Michigan’s attorney general, Dana Nessel, never thought she would have an abortion. But after finding herself pregnant with triplets in 2002, she faced an unenviable choice: abort one, or miscarry all three. “I took my doctor’s advice, which I should have been able to do,” she says in a phone interview.
Nessel plans to protect that same right for residents of her state if Roe v Wade is overturned this summer, as a leaked supreme court draft opinion indicates is all but certain.
If the draft opinion stands, 26 states are likely or certain to ban abortion . In Michigan, a 1931 law would be triggered, making abortion illegal in almost all cases except to save the life of the pregnant person.
Nessel says she won’t enforce the ban in Michigan, along with at least a dozen law enforcement officials across the country – a bold statement that sets the US up for a complex legal landscape with different enforcement regimes in different states, and even within them.
These officials are likely to face swift backlash from the right, including, in some cases, retaliation from state authorities who will demand they enforce the law as written. But they are determined to press ahead.
“I don’t want to see politicians removing the rights I had during the course of my pregnancy for other women,” says Nessel. Her opponent in the race for state attorney general this November, Matt DePerno, has said he would not support any exceptions to an abortion ban, even to save the mother’s life.
Now, Nessel has a complex set of legal questions on her hands – even if she is re-elected, and despite having Michigan’s governor on her side.
“How do we make sure that if complaints are filed, physicians won’t lose their licenses to practice medicine? [How do we] ensure insurance carriers don’t drop [them]?” she asks.
“I don’t want to see medical emergencies, where women are literally left to die on an operating table, because of an ectopic pregnancy, or complications in a pregnancy. I don’t want the doctor saying, ‘I’m out. I’m not going to risk losing my license … or going to jail,’” she says.
So she is working in conjunction with Governor Gretchen Whitmer, who is bringing a lawsuit asking the Michigan supreme court to protect abortion in the state’s constitution, and to get a voter-backed referendum on the books that will protect other reproductive rights, such as the right to contraception.
“We’re not helpless. And this is not hopeless. That’s the message that I want to send,” Nessel says.
***
Steve Descano was thinking about his 10-year-old daughter when he pledged not to enforce abortion bans in his home county of Fairfax, Virginia. Virginia is not one of the 26 states that will automatically ban abortion if the supreme court overturns Roe, but access could become tenuous.
Descano is worried about comments made by Virginia’s governor, Glenn Youngkin, who has described himself as “pro-life” and anti-abortion with exceptions for rape, incest and when the mother’s life is in jeopardy.
“I don’t want [my daughter] to grow up in a world where she’s a second-class citizen, where she can’t make her own healthcare decisions,” Descano said.
In a post-Roe landscape, Descano says, women could be regularly criminalized – investigated for miscarriages, with state officials rifling through their trash to learn about their sexual history.
“Police officers can get search warrants, they can go into emails, they can go into text messages,” he said. “If we take this strong stand it disincentivizes them from doing any of that,” he adds – vowing to protect providers in his county as well as people who seek out an abortion.
Descano and other progressive district attorneys are basing their pledges on successes they have already had in the fight to decriminalize marijuana possession. In Texas, the district attorneys for Nueces, Travis and Bexar counties all promised not to prosecute possession cases that came to them. They intend do the same with abortion.
Descano’s own fight to decriminalize marijuana in Virginia wasn’t easy – he says judges who opposed him dragged out the battle, arguing Descano could not dismiss such cases – even though a district attorney’s dismissals are usually granted.
That fight does not offer a perfect roadmap. With marijuana, Descano had a nationwide trend toward liberalization on his side. Abortion is moving in the opposite direction. But Descano – who said he was prepared to go to jail in order to stick to his promise – says the precedent taught him how to win these fights.
“It became very clear we weren’t going to prosecute. [So] police officers stopped spending their time on it,” he said.
Council leaders in Austin, Texas, are putting forward a proposal to restrict city funds from being spent on investigating abortion crimes if Roe is overturned this summer. They will also make the investigation of abortion crimes the lowest priority for the police department.
In effect, that would mean officers have to investigate every accusation of littering before they investigate an abortion. Texas is one of the 13 states that has a “trigger law” in place, which means a clinician could be charged with a first-degree felony punishable by up to life in prison and a $100,000 fine for performing an abortion if Roe falls.
But non-enforcement obviously isn’t a silver bullet against abortion bans. Laws like Texas’s SB 8, which bans abortion at six weeks, allow individuals to sue abortion providers. Those aren’t criminal cases, so law enforcement officials have little power over them, making the law difficult to challenge in court.
Furthermore, in the event of a total abortion ban, many clinics will close – afraid of legal repercussions and strapped for cash without patients. And even if localities vow to protect individuals, that might not provide sufficient reassurance.
“The biggest issue here is whether or not any clinic will [exist in] San Antonio,” said district attorney Joe Gonzales, of Bexar county in Texas, who has also pledged non-enforcement.
“[A ban] is not going to make women any safer. What you’re going to see is a lot of backroom procedures being done, jeopardizing the health and possibly the life of the woman,” he said.
“Regardless of whether your local prosecutor says he won’t prosecute, it is going to have a major chilling effect,” Descano said. “With stances like ours, we’re playing for time, we’re limiting the damage – but we’re not undoing the worst parts of these abortion bans,” he says.
•••
Rachel Rebouché, the interim dean at the Temple University School of Law, recently co-wrote a paper about some of the legal quandaries that will arise over the enforcement of abortion laws if Roe v Wade is overturned. She raises a number of potential obstacles to those hoping to ignore future abortion bans.
The state might fight non-enforcement with all its might, punishing localities and overriding their sovereignty, she says. That might mean passing laws to ensure state enforcement trumps local control, neutralizing any local efforts to direct funds or priorities away from abortion cases. Or it could mean forcing counties to collect information on reported abortion “crimes”, therefore stymieing any efforts to forego investigations. It could even mean states appointing special prosecutors to enforce abortion laws if DAs refuse.
But Rebouché says such measures would be time-consuming and costly and could result in further retaliation and stalemates – not to mention backlash at the ballot box – enhancing local prosecutors’ chances of success.
“You could envisage an uneasy truce, with [a total ban] being the state’s public policy, but with some pockets retaining limited access, because of the costs of trying to make a ban work,” she said.
This is to say nothing of the conflicts that may arise between states that ban abortion and those that choose to expand access. According to Rebouché, we are in an unusual moment in American history, where basic principles of inter-state conduct – such as cooperation between states; the sovereignty of each state within its own borders; and a general willingness of states to comply with criminal extradition requests – are under threat.
“There haven’t been many instances in American history – the civil war would be one of them – where you will see as much interstate conflict,” she says. She points to a recent bill that was weighed and eventually blocked in Missouri , which would have allowed individuals to sue anyone attempting to help a patient travel across state lines to have an abortion. These sorts of attempts may become more commonplace, and possibly have more success, if Roe falls.
“Missouri, trying to apply its policy across its borders, is like Nebraska saying you can’t gamble in Las Vegas. We just don’t expect that’s how states work,” Rebouché says.
But on the local level, officials are hopeful their pledges will make a difference. As Gonzales of Bexar puts it:
“For now, the way the present state of law is: I get the final say. I have the ability to make those calls. And until the law changes, that’s how it’s going to be,” he says.
• This article was amended on 15 June 2022 to correct the spelling of Rachel Rebouché’s last name.
