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Barrett confirmation means Roe is at risk, and prosecutors need to step up

Miriam Aroni Krinsky  |  Opinion contributorplay

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Amy Coney Barrett confirmed to U.S. Supreme Court ahead of election

Amy Coney Barrett was President Donald Trump’s third Supreme Court nominee, following Associate Justices Brett Kavanaugh and Neil Gorsuch.

Monday’s confirmation of Amy Coney Barrett has given the U.S. Supreme Court a conservative supermajority, making the longstanding anchor of Roe v. Wade — the landmark decision enshrining a woman’s constitutional right to have an abortion without the excessive interference of government — anything but certain.

As we confront a reality where the rights of women across this country to make their own health care decisions is under attack, elected state and local prosecutors are an increasingly critical defender of these essential reproductive rights. And now, nearly 70 of them are standing together in pledging to not criminalize abortions.

This exercise of prosecutorial discretion could not be more timely.

In June, Tennessee passed a “heartbeat” law imposing extreme restrictions on performing abortions, including bans on the procedure as early as six weeks. The law carries draconian penalties, with providers who are convicted facing prison time of up to 15 years and fines up to $10,000. But Nashville District Attorney Glenn Funk spoke out — refusing to enforce a “criminal law … used by the state to exercise control over a woman’s body.” 

Dozens of elected prosecutors across the country, including 11 attorneys general, are joining this chorus, making clear that even if abortions were no longer constitutionally protected, “it is imperative that we use our discretion to decline to prosecute personal health care choices criminalized under such laws.” 

If Roe is overturned, the country could become a patchwork of abortion access. Thirteen states and Washington, D.C., protect the right to an abortion by law or within their constitutions, while 21 states have laws heavily restricting abortion, many with harsh criminal penalties for performing, having or assisting someone in obtaining an abortion. These abortion bans — such as in Alabama, Arkansas and Tennessee — are held at bay as long as Roe stands. But if Roe falls, they’ll swiftly become relevant, and suddenly local prosecutors will be on the front lines of reproductive justice.

Abortions won’t stop because they’re criminalized.

Instead, women with the means to do so will travel across state lines; those not able to do so might seek dangerous treatments that put their lives at risk, or purchase pills off the internet or through other networks to self-administer abortions.

We have already seen a preview of what criminalization looks like: In many states where legal abortion is highly restricted, women have been prosecuted for allegedly “self-administering abortions,” despite evidence that these occurrences are challenging to distinguish from miscarriages — discouraging women who miscarry from seeking necessary care. 

This scenario will leave local prosecutors with a weighty decision: Carry out witch hunts in emergency rooms for alleged abortions (leading to possible wrongful convictions), or choose to exercise their discretion more wisely.

Prosecutorial discretion is the essence of a prosecutor’s job. No prosecutor has the resources to prosecute every offense in her jurisdiction. And a new generation of prosecutors, relying on data as well as a new vision of justice from their communities, have chosen to prioritize prosecuting serious harm over low-level offenses that don’t impact public safety. In the wake of pandemic austerity, prosecutors already face the challenging task of stretching taxpayer dollars further than ever.

Meanwhile, voters across the United States are calling for leaders to shift resources from criminalization to community-led prevention and public safety efforts. Prosecuting personal health care choices will further strain limited criminal justice resources, divide communities and damage what little trust remains in law enforcement.

With confidence in police at an all-time low, it’s imperative that prosecutors do whatever they can to fortify public trust in law enforcement.

Half of Americans say abortion should be legal under certain circumstance, while 29% say it should be legal under any circumstances. Prosecutors rely on community cooperation to investigate crimes and protect public safety. Deeply alienating half or more of the community for little public safety benefit stands to have serious public safety consequences.

Finally, prosecution of abortions will criminalize and re-traumatize many of the most vulnerable people prosecutors are sworn to protect, including victims of sexual assault denied access to abortions under some state bans. Limited prosecutorial resources are better spent on the perpetrators of sexual assault crimes, rather than victims or health care professionals who provide needed care.

If Roe falls, prosecutors will be the last line of defense — their discretion could spell the critical difference for women victimized by rape, incest and abuse, and forced to choose between an untenable situation and the threat of criminal prosecution.

With the future of Roe now less certain than ever, we urge more elected prosecutors to join their colleagues in taking a stand to protect everyone in our communities by disavowing efforts to criminalize personal health care choices.

Failing to do so endangers us all.

Miriam Aroni Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution, a national network of elected prosecutors working toward commonsense, compassionate criminal justice reforms.

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