Abortion Is Shaking Up Attorneys General Races and Exposing Limits to Their Powers

Yves here. This is so disheartening to watch…the widening gulf over abortion rights, the way restrictions or even threats of restrictions are also hurting gynecological and maternal care, and the way this fight is taking energy out of addressing the existential issue of climate change/mass species dieoffs, as well as salvaging social programs.

By Lauren Weber, Kaiser Health News Midwest Correspondent, who formerly was a health policy reporter for HuffPost, and Sam Whitehead, Kaiser Health New Correspondent, who previously worked as a health care reporter for WABE. Originally published at Kaiser Health News

As the country grapples with states’ newfound power to regulate abortion in the aftermath of this summer’s U.S. Supreme Court decision, state attorney general candidates are staking claims on what they’ll do to fight or defend access to abortion — and that’s attracting cash and votes.

“By pretty much every indicator there is in a campaign, the Dobbs decision has energized and supercharged our race,” said Kris Mayes, a Democrat running for attorney general in Arizona. “People are outraged about this, and you can feel it in the air.”

But they aren’t the only ones who may be testing the laws. The winners of local prosecutorial races will also shape the legal landscape, and, in many states, an attorney general’s ability to bring criminal abortion cases to court ends at a local prosecutor’s doorstep. Called district attorneys, prosecutors, and various other names across the country, these lawyers — not the attorneys general — would make the final decisions on whether criminal charges can be brought against people seeking abortion or the medical professionals that provide them.

The exceptions include states such as Delaware and Rhode Island, which have distinct attorney general and local prosecutorial structures, said David LaBahn, president and CEO of the Association of Prosecuting Attorneys.

In Georgia, several Democratic district attorneys have said they won’t prosecute people for violating a state law that bans most abortions starting at about six weeks. Although abortion is already figuring into the attorney general race, that office has limited power to step in and stop such local decisions.

Michigan’s attorney general, Democrat Dana Nessel, who is running for reelection, has said she would not enforce a contested 1931 state abortion ban that does not provide for any exceptions in situations like incest or for the health of the mother. And on Friday, a state judge blocked an effort by local Republican prosecuting attorneys to charge people under that statute.

Democrat Kimberly Graham, an Iowa county attorney candidate, has declared that she would not prosecute doctors or people for abortion care. She noted that the Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization has highlighted how little people realize the “scary amount of discretion and power” prosecutors have.

“The only real accountability to that is called the ballot box,” she said. “Hopefully, among other things, people will start paying more attention to the county attorney and DA races and realizing how incredibly important these positions have always been.”

It’s not clear how many county attorneys and district attorneys will decide to enforce or fight their state abortion policies. But that leads to an uncertain legal landscape, said former Maine Attorney General James Tierney, a Democrat who is now a Harvard Law School lecturer. “We’re talking real chaos here,” he said.

Some officials have worked to give more jurisdictional powers to attorneys general and governors to bring criminal cases against people who provide abortions and organizations that help people access abortions.

A Texas law set to take effect in late August will give Attorney General Ken Paxton the power to override local district attorneys and go after providers and abortion funds that give money to those seeking abortion care. Previously, Paxton, who is running for reelection and is under indictment on securities fraud charges, has offered his office’s resources to local district attorneys who wish to prosecute abortion providers.

On Aug. 4, Florida Gov. Ron DeSantis, a Republican, suspended State Attorney Andrew Warren for what he said was a refusal to enforce state laws on a range of issues that included abortion.

Paul Nolette, chair of the political science department at Marquette University, said he expects other states to give attorneys general more power — and take away local control from prosecutors.

Even as the power struggles ramp up, candidates for attorney general say that voters don’t really understand the limits on the office’s authority and that voter engagement in their races remains high. Thirty states have attorneys general slots up for election this year, with close races in Arizona, Georgia, Iowa, Michigan, Nevada, and Wisconsin.

Jen Jordan, a Democratic state senator who’s running to unseat incumbent Georgia Republican Attorney General Chris Carr, said voters “see what the holder of the office says or does and then begin to believe that is the actual role of the attorney general.” But she acknowledged the limits of the office: “I can’t make a promise that a woman would not be prosecuted by a local district attorney, because they have separate constitutional powers.”

The abortion fight comes as attorneys general have become more activist and gained power in the political system, Nolette said. In recent years, as money poured into races after the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission — which allowed corporations and donor groups to spend an unlimited amount of money on elections — attorneys general have emphasized their partisan fights over more traditional aspects of the job, such as consumer protections, Nolette said.

“It’s part of the AGs becoming the legal culture warriors on both sides,” he said.

The Dobbs decision increased interest in donating to Democratic attorney general candidates, said Emily Trifone, a spokesperson for the Democratic Attorneys General Association. Trifone said that the day the decision was released, the group raised 15 times what they did the day before. It also outraised the usually dominant Republican Attorneys General Association in that quarterly filing period.

Michigan’s Nessel said she felt as though no one was paying attention to her reelection race until Dobbs. Her Republican challenger, Matt DePerno, has said he would uphold the state’s contested 1931 law, which allows felony manslaughter charges against providers. In response, her team put out an ad highlighting his remarks opposing abortion ban exceptions in cases of rape or incest or to save the life of the patient. Since the Dobbs decision, Nessel went from being neck and neck in polls to having a slight lead.

In the wake of the Dobbs ruling, the term-limited Arizona attorney general, Republican Mark Brnovich, has tried to revive a century-old state abortion ban that was put on hold in 1973 after Roe v. Wade was decided. The Democratic candidate, Mayes, argued the law violates the privacy guarantees in the Arizona state constitution and said she would “fight like hell” to keep it from taking effect. Her Republican opponent, former Maricopa County prosecutor Abraham Hamadeh, has said he would enforce it, which Mayes said the attorney general can do in Arizona.

Thus far this year, most broadcast TV ads in attorney general races haven’t mentioned abortion, according to an analysis run through Aug. 14 by media monitoring firm Kantar/CMAG requested by KHN. Yet it’s still early in election season. The Democratic Attorneys General Association recently launched a five-figure digital ad buy about abortion for the races in Texas, Michigan, and Nevada.

But 10 times as much money has been spent on attorney general campaign ads with pro-abortion rights sentiments compared with ads that have anti-abortion sentiments, the Kantar/CMAG analysis found.

The divergence on abortion mentions in the ads tracks with what Brian Robinson, a longtime Republican operative in Georgia, has seen. Democratic candidates want to keep talking about Dobbs because they feel as though it benefits their campaigns, Robinson said, while Republicans think they’ve already addressed the issue. “We’re not playing that game,” Robinson said. “We’re going to talk about crime and the economy.”

RAGA Executive Director Peter Bisbee said in a statement that elected state legislators decide abortion policy and that Democratic attorneys general should enforce the laws of their states.

Nessel pointed out that local prosecutors have always had the discretion to charge or not charge what they choose. That even includes adultery laws on the books, she said.

Still, it could take some time to see how those local district attorneys proceed as they face a backlog of cases made worse by the covid-19 pandemic, said Pete Skandalakis, a former Republican district attorney and head of the Prosecuting Attorneys’ Council of Georgia.

“We are stretched beyond our resources at this point,” he said. “We’re not even trying to keep up — we’re trying not to sink.”

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  1. ambrit

    Mz Smith’s opening remarks about how this socio-political controversy distracts from environmental concerns, I think misses the mark. A cynic would observe that, absent effective action fighting environmental degradation, that very environmental degradation will forge ahead and solve many of the other “problems,” simply by reducing the population.
    Anti-abortion laws will hardly dent the die off coming. We are at Peak Terran Human Population now. There is nowhere else to go but down.

    1. Carolinian

      I agree that this is just more distraction and the abortion kabuki theater going back decades–where the Republicans pretend to be against it and the Democrats pretend to defend it–is blowing up in their political faces. Here in SC our troglodyte legislature is pushing an abortion ban with the life of the mother the only exception. I don’t believe the state’s population in general is really in favor of such a law but certain passionate abortion opponents are, and our politicians think the passionate advocates are the kind of supporters they need. This model law is also being pushed by a nationwide anti abortion group.

      Of course if the law passes and is then ignored, is just an attempt to intimidate people, that will be one thing but if prosecutors truly begin to criminally charge those who help women to get out of state abortions or the pills then the lit fuse will reach the high powered bomb. And here’s arguing that none of this is really about abortion but rather a way for politicians to gain support without giving the public the concrete benefits and reform that they really want.

      The Dems will blame it all on the Supreme Court but while the SC should have left the issue alone the patchwork of state laws was already making abortion access difficult for a large part of the country and the court’s view that Congress should settle the matter was not unreasonable. One wonders if the Dems really did achieve strong majorities whether they would still find a way to not pass such a law. If the matter was settled they’d lose their kabuki.

  2. Stillfeelinthebern

    The power of the local prosecutor is frightening. It’s part of our legal system that causes much expense and angst for people who are innocently caught by the dogma of a single individual. And their actions change when election season comes around. DAs can easily get news coverage because so much of what is left in local news is policing, charging, court focused.

    That said, having all these races focus on a single issue, abortion access, may be the beginning of a turn where what the majority of people want (as we constantly see in polls) may actually be reflected in who gets elected.

    Kansas seems to be a signal. One can only hope that Medicare for all, family leave, sustainable ag and energy policies are right behind.

  3. Eclair

    Two observations here: A spate of writings have been appearing, here in posts and on other sites, regarding the conditions necessary for civil war/strife. One condition, if I remember correctly, was the coming into existence of opposing ideologies/beliefs that provided no room for compromise. Slavery became one of those conditions; compromise was attempted, with slaves being counted as three fifths of a free person, new states being designated as ‘slave’ or ‘free,’ but the abolitionist movement eventually demanded that all men be free. As if the slave-holders were going to give up their income source without a struggle.

    Are we on the way to that ‘no compromise’ condition in the matter of abortion, birth control and women’s health rights?

    And the second observation: being a woman, identifying as ‘female,’ with all the attendant cultural and biological drawbacks in our society, including rape and criminalization due to increasingly stringent anti-abortion laws, is becoming more dangerous.

    In our own family, two young women in their late teens/early twenties, are on non-traditional paths: one is lesbian (her own term) and one is non-binary. A third, a bit older, married, with a toddler and pregnant with their second child, has refused to live in Idaho, where her spouse has a new job, and insists on residing, officially, over the border in Washington.

    1. H. Alexander Ivey

      I would just add that it was the 1857 Dred Scott Supreme Court ruling by Taney – that no Afro-American is really free – that made it crystal clear that slavery was a go / no go issue.

    2. JBird4049

      It was not the Abolitionists who were responsible for the increasing tensions that started the war; Abolitionists, at first, were not strictly antislavery as much as pro-freedom in the United States; the ultimate goal was the elimination of slavery, but only the most radical, truly fringe abolitionists were pushing immediate and complete (or nearly so as even they preferred a planned, orderly emancipation of the millions of slaves).

      However, the pro-slavery supporters became increasingly radical absolutist even faster than the abolitionists to where any attempts to even moderate slavery was seen as a vile attack on their honor and theft. The bats—t insanity of the federal legislation a decade before the Civil War as well as the violent, partially successful efforts of advocates of slavery in spreading into into the Missouri Territory or what is now Kansas and Missouri as it was being split into several states also radicalized their opponents.

      Slavery became impossible for Northerners to ignore especially after the effective legalization of gangs of slavers and the increasing willingness by those supporting the Peculiar Institution to use violence to silence abolitionists. With dueling, beatings, and murder becoming common over the issue and increasing violence and corruption being caused directly by its enforcement it stopped being just about slavery and more about what kind of country we were going to have.

      More directly, when Southerners, really the Slavocracy of the elites, found that they could no longer get everything that they wanted, which was expanding slavery without any restrictions, by silencing the opposition, which refused to be silent, they took their marbles and left the game. Obviously, the succession was not successful.

      Do not think that fighting racism was the reason for the Civil War. It was the forcing of people to choose between whether they believed Blacks were human, and if so, should they be owned like one would a dog or a chair, and if not, what would they be willing to pay. Many people still thought of John Brown for being crazy for thinking of Blacks as the equal of any Whites, but many, if not most, did think that they were human beings and one does not own any human being.

      I believe both the extremist Pro-Life advocates who do not want to have any loopholes and the politicians of both parties as well as the various nonprofits who have been using the issue for monetary gains are both going to get hurt. This is going to force both thinking, reasonable people of both sides to think about what they are really willing to do, what changes are needed, and what personal risks they are willing to take. Honestly, I think that the leadership, really the grifership, of both opposing movements are a bunch of hypocritical users more concerned with political points and donations instead of why abortions do or do not happen. People just don’t wake up, find out they are pregnant, and decide to have an abortion or even to keep the baby on a whim. Community, family, jobs, housing, healthcare, even education in a real way make the decision for the woman. If she sees she has the resources, she will probably keep the baby. If she does have those resources, she is unlikely to become pregnant. And if she has those resources, which both parties refuse to give most Americans, she and any children she has, which both opponents and supporters claim that they care about, are likely to do well.

      Americans during the Civil War died by the hundreds of thousands. Does not matter which side. I could read the dry numbers and show the lines, piles, and mass graves of the dead. Shattered cities. Millions crippled, homeless, lost. I do wonder, if the those people who claim that the lives of children or a woman’s right to her body are so, so blasted important are willing to do the hard work necessary for both women and children to have a good life? Or is it only about the preborn or the right to choose and nothing else like why what happens, happens.

      1. Eclair

        Thank you, JBird4049. Your excellent description of the events leading up to the Civil War make one wonder about an alternate scenario: what would have been the path of the North American nations if the slave states had been allowed to secede. If Lincoln and the congress had said: ok, take your marbles and leave. Nice political science fiction series. (Or perhaps it has already been done? )

        I do take a small exception to your statement that, “Community, family, jobs, housing, healthcare, even education in a real way make the decision for the woman. If she sees she has the resources, she will probably keep the baby.” Perhaps I am misreading, but I would guess that a reasonable number of women, who have all these resources, become pregnant and decide that this is simply not the time to go through the next nine months. And 21+ years. It’s not like getting pregnant is always a rational business decision. So much can happen in the ‘heat of the moment.’ I speak from experience.

        I am not able to express this a a clearly logical manner, but removing the backstop of a ‘safe and legal’ abortion (as well as restriction birth control) results in young woman having always the niggling fear that a sexual encounter will have permanent effects. Kind of like killing off a few selected and outspoken journalists, and the ones remaining will unconsciously, as well as consciously, temper their reporting to conform to what they feel is the status quo.

  4. dday

    Politico recently covered Arizona politics. I laughed at their description of the Republican Attorney General candidate:

    “Abraham Hamadeh, a 31-year-old lawyer who has spent fewer days in a courtroom than many petty criminals…”

    1. Arizona Slim

      And here’s Slim, weighing in from Tucson.

      I have to say that I’m a bit biased toward Kris Mayes because I heard her speak a few years ago. It was on a different topic — solar energy — but I was impressed with her level-headed presentation.

      Given her stance on the Dobbs decision, and the fact that I favor bodily autonomy in all things, I’ll most likely vote for her.

  5. H. Alexander Ivey

    I would just add that it was the 1857 Dred Scott Supreme Court ruling by Taney – that no Afro-American can be a citizen with full rights – that made it crystal clear that slavery was a go / no go issue.

    Reply ↓

    1. H. Alexander Ivey

      To wit: as Dobbs stated that any Black American was always a slave (property), so does the Dobbs ruling state that American women are always a baby factory.

  6. Alan, The Philosopher

    I would add that the failure to compromise is largely, if not entirely, on the so called “pro-life,” movement, which like the pro-slavery movement before the Civil War, has become more and more uncompromising. Roe v Wade itself was a reasonable compromise allowing abortions but also recognizing the state’s interest mid-term and in late term pregnancies. I am unaware of any “reproductive freedom” advocates seeking “abortions on demand,” notwithstanding Trump’s claim in his debates with Clinton that she was in favor of abortions up to the moment of birth.

  7. Alan Roxdale

    “We’re not playing that game,” Robinson said. “We’re going to talk about crime and the economy.”

    Surely this is a prima facie admission by Republicans that Dobbs is polling like a lead balloon for them (Trump, ever ahead of the GOP voterwise, had flagged this early on). Middle America might sign at Sunday church, but they also keep prophylactics in their wallets, and like options on their tables.

    This points to the ultimate limits of special interests groups, lobbying, and Washington mores. Trumpet your policy as you might, when the rubber meets the road of the ballot box, voters will end up telling you what they really think.

  8. Starry Gordon

    There are many alternate histories; it’s a kind of game plus literary genre. In the case of the Civil War, one which I read a few years ago had the Confederacy winning its independence but not much else. As a result, it becomes an ally or dominion of the British Empire, while the Union (including the Southwest and California) ally with Germany in World War ~1. The latter combination, being stronger in North America, begin to knock off pieces of the South (border states, Florida, etc.) and Canada. I don’t recall what happens after that; maybe I can look it up.

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