Prosecutorial discretion regarding abortion-related offenses post-Dobbs.

Since the Supreme Court’s decision in Dobbs, nineteen states have banned abortion or restricted abortion to early-in pregnancy. However, just because restrictions are being put in place does not mean that pregnant people are no longer seeking abortions. Studies show that making getting an abortion illegal doesn’t eliminate the need for them. Since Dobbs, the abortion rate in the United States has been “similar if not higher” than the abortion rate before Roe v. Wade was overturned.

What has changed is prosecutors’ ability to seek criminal charges against pregnant people for abortion-related offenses. Post-Dobbs, abortion providers and patients alike are potentially subject to criminal charges related to abortion care. By making abortion a state-by-state issue, Dobbs gave the decision-making on whether abortion would be criminalized to local prosecutors. 

Like with other charging decisions, prosecutors have the power of discretion to decide whether or not they will pursue criminal charges against a person who they believe terminated their pregnancy in a manner that is inconsistent with their state’s regulations. Some elected district and state’s attorneys post-Dobbs publicly committed to not prosecuting individuals who get abortions or abortion providers, noting that their legislatures may choose to criminalize abortion, but ultimately charging decisions lay with them.  However, this exercise of discretion has not been without pushback. One of the elected state attorneys in Florida who signed onto a pledge committing to not criminalize abortion, Andrew Warren, was suspended from his position by Florida Governor Ron DeSantis for “ignoring the law and not following [his] duties.”

Other district attorneys have embraced the criminalization of abortion and abortion providers. The attorney general of Alabama, one of the states that banned abortion following the Supreme Court’s decision in Dobbs, Steve Marshall threatened to prosecute groups that assist pregnant people in receiving out-of-state abortions. Even before the Supreme Court overturned Roe v. Wade, some prosecutors in states passing anti-abortion laws took the position that individuals “should prepare for the possibility that they could be criminally prosecuted for having an abortion” and that “if you look at it from a purely legal standpoint, if you take the life of another human being, it’s murder.”

As state legislatures criminalize abortion, local prosecutors’ power to prosecute will only continue to rise. For example, Idaho’s legislature passed a law criminalizing the act of assisting a child travel to another state for an abortion. Beyond legislation that explicitly criminalizes abortion, many states are also enacting fetal personhood laws that allow prosecutors to investigate women who they suspect of using receiving an abortion or helping another receive an abortion. These laws broaden the scope of abortion-related activity that prosecutors can charge individuals with crimes.

One of the primary problems with increased prosecutorial discretion is that it heavily contributes to racial disparities in the criminal legal system and is responsible for inequities in every step of the criminal legal process, from charging decisions, to plea offers, to sentencing. Poor women of color, particularly poor Black women, have disproportionately been charged with pregnancy-related offenses. As states pass legislation increasing the power of prosecutors to charge individuals with abortion-related offenses, it will be essential for prosecutors’ offices to acknowledge and address the racial disparity that already exists in the prosecution of pregnancy-related crimes to avoid the same inequity in their prosecution of abortion. 

As prosecutors navigate a new reality in the charging of abortion-related offenses post-Dobbs, district attorneys’ offices across the country will have the power to shape the impact their policies have on individuals who can become pregnant.