She remarked that the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization demonstrates how few individuals are aware of the “terrifying amount of discretion and power” prosecutors possess.
She stated, “The only true responsibility for that is the voting box” Hopefully, people will start paying more attention to county attorney and district attorney contests and realize how crucial these roles have always been.
It is unclear how many county and district attorneys will choose to enforce or oppose their state’s abortion legislation. Former Maine Attorney General and current Harvard Law School professor James Tierney, a Democrat, stated that this creates an unsettled legal picture. He stated, “We’re talking about actual anarchy here.”
Some authorities have tried to expand the authority of state attorneys general and governors to seek criminal charges against abortion providers and groups that facilitate abortion access.
A Texas legislation due to go into effect in late August would give Attorney General Ken Paxton the authority to overrule local district attorneys and pursue providers and abortion charities that donate money to those seeking abortion services. Paxton, who is now campaigning for re-election and is indicted on securities fraud charges, has previously offered his office’s resources to local district attorneys who desire to prosecute abortion providers.
Attorney General of Texas Ken Paxton
On November 1, 2021, Texas Attorney General Ken Paxton addresses anti-abortion demonstrators during a demonstration in front of the U.S. Supreme Court in Washington, D.C.
Republican Florida Governor Ron DeSantis dismissed State Attorney Andrew Warren on August 4 for allegedly refusing to enforce state laws on a variety of subjects, including abortion.
Paul Nolette, chair of the political science department at Marquette University, anticipates that other states will give attorneys general more authority and strip prosecutors of their local jurisdiction.
Even as power battles intensify, candidates for attorney general claim that people do not comprehend the office’s authority boundaries and that voter participation in their contests remains strong. This year, thirty states are holding elections for attorney general, including tight contests in Arizona, Georgia, Iowa, Michigan, Nevada, and Wisconsin.
Jen Jordan, a Democratic state senator running against incumbent Republican Georgia Attorney General Chris Carr, stated that people “trust what the bearer of the position says or does to be the true duty of the attorney general” However, she admitted the office’s limitations: “I cannot guarantee that a woman would not be prosecuted by a local district attorney, as their constitutional authorities are distinct.”
Nolette stated that the abortion dispute arises when state attorneys general have become more activist and acquired influence in the political system. Nolette said that in recent years, as a result of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which permitted corporations and donor groups to spend an unlimited amount of money on elections, attorneys general have prioritized partisan battles over more traditional aspects of their jobs, such as consumer protections.
“This is part of the AGs on both sides becoming legal cultural fighters,” he added.
Emily Trifone, a representative for the Democratic Attorneys General Association, stated that the Dobbs ruling raised interest in funding to Democratic attorney general candidates. Trifone reported that on the day the decision was announced, the organization raised 15 times as much money as the day before. Additionally, it outraised the traditionally dominating Republican Attorneys General Association during the quarter in question.
Before Dobbs, Michigan’s Nessel thought that no one was paying attention to her reelection campaign. Her Republican opponent, Matt DePerno, has stated that he will support the state’s controversial 1931 statute that enables providers to be charged with criminal homicide. In response, her campaign released an advertisement underlining his opposition to abortion ban exceptions in circumstances of rape or incest or to save the patient’s life. Since the Dobbs ruling, Nessel has moved from a statistical tie to a tiny lead in the polls.
In light of the Dobbs decision, the term-limited Mark Brnovich, the Republican attorney general of Arizona, has attempted to reinstate a state abortion ban that was suspended in 1973 following the Roe v. Wade decision. Mayes, the Democratic candidate, contended that the measure breaches the privacy provisions of the Arizona state constitution and vowed to “fight like hell” to prevent its implementation. Her Republican opponent, former Maricopa County prosecutor Abraham Hamadeh, has stated that he will enforce it, which Mayes says the Arizona attorney general is able to do.
According to a study conducted by media monitoring firm Kantar/CMAG through August 14 at KHN’s request, the majority of broadcast TV advertisements in attorney general elections this year have not addressed abortion. However, it is still early in the election season. The Democratic Attorneys General Association has just begun a five-figure digital ad campaign about abortion in Texas, Michigan, and Nevada.
The Kantar/CMAG research revealed that 10 times as much money has been spent on attorney general campaign advertising with pro-abortion rights attitudes as on ads with anti-abortion rights emotions.
Brian Robinson, a veteran Republican operator in Georgia, has observed a disparity between the advertisements’ references to abortion and reality. Robinson stated that Democratic candidates feel it is beneficial to their campaigns to continue discussing Lou Dobbs, whilst Republicans believe they have already handled the subject. Robinson stated, “We will not play that game.” We will discuss both crime and the economy.
Peter Bisbee, the executive director of RAGA, stated in a statement that elected state lawmakers determine abortion policy and that Democratic attorneys general should uphold state laws.
Nessel emphasized that local prosecutors have always had the authority to charge or not charge based on their judgment. She said that this includes adultery laws on the books.
Pete Skandalakis, a former Republican district attorney and the head of the Prosecuting Attorneys’ Council of Georgia, stated that it might take some time to determine how these local prosecutors would proceed since they have a backlog of cases exacerbated by the covid-19 outbreak.
“We are currently strained beyond our means,” he remarked. “We’re not even trying to keep up; we’re just attempting to stay afloat.”
KHN (Kaiser Health News) is a national news organization that delivers in-depth health-related journalism. KHN, with Policy Analysis and Polling, is one of KFF’s three primary running programs (Kaiser Family Foundation). KFF is an endowed nonprofit organization that provides information on national health concerns.