District Attorney José Garza.(Photo by Spencer Selvidge for The Washington Post via Getty Images)
Travis County, Tex., District Attorney José Garza reacted to the leak of a draft Supreme Court opinion overturning Roe v. Wade with an announcement that his office would not prosecute women for their health care choices. “In Travis County, we know our community is safer when women and families can make personal healthcare and reproductive decisions without interference from the state,” said Garza, whose jurisdiction includes Austin and surrounding communities. “I promise to continue fighting for the rights of women and to use my discretion to keep families safe.”
That’s a consequential statement in Texas, where a so-called trigger law would outlaw abortion in the state if and when the high court’s majority of right-wing judicial activists overturns almost five decades of judicial precedent. And Garza is not alone. The chief prosecutors in five of the state’s largest counties have signaled that their offices “will not criminalize or prosecute personal healthcare decisions.”
The prosecutors—including Garza, Dallas County District Attorney John Creuzot, Bexar County District Attorney Joe Gonzales, Nueces County District Attorney Mark Gonzalez, and Fort Bend County District Attorney Brian Middleton—argued even before the leak of the draft opinion:
Using the criminal legal system and an interpretation of murder that has no grounding in the law to punish women—and leveraging confidential medical information and eroding vitally important medical provider/patient relationships in doing so—is beyond the pale and will have devastating consequences. Women will be afraid to seek medical treatment even if they are dying. We cannot condone such cruelty or this distorted use of our criminal legal system. And we promise to continue fighting for the rights of women in this state and elsewhere and using our discretion as prosecutors to avoid these tragic results.
That statement was issued in mid-April, when murder charges were brought against a South Texas woman who allegedly told staff at a Starr County hospital that she miscarried after she had attempted to induce her own abortion. The local prosecutor ultimately dropped the criminal charge, which was based on a nonexistent law. But the news sent shock waves through legal circles in Texas, where draconian anti-abortion laws are already on the books.
The five elected prosecutors from Austin, Corpus Christi, Dallas, San Antonio, and suburban Houston expressed support for the Starr County prosecutor’s decision and explained:
This tragic incident is a troubling but unsurprising outgrowth of the misguided efforts in various parts of the country, and especially in Texas, to outlaw personal healthcare and reproductive decisions. Many of these enactments have the potential to fuel attempts by some to criminalize patients, medical professionals, healthcare providers, and others who assist in these medical procedures. Elected prosecutors can and should resist these efforts to entangle the criminal justice system in this arena.
The response of the Texas district attorneys is part of a national pushback by elected prosecutors against efforts to put them in a position to enforce laws that deny pregnant people control over their own bodies. After news of the leak was reported, state attorneys general and local prosecutors across the country signaled that they would not prosecute patients and providers.
It wasn’t the first time they’d stepped up. As Miriam Krinsky, executive director of Fair and Just Prosecution, a national network of progressive prosecutors, noted in a May 3 statement, “last year, nearly 100 criminal justice leaders urged the Court to affirm Roe v. Wade in an amicus brief filed in the case at issue today, and in 2020, 68 elected prosecutors vowed to never prosecute individuals for obtaining or providing abortions.”
“With the Supreme Court seemingly prepared to decimate the right to abortion any day now, we need many more leaders nationwide who are willing to take a stand and pledge to not prosecute private healthcare decisions,” declared Krinsky.
Many of the prosecutors who have been speaking out come from liberal states where it is unlikely that abortion will be banned. But some are from Southern states where bans are expected, including Sherry Boston from DeKalb County, Ga., Danny Carr from Jefferson County, Ala., and Jody Owens from Hinds County, Miss. And that is certainly the case for the prosecutors in Texas, the nation’s second-most-populous state and a jurisdiction that has seen the enactment of some of the strictest anti-abortion laws in the country.
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Texas Republicans last year approved legislation to ban abortions after the sixth week of pregnancy, before many even know they are pregnant. That law included a radical provision that permitted private citizens to enforce the ban. Since the Supreme Court leak, Texas Governor Greg Abbott, Attorney General Ken Paxton, and GOP legislative leaders have signaled that they are prepared to implement the most draconian bans that the courts will allow.
Top Republicans are already threatening to pass new legislation that would limit the discretion of prosecutors when it comes to abortion-related cases. Texas State Representative Briscoe Cain, a Republican from suburban Houston, said he plans to introduce a measure permitting Republican district attorneys from conservative counties to prosecute what he refers to as “abortion crimes” in counties where “the local district attorney fails or refuses to do so.”
When The Texas Tribune reported on Cain’s scheme, Travis County DA Garza pushed back: “All I can say is that the courts and the state Constitution have been very clear that elected district attorneys have sole criminal jurisdictions in their community.”
That principle, long established in the law, could prove to be critical in the fight to protect abortion rights in Texas and states across the country.
John NicholsTwitterJohn Nichols is a national affairs correspondent for The Nation. He has written, cowritten, or edited over a dozen books on topics ranging from histories of American socialism and the Democratic Party to analyses of US and global media systems. His latest, cowritten with Senator Bernie Sanders, is the New York Times bestseller It's OK to Be Angry About Capitalism.