As more states pass restrictive abortion laws, cities are fighting back. Among the resistance: local prosecutors who say they will not enforce the laws.
When Alabama passed its near-total ban on abortion in May, it was clear that lawmakers’ goal was to set up a court challenge on abortion law that could go all the way to the top of the U.S. judicial system.
But in a number of states that have passed restrictive new abortion laws, local prosecutors and governments aren’t waiting for the Supreme Court. Their states may have new laws, but that doesn’t mean they’re going to enforce them.
“Our office will not serve as an enforcement mechanism for what is a facially unconstitutional law,” announced Salt Lake County District Attorney Sim Gill in May, referring to the state’s new law banning abortion after 18 weeks. “Especially one that will deprive somebody of their liberty. That’s our ethical duty and there is really no choice in it.”
Gill is the chief prosecutor in the county with Utah’s only two abortion clinics, meaning the law would have very little potency so long as Gill refuses to enforce it. For now, Gill won’t have to compromise: He’s obtained a temporary federal court order ensuring his office does not have to enforce the measure as the case makes its way through the courts.
In Georgia, which passed an even more stringent bill than Utah’s that bans abortion once a fetal heartbeat has been detected, the district attorneys in the four most populous counties—Cobb, Gwinnett, Fulton, and DeKalb—have said they will decline to prosecute violations of the new law. The Macon district attorney, David Cooke, took it a step further, saying he would also decline to prosecute doctors.
“Our practice has been one of supporting and protecting women who are in crisis—not prosecuting them,” said Cooke. “I am going to exercise my discretion to not prosecute women and doctors for exercising their constitutional rights.”
Under Georgia’s new law, which effectively bans abortion at around six to eight weeks, a woman suffering from a miscarriage could be investigated to see if an illegal abortion had been performed, Cooke said. Not only does this leave some fuzzy questions about whether the law would ever permit prosecution of women and not just doctors, according to Cooke, but, he said: “This law could turn a miscarriage into a crime scene. Having loved ones who have lost a child that way, I know there is a lot of self-blame to begin with, and I just couldn’t imagine using the power of the state to enforce an unconstitutional law on women and girls in crisis.”
Jaira Burke, campaign manager for reproductive rights advocacy organization Amplify GA, has mixed feelings about district attorneys voicing their opposition to recent abortion bans. Burke isn’t critical of attorneys who speak out against the ban, but she is concerned about potential unintended negative consequences. “This can galvanize other prosecutors to do the exact opposite and pledge to prosecute pregnant people, although many attorneys don’t believe the intent of the law is to criminalize pregnant people in the first place,” she said. “Overall, this can lead the law and the way it’s practiced and enforced to be a vehicle for political statements as opposed to being something that is objective and fair.”
Cooke, the Macon district attorney, was adamant that this isn’t a political matter to him. “Activism is outside my role as DA,” he said. “My role as DA is to decide how to get justice for our community—how to hold those that threaten our families and the safety of our community accountable. So, that is what I was doing when I made my position known about this law.” He added, “To me, this wasn’t about politics. This was about the constitution and fundamental rights. I took an oath to uphold the United States constitution. This law is unconstitutional on its face, and I’m not going to enforce it.”
The refusals by prosecutors are perhaps some of the strongest statements against these new abortion laws, having a tangible and immediate effect on how the laws play out. But they’re far from the only steps taken by local officials, who are also using their platforms to engage in other forms of resistance.
In Georgia, Atlanta’s city council voted unanimously to sign a resolution expressing the city’s opposition to the heartbeat bill. The resolution is awaiting the mayor’s signature.
In response to another “heartbeat law” in Ohio, the Cleveland Heights City Council is exploring a similar resolution, but with an additional directive calling on the city’s law department to support legal challenges. And the Dayton city council took action to try to preserve the city’s only abortion clinic by passing a resolution urging local hospitals, Kettering Health Network and Premier Health, to sign a transfer agreement with the city’s abortion clinic to make sure the clinic can stay in compliance of the law.
Tara Sweeney, of the National Institute for Reproductive Health, conceded that city council resolutions are often non-binding and can only do so much to push back against state restrictions. “But what they are is an embodiment of the values that the leadership of a city holds,” she said. “For a city council, especially in a restrictive state, to present a resolution opposing a restriction that its state has passed sends a powerful message to the residents of that city. It shows there are leaders who are thinking about the health and well-being of city and state residents even when it looks like leaders on a state level are not taking that into account.”
Meanwhile, several of these state laws have already been temporarily blocked by the courts. “Heartbeat bills” that ban abortion after six or eight weeks—when many women don’t even yet know they’re pregnant—have been halted by courts in Mississippi and Kentucky. And Georgia’s 18-week ban, too, was recently blocked by a court.
Sweeney pointed out that other tactics cities have used in the past are tailored to help women overcome particular barriers to abortion access in their community. Columbus, Ohio, for example, has established buffer zones, which prevent protesters from obstructing entrances to abortion clinics and protect patients from potential harm.
“The most important thing in all these cities is to consider what the barrier to access is. Is it funding? Is it physically being able to get into the clinic? Is it the safety of patients and providers? There are various things any city can do to try to mitigate any of those barriers,” she said.
In Atlanta, this has meant pushing to decriminalize “self-managed” abortions, in which women use medication to terminate their own pregnancies at home. The effort was underway prior to the heartbeat bill, but its recent passage has expedited advocacy, said Burke, of Amplify GA. “Now there’s a time sensitive stamp on it,” she explained.
Burke continued, “This is about how we can be proactive and think about municipal policy in new ways rather than just the limitations that exist. Let’s think about some of the areas where cities have the legal right and enforcement power to increase and expand access.”