Soon after the Supreme Court voted to overturn Roe v. Wade, dozens of prosecutors nationwide — including at least five in Texas, representing some of the state's most populous counties — declared they would not pursue charges against people who seek or provide abortions.
In response, a group of conservative Texas legislators have hatched a plan to circumvent those local district attorneys: allow prosecutors from other parts of the state to enforce the laws for them.
"The legislation that we will introduce next session will empower district attorneys from throughout the state to prosecute abortion-related crimes ... when the local district attorney fails or refuses to do so," wrote Rep. Mayes Middleton, chairman of the Texas Freedom Caucus, in a letter sent last week to a law firm he accused of aiding illegal abortions.
A law firm in Texas pledged to reimburse the travel costs of employees who leave Texas to murder their unborn children. We are putting them and others on notice of the illegality and consequences of their actions under pre-Roe statutes. See our letter below: #txlege #ProtectLife pic.twitter.com/ef8KNRYbwE
— Texas Freedom Caucus (@TxFreedomCaucus) July 7, 2022
The idea has been circulating since at least March, after the Texas Supreme Court shut down the final challenge to S.B. 8 — the state bill that effectively banned most abortions even before Roe was overturned by deputizing private citizens to sue anybody who provided an abortion, or helped a woman seek one.
"Abortion funds think they can flout the law because a local district attorney refuses to bring charges. We'll fix this problem next session," said Republican state Rep. Briscoe Cain that month, when he announced he would introduce the bill.
Cain did not respond to a request for comment.
A prosecutor from Lubbock could press charges in Austin
If Cain's proposal passes, it would be another highly unusual modification to the traditional criminal justice system in Texas, following in the footsteps of S.B. 8, which used its private lawsuit mechanism to sidestep the Roe-era constitutionality issues of an outright criminal ban.
"It's an example of the same kind of tactical ethos on the part of the Republican Party, which is, 'We're just going to rewrite the playbook,' " said Jennifer Laurin, a professor at the University of Texas Law School.
In almost every state, including Texas, prosecutors are elected by people who live in their area of jurisdiction. If voters don't like how a prosecutor has chosen to pursue some types of crime over others — like police prosecutions, marijuana offenses, or immigration-related crimes — they can vote differently next time.
Prosecutors elected by Democratic majorities in Dallas, San Antonio and Austin have already said they will not pursue abortion-related charges.
"I don't want women who live in our community suffering or dying at home because they're too scared to go to the doctor and get the medical attention that they need," said Travis County District Attorney José Garza last week in an interview with NPR.
Garza says he sees more pressing issues in his county, which includes Austin, like working to reduce gun violence. "To pool resources away from that work to pursue this kind of political prosecution would destabilize our community and make it less safe," he said.
Cain's proposal would allow such prosecutions to go ahead anyway, no matter what local voters may prefer.
If it passes, an abortion fund based in Austin — where Joe Biden won 72% of the vote in 2020 — could be prosecuted by a district attorney from Lubbock, where Trump won with 65%. Austin voters may be unhappy, but they would have no recourse in any subsequent Lubbock County election.
In an interview last month with Dallas TV station WFAA, a reporter raised this question directly to Cain. Wouldn't the proposal, the reporter asked, "essentially overturn, or move out of the way, a duly elected official?"
"I guess that's how it would work. That's the idea," Cain replied. "And we're gonna go for it."
Texas conservatives say they are not done targeting abortion
Abortions in Texas have already come to a halt. After S.B. 8 went into effect last year, abortions fell by more than 60%. Now that Roe v. Wade has been overturned, a near-total ban on abortion from 1925 is back in effect. Abortion providers in the state say they have ceased providing abortion services.
Still, conservative lawmakers say they are not done targeting abortion rights.
Along with Cain's district attorney proposal, the Texas Freedom Caucus has prepared a raft of other legislation, including a bill that would impose criminal penalties on employers for covering elective abortions in their health insurance. Another would allow private citizens to sue anyone who pays for a Texas resident to receive an abortion out of state.
The passage of the DA proposal is not guaranteed. In Texas, the state legislature is not scheduled to convene until January 2023. Barring a special legislative session before then, lawmakers must wait until then to introduce the bill, which then must be approved by both legislative chambers.
Another factor is November's gubernatorial election. If voters re-elect Gov. Greg Abbott, a fiercely anti-abortion Republican, he may be likely to sign the bill. But his Democratic challenger, Beto O'Rourke, has vowed to veto any such legislation.
It's not certain the proposal would be legal in Texas
It's also not clear whether the district attorney legislation could survive legal scrutiny.
Texas has a strong tradition of localized prosecution, Laurin said, pointing to a 2021 decision by Texas's highest criminal court that found the Texas attorney general could not prosecute election law offenses without the explicit approval of local prosecutors. It is "plausible," she said, that a court could rule similarly about non-local prosecutors.
Garza, the Travis County DA, was more confident. "The Texas Court of Criminal Appeals, the highest court in the state of Texas for criminal cases, and the Texas Constitution are incredibly clear that the only entity that has authority to pursue prosecutions in a community is the office of the district attorney, locally elected by the people," he said.
But the most clear and direct way to challenge such a law would be to wait for a non-local prosecutor to file charges, and then for the defendant to make the argument in court that the charges should be dismissed, Laurin said.
With a felony conviction and jail time on the line, few potential defendants may be willing to take the risk.
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