As the country grapples with states’ newfound power to regulate abortion in the aftermath of this summer’s U.S. Supreme Court decision, state attorney general candidates are staking claims on what they’ll do to fight or defend access to abortion — and that’s attracting cash and votes.
“By pretty much every indicator there is in a campaign, the Dobbs decision has energized and supercharged our race,” said Kris Mayes, a Democrat running for attorney general in Arizona. “People are outraged about this, and you can feel it in the air.”
But they aren’t the only ones who may be testing the laws. The winners of local prosecutorial races will also shape the legal landscape, and, in many states, an attorney general’s ability to bring criminal abortion cases to court ends at a local prosecutor’s doorstep. Called district attorneys, prosecutors, and various other names across the country, these lawyers — not the attorneys general — would make the final decisions on whether criminal charges can be brought against people seeking abortion or the medical professionals that provide them.
The exceptions include Rhode Island and Delaware which have distinct attorney-general and local prosecutorial structures, according to David LaBahn, president of the Association. Association of Prosecuting Attorneys.
Georgia several Democratic district attorneys have said they won’t prosecute people for violating a state law that bans most abortions starting at about six weeks. Although abortion is already part of the attorney general race they have limited power to stop local decisions.
Michigan’s attorney general, Democrat Dana Nessel, who is running for reelection, has said she would not enforce a contested 1931 state abortion ban that does not provide for any exceptions Incest situations or for the mother’s health. On Friday, a judge in the state blocked an attempt by local Republican prosecuting attorneys to charge people under that statute.
Iowa County Attorney candidate Kimberly Graham declared that she would not prosecute. doctors or people for abortion care. She noted that the Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization has highlighted how little people realize the “scary amount of discretion and power” prosecutors have.
“The only real accountability to that is called the ballot box,” she said. “Hopefully, among other things, people will start paying more attention to the county attorney and DA races and realizing how incredibly important these positions have always been.”
It’s not clear how many county attorneys and district attorneys will decide to enforce or fight their state abortion policies. This creates an uncertain legal landscape, according to James Tierney, a former Maine Attorney General and Harvard Law School lecturer. “We’re talking real chaos here,” he said.
Some officials have tried to increase the jurisdiction of attorneys general and governors in order to bring criminal cases against those who provide abortions or organizations that assist people with accessing abortions.
A Texas law Set to take effect in August, Attorney General Ken Paxton has the power to override local district attorneys You should pursue providers and abortion fund managers that give money to women who are seeking abortion care. Paxton was previously running for reelection. under indictment on securities fraud charges, has offered his office’s resources To local district attorneys who want to prosecute abortion providers.
On Aug. 4, Florida Gov. Ron DeSantis, Republican suspended State Attorney Andrew Warren He said it was a refusal by the state to enforce laws on a range issue, including abortion.
Paul Nolette, chair of the political science department at Marquette University, said he expects other states to give attorneys general more power — and take away local control from prosecutors.
Even as the power struggles ramp up, candidates for attorney general say that voters don’t really understand the limits on the office’s authority and that voter engagement in their races remains high. Thirty-eight states currently have attorneys general up for election. close races Arizona, Georgia. Iowa. Michigan. Nevada.
Jen Jordan, a Democratic state senator who’s running to unseat incumbent Georgia Republican Attorney General Chris Carr, said voters “see what the holder of the office says or does and then begin to believe that is the actual role of the attorney general.” But she acknowledged the limits of the office: “I can’t make a promise that a woman would not be prosecuted by a local district attorney, because they have separate constitutional powers.”
Nolette stated that the abortion fight is a result of attorneys general becoming more active and gaining power in the political system. In recent years, as money poured into races after the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission — which allowed corporations and donor groups to spend an unlimited amount of money on elections — attorneys general have emphasized their partisan fights over more traditional aspects of the job, such as consumer protections, Nolette said.
“It’s part of the AGs becoming the legal culture warriors on both sides,” he said.
The Dobbs A spokesperson for the Democratic attorney General candidates, Emily Trifone said that this decision increased interest in donating. Democratic Attorneys General Association. Trifone stated that the group raised 15x more money the day after the decision was made. It also raised more money than the usually dominant Republican Attorneys General Association during the quarterly filing period.
Michigan’s Nessel said she felt as though no one was paying attention to her reelection race until Dobbs. Her Republican challenger, Matt DePerno, has said he would uphold the state’s contested 1931 law, which allows felony manslaughter charges against providers. Her team responded with an ad in which he was criticized for opposing the abortion ban exceptions in cases of rape or incest or to save the life of the patient. Since the Dobbs Nessel was removed from being neck and neck According to polls, a slight lead.
In the wake Dobbs In a ruling, the term-limited Arizona attorney-general, Republican Mark Brnovich tried to revive a century old state abortion ban that was suspended in 1973. Roe v. Wade It was ruled. The Democratic candidate, Mayes, argued the law violates the privacy guarantees in the Arizona state constitution and said she would “fight like hell” to keep it from taking effect. Her Republican opponent, former Maricopa County prosecutor Abraham Hamadeh, has said he would enforce itMayes stated that the attorney general in Arizona can do this.
Thus far this year, most broadcast TV ads in attorney general races haven’t mentioned abortion, according to an analysis run through Aug. 14 by media monitoring firm Kantar/CMAG requested by KHN. Yet it’s still early in election season. The Democratic Attorneys General Association launched recently a five-figure digital ad buy about abortion For the races in Texas and Michigan.
Kantar/CMAG analysis revealed that attorney general campaign ads that promote abortion rights sentiments have spent 10 times as much money than those with anti-abortion sentiments.
Brian Robinson, a long-time Republican operative from Georgia, saw the ads’ divergence on abortion. Democratic candidates want Democrats to keep talking about Dobbs because they feel as though it benefits their campaigns, Robinson said, while Republicans think they’ve already addressed the issue. “We’re not playing that game,” Robinson said. “We’re going to talk about crime and the economy.”
Peter Bisbee, Executive Director of RAGA, stated in a statement that elected state legislators make decisions about abortion policy and that Democratic attorneys-general should enforce those laws.
Nessel noted that local prosecutors have always had the right to charge or deny any charges they choose. She said that this includes adultery laws.
Still, it could take some time to see how those local district attorneys proceed as they face a backlog of cases made worse by the covid-19 pandemic, said Pete Skandalakis, a former Republican district attorney and head of the Prosecuting Attorneys’ Council of Georgia.
“We are stretched beyond our resources at this point,” he said. “We’re not even trying to keep up — we’re trying not to sink.”
KHN (Kaiser Health News), a national newsroom, produces in-depth journalism on health issues. KHN is one the three major operating programs. It includes Policy Analysis and Polling. KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization that provides information to the nation on health issues.