Following the leak of Justice Samuel Alito’s draft opinion overturning Roe v. Wade, the Left unleashed a campaign of intimidation that included moving protests to justices’ homes. But liberal officials overseeing jurisdictions within more conservative states aren’t taking any chances. They are promising that if the left-wing intimidation campaign fails to flip any votes, they are prepared to take an even more drastic step to protect abortion: simply refusing to enforce the law.
The Wall Street Journal reports that Democratic district attorneys in Atlanta, New Orleans, Dallas, and San Francisco have vowed that they “won’t prosecute abortion providers or others, including those who assist a woman in obtaining the procedure.” The refusal to enforce the law is also being echoed by state attorneys general seeking reelection in Michigan and Wisconsin, as well as state AG candidates in Georgia and Arizona. This is nothing short of an assault on the rule of law. A new generation of Democrats is planning another campaign of massive resistance against civil rights.
It is true that prosecutors have always been granted some degree of leeway over the cases that they bring, given the need to prioritize the use of resources as well as special circumstances. But a more worrisome recent trend has been to use this discretion in an overly broad way so that it becomes an alternative means of making policy.
As president, Barack Obama helped popularize this approach when he couldn’t get what he wanted out of Congress on health care and immigration. Instead, his administration simply said it would not enforce Obamacare’s employer mandate (when it feared backlash from business owners) and it would not deport young illegal immigrants (the DACA policy). In recent years, we’ve also seen how politically motivated DAs who subscribe to liberal bromides about policing have simply decided to stop prosecuting certain crimes.
Now we’ve reached the point where candidates who are running for law-enforcement offices are making explicit pledges on which laws they will and won’t decide to prosecute if elected. It’s difficult to see how this really squares with all the media rhetoric about Democrats being the only party interested in preserving norms.
What’s happening here is pretty clear. For many decades, when liberals couldn’t get what they wanted passed through the legislative process, they would turn to the courts. This is central to the sinister legacy of Roe. But now that they are losing their stranglehold on the courts, they are turning to prosecutors to impose their policy preferences.
Republican legislators who are preparing legislation for the possibility of Roe getting overturned need to take this reality into account. They should craft laws to make sure that it will be too risky for any abortion provider to defy the law in hopes that they will be bailed out by activist prosecutors.