Republicans Can’t Decide: Do They Hate Prosecutors Because of Bail Reform or Abortion?

The national right-wing attack on elected district attorneys has merged with the Republican project to criminalize abortion.

After the Supreme Court overturned the constitutional right to abortion in the landmark case Dobbs v. Jackson's Women's Health Organization, many Republican dominated state governments quickly moved to ban all or some abortions. Many of the populous cities in these state, however, are dominated by Democratic Party politics. In those cities, elected prosecutors pledged not to prosecute reproductive care, setting up a clash with state-level governments.

The clash came first in Florida, where in 2022, Republican Gov. Ron DeSantis became the first state official to suspended an elected prosecutor who said they would not charge people who sought abortions. In January, a three-judge federal appeals circuit panel said DeSantis's decision to suspend Former States Attorney Andrew Warren violated First Amendment provisions for protected speech, including Warren's comments on protecting abortion and transgender care.

Those prosecutors who have recognized that they have no place interfering with patients' personal decisions have found themselves under threat."

Since then, at least five states have introduced legislative measures to strip power from elected prosecutors who have made similar pledges. Over the last two years, Republicans in Georgia, Idaho, Indiana, South Carolina, and Texas have introduced or passed legislation making it easier to prosecute people who seek abortions.

As reproductive health care became criminalized in the wake of Dobbs, prosecutors around the country became a front line for this essential right," said Jill Habig, founder and CEO of the the Public Rights Project. Those prosecutors who have recognized that they have no place interfering with patients' personal decisions have found themselves under threat for that decision."

On Thursday, the Public Rights Project and Local Solutions Support Center released a report tallying and detailing a wave of new attacks against prosecutors vowing to defend abortion rights. The attacks target democratically elected prosecutors for routine speech about practices in their offices. In Florida, Warren was suspended in part because of his statements on the right to abortion. In Texas, lawmakers who launched a petition to remove Travis County District Attorney Jose Garza also cited his pledge not to prosecute abortion care.

The new research by Public Rights Project shows that the salvos against supporters of abortion rights are just part of a growing, nationwide right-wing effort to limit the powers of elected, reform-minded prosecutors. Since early 2023, there have been 53 attempts to restrict prosecutorial authority in 26 states - attempts that are increasingly effective, with 15 new measures enacted in the same time period.

Idaho, Georgia, and More

The recent pushes to strip power from prosecutors who support abortion rights have seen some successes. In Idaho, if an elected prosecutor has a policy in place not to prosecute violations of the state's abortion ban, a law enacted last year would give the state attorney general power to take over any related cases.

A similar bill was proposed in South Carolina last year but died in committee.

In Texas, at least four bills would create new and severe criminal offenses for abortion care and give the state attorney general power to bring criminal prosecutions and sue over related cases.

A Georgia law enacted last year gives a politically-appointed commission the power to remove and discipline elected DAs over decisions not to prosecute certain offenses, including abortions.

Other states have fought to curb the attacks on abortion care. A proposed bill in Wisconsin would give the state attorney general concurrent jurisdiction to take over certain prosecutions that target people who seek abortions under the state's law prohibiting abortions from 22 weeks.

In Arizona, state officials are deliberating on efforts to block the repeal of an 1800s-era abortion ban. Democratic Gov. Katie Hobbs issued an executive order in 2023 giving all duties related to prosecuting abortion care over to the state attorney general, a Democrat who supports protecting the right to abortion.

Tons of New Bills to Curb DAs

The anti-abortion measures are the outgrowth of a broader national attack on elected prosecutors who ran on reform policies. National Republicans have fomented and harnessed a backlash to candidates who ran on ending cash bail, declining to prosecute cannabis possession, overturning wrongful convictions and prosecuting police misconduct.

Last year, the Public Rights Project and Local Solutions Support Center released a report that outlined efforts to curb the power of reform-minded prosecutors. The research released about restricting prosecutors who vow to defend abortion rights was part of a new paper that updated last year's tally.

More than 37 bills to strip power from prosecutors were introduced in 17 states between 2017 and early 2023. Some singled out reform-minded DAs elected in places like Philadelphia and St. Louis.

Since then, the new research showed, the numbers ballooned to 53 attempts introduced in 26 states. Texas is home to at least 13 such efforts, including bills that further criminalize abortion and make it easier to file complaints against and investigate DAs who decline to prosecute certain offenses.

While the bulk of legislation introduced between 2017 and 2022 didn't pass, newer bills have been more successful. Fifteen new measures have been enacted in 14 states since last year.

Texas enacted a law last year that makes it easier to bring private lawsuits to remove prosecutors, Habig added. Now the state is following the example set by Georgia and considering creating a new government agency for the same purpose.

The bills introduced and passed in the last year show that the trend from 2017-22 has not stopped - in fact, it's only accelerating," Habig said. And states that have taken some efforts to restrict prosecutorial discretion have shown that they are not satisfied with their early steps."

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