Red States Seek To Make Anti-Abortion Regimes Absolute By Boxing Out Democratic Prosecutors

AUSTIN, TEXAS - JUNE 08: Texas Gov. Greg Abbott (Photo by Brandon Bell/Getty Images)
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Republican-controlled states are sealing the cracks in their anti-abortion regimes through legislation that removes the power of, or seeks to punish, Democratic prosecutors who decline to charge people for abortion-related crimes. 

Most of the legislation proposed echoes a law enacted in Idaho last April, which gives the attorney general authority to prosecute violations of the state’s abortion ban, should the local prosecuting attorney decline to do so. These state-level actions, both proposed and enacted, are collected in a new report, shared with TPM, on the preemption of local prosecutors by the Local Solutions Support Center and Public Rights Project. 

“In the aftermath of the Supreme Court’s Dobbs ruling, abortion has been a central focus of efforts to preempt local prosecutors,” the report said. “In many states, conservative state legislatures have used supersession to seek more robust criminal prosecution of abortion.”

Republican legislators in South Carolina, Wisconsin and Texas have proposed legislation to give their attorneys general concurrent jurisdiction to prosecute violations of anti-abortion statutes. In Georgia, proposed legislation that has passed through the state Senate would let the attorney general recoup costs from the local prosecutor if he prosecuted a case the local attorney refused to touch. In Indiana, legislation has been proposed to build a special mechanism that would appoint a special prosecutor to take over when the local prosecutor has adopted a blanket policy to not prosecute certain crimes. 

Texas in particular is a cauldron for this kind of legislation. In addition to the proposed legislation, it enacted a law last summer to classify a prosecuting attorney’s blanket refusal to prosecute a certain category of crime as official misconduct. In an echo of the state’s infamous abortion bounty hunter law, any resident of the prosecuting attorney’s district can then file a suit for his or her removal. That legislation gained momentum after Travis County District Attorney José Garza, a progressive prosecutor in Austin who has drawn much ire from state Republicans, signed on to a letter asserting that he would not prosecute “those who seek, provide, or support abortions.” 

This anti-abortion strain has inflamed a Republican — and, in some places, Democratic — animus towards progressive prosecutors. San Francisco’s Chesa Boudin was recalled in 2022; Philadelphia’s Larry Krasner has faced near-constant attacks from conservative legislators since his 2017 election. 

Florida Gov. Ron DeSantis (R) has suspended multiple state attorneys for being too “soft on crime.” Georgia Gov. Brian Kemp (R) signed a law that would create a commission to discipline and remove prosecutors, which state Democrats said was a direct threat to Fulton County District Attorney Fani Willis and her prosecution of Donald Trump. 

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