Abortion is shaking up attorneys general and revealing their limits

As the country grapples with new powers for states to regulate abortion after this summer’s U.S. Supreme Court decision, state attorney general candidates are making demands about what they will do to fight or protect abortion access — and that’s attracting cash and votes.

“Pretty much every indicator is in a campaign, Dobbs The decision energized and supercharged our nation,” said Chris Mayes, a Democrat running for attorney general in Arizona. “People are angry about it, and you can feel it in the air.”

But they’re not the only ones testing the law. The winners of local prosecutorial races will also shape the legal landscape, and in many states, an attorney general’s power to bring criminal abortion cases to court ends at the local prosecutor’s doorstep. Called district attorneys, prosecutors and various other names across the country, these lawyers — not attorneys general — make the final decision about whether criminal charges can be brought against people who have abortions or the medical professionals who provide them.

Exceptions include states like Delaware and Rhode Island, which have separate attorneys general and local prosecutorial structures, said David LaBahn, president and CEO of the Association of Prosecuting Attorneys.

In Georgia, several Democratic district attorneys said they would not prosecute people for violating a state law that bans most abortions starting at about six weeks. Although abortion is already depicted in the attorney general’s 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 re-election, has said he will not enforce the contested 1931 state abortion ban that provides for no exceptions in circumstances such as adultery or the health of the mother. And on Friday, a state judge blocked efforts by local Republican prosecuting attorneys to charge people under that law.

Democrat Kimberly Graham, an Iowa county attorney candidate, has announced that she will not sue doctors or people for providing abortion care. He mentioned that the verdict of the Supreme Court last June Dobbs v. Jackson Women’s Health Organization It highlighted how little people realize the “frightening amount of discretion and power” prosecutors have.

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

It’s unclear how many county attorneys and district attorneys will decide to enforce or fight their state’s abortion policies. But that leads to an uncertain legal landscape, said former Maine Attorney General James Tierney, a Democrat who is now a lecturer at Harvard Law School. “We’re talking real chaos here,” he said.

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

A Texas law that will 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 pay for abortion care. Previously, Paxton, who is running for re-election and has been charged with securities fraud, has offered his office’s resources to local district attorneys who want to prosecute abortion providers.

On August 4, Florida Governor Ron DeSantis, a Republican, fired state attorney Andrew Warren for what he said was his refusal to enforce state law on a variety of issues, including abortion.

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

Even as the power struggle heats up, candidates for attorney general say voters don’t really understand the limits of the office’s authority, and their races tend to have high turnout. Thirty states have attorney general slots up for election this year, with close races in Arizona, Georgia, Iowa, Michigan, Nevada and Wisconsin.

Jane Jordan, a Democratic state senator running to unseat incumbent Georgia Republican Attorney General Chris Carr, said voters “look at what the holder of the office says or does and then start to believe that’s the real role of the attorney general.” But he acknowledged the limits of the office: “I can’t promise that a woman won’t be prosecuted by the local district attorney, because they have different constitutional powers.”

The abortion fight comes as attorneys general have become more active and empowered in the political system, Nolet said. In recent years, money has poured into the competition following the Supreme Court’s 2010 decision Citizens United v. Federal Election Commission — which allows corporations and donor groups to spend unlimited money on elections — attorneys general have focused their partisan battles on more traditional aspects of the job, such as consumer protection, Knowlett said.

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

The Dobbs Emily Tryphon, a spokeswoman for the Democratic Attorneys General Association, said the decision has increased interest in donations to Democratic attorney general candidates. Triphone reported that on the day the decision was announced, the group raised 15 times what it did the previous day. It also outperformed the usually dominant Republican Attorneys General Association during that quarterly filing period.

Nessel, of Michigan, said he felt like no one was paying attention to his re-election run Dobbs. His Republican challenger, Matt DiPerno, said he would support the state’s contested 1931 law, which allowed felony-murder charges against providers. In response, her team ran an ad highlighting her comments opposing the abortion ban Exceptions are made in cases of rape or molestation or saving the patient’s life. Since Dobbs In conclusion, Nessel has a slight lead neck and neck in the election.

In view of this Dobbs The incumbent, term-limited Arizona attorney general, Republican Mark Bronovich, has tried to revive a century-old state abortion ban that was put on hold in 1973. Roe v. Wade The decision was made. Mayes, the Democratic candidate, argued that the law violates privacy guarantees in the Arizona state constitution and said he would “fight like hell” to keep it from taking effect. His Republican challenger, former Maricopa County Prosecutor Abraham Hamadeh, said he would enforce it, which Mayes said the attorney general could do in Arizona.

According to an analysis conducted through Aug. 14 by media monitoring firm Kantar/CMAG requested by KHN, so far this year, most broadcast TV ads in the attorney general race have not mentioned abortion. Still, it’s still early in the election season. The Democratic Attorneys General Association recently began a five-figure digital ad buy on abortion for races in Texas, Michigan and Nevada.

But the attorney general’s campaign spent 10 times more on abortion rights ads than ads with anti-abortion sentiment, the Kantar/CMAG analysis found.

The mentions of abortion in the ad tracks contrast with what Brian Robinson, a longtime Republican operative in Georgia, has seen. Democratic candidates want to talk Dobbs Because they feel like it benefits their campaign, Robinson said, Republicans think they’ve already solved the problem. “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 set abortion policy and that Democratic attorneys general should enforce their state’s laws.

Nessel noted that local prosecutors always have the discretion to charge or not charge whatever they choose. The books even include adultery laws, he said.

Still, it may take some time to see how local district attorneys fare as they face a backlog of cases worsened by the Covid-19 pandemic, said Pete Scandalakis, a former Republican district attorney and head of the Georgia Council of Prosecuting Attorneys. .

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

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