Some State Attorneys General Are Vowing Not to Enforce Abortion Bans

State attorneys general like California's Rob Bonta, whose wife shared their abortion story this week, may be a lifeline for people with unplanned pregnancies.

By Kylie Cheung | May 13, 2022 | 9:15pm

Abortion Politics

Some State Attorneys General Are Vowing Not to Enforce Abortion Bans

Nearly three decades ago, a man held his partner’s hand as she made the decision to have an abortion. Today, with the Supreme Court poised to overturn Roe v. Wade, Rob Bonta is the attorney general of California, and his wife, Mia Bonta, is a state assembly member on the frontlines of the fight to protect and expand reproductive freedom in the state.

“I’m grateful that so many have demonstrated the courage to tell their own stories, including Assemblymember Bonta,” Attorney General Bonta said of his wife in a phone interview with Jezebel. “And, in doing so, they help make the point that this is an inflection moment for this country, that we can’t go backwards, we must go forward, and say ‘hell no’ to backsliding on 50 years of federal constitutional law.”

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As California’s top law enforcement official, Bonta has led the nation in efforts to prevent the criminalization of pregnancy loss, which he notes “can be deeply personal and traumatic,” and to protect people from prosecution for pregnancy outcomes that include miscarriage, stillbirth, or self-managed abortion. “We owe it to all Californians to ensure that the pain of loss is not compounded by violation of privacy and unjust criminal prosecution,” Bonta said. And in the face of the court’s draft opinion reversing Roe, opening the door for states to prosecute abortion as well as the many miscarriages and stillbirths that will be treated with criminal suspicion, Bonta isn’t letting up.

He’s one of several state attorneys general across the country who are pledging to protect pregnant people in their states if, or really, when, Roe falls. Democratic Attorneys General Association co-chairs Nevada AG Aaron Ford and Delaware AG Kathy Jennings called the leaked Supreme Court decision “devastating,” and doubled down on the association’s pledge to “only endorse candidates who support the right to access abortion,” as the only Democratic political committee with a firm litmus test on the issue, in a statement shared to Jezebel. Michigan AG Dana Nessel has pledged to not enforce the state’s pre-Roe abortion ban even if Roe falls, amid Gov. Gretchen Whitmer’s ongoing lawsuit calling on the Michigan Supreme Court to recognize a constitutional right to abortion in the state’s constitution.

While 26 states either have trigger laws that could ban abortion once Roe isn’t in effect, or pre-Roe bans like Michigan’s, even “blue” states with more liberalized abortion laws also have a lot at stake with the fall of Roe. On top of the fact that abortion will inevitably become less accessible when more people are forced to travel to other states for care, as Bonta sounded the alarm on even prior to the Supreme Court leak, pregnancy and abortion criminalization can happen anywhere in the US—including ostensibly deep-blue states like California.

In January, Bonta issued a statewide alert advising law enforcement to not charge people for murder over pregnancy loss, regardless of their behavior—including drug use—before losing the pregnancy. The alert came after two California women had been charged with “fetal murder” in 2017 and 2019 for stillbirths that allegedly involved substance use. Both of the women, Adora Perez and Chelsea Becker, respectively, have since had their charges dropped with support from Bonta and his office. Perez, who was sentenced in 2017 to 11 years in prison, was finally released earlier this year after serving four years.

Bonta says these charges stemmed from misuse of a fetal homicide law on the books in California and most states, which was designed to protect pregnant people from high rates of homicide and domestic violence by criminalizing killing the fetus. Instead, it’s been weaponized by some prosecutors and local police departments to punish and criminalize disproportionately Black, brown, Indigenous and other people of color for pregnancy loss, which research has shown they experience at higher rates, while also facing over-policing due to the racist War on Drugs.

“The legislature did not intend to include a pregnant person’s own actions that might result in a miscarriage or stillbirth—rather, the addition was meant to criminalize violence done to a pregnant person,” Bonta said of his directive in a January press conference. “The loss of a pregnancy at any stage is traumatic, it is physically traumatic, emotionally traumatic—it’s an experience that should be met with an outreached hand, not handcuffs and murder charges.”

Because medication abortion with pills can’t medically be distinguished from a miscarriage, abortion bans could render all pregnancies and pregnancy losses potential crime scenes. National Advocates for Pregnant Women warns that criminal charges have tripled in recent years—Lizelle Herrera in Texas was the most recent victim of this.

In Wisconsin, harmful “fetal homicide” laws are taken a step further by the state’s dated Unborn Child Protection Act, or Act 292, which allows Wisconsin to take pregnant people into custody, assign a lawyer for their embryo or fetus (but not the pregnant person), and send the pregnant person to drug treatment, psychiatric hospitals, or even jail, if they’re suspected of substance use. While the law remains on the books, Wisconsin’s Democratic Attorney General Josh Kaul tells Jezebel he “fully supports repealing” it. Kaul has also pledged to not enforce his state’s pre-Roe ban if Roe is struck down.

“It’s my stance that not only should the Wisconsin Department of Justice not use its investigative or prosecutorial authority to investigate and prosecute violations of the the abortion ban, but also that DA offices, police departments, sheriff’s offices, also shouldn’t use their authority for that,” he told Jezebel in a phone interview. “Safe, legal abortion is a human right, and these resources should go to investigating serious things, like homicide, arson, sexual assaults—not investigating people for having abortions.”

Kaul’s Republican opponents in the state’s upcoming election have all vowed to enforce Wisconsin’s abortion ban, should Roe fall.

In California, Bonta says he hopes if Roe is reversed, this doesn’t embolden local law enforcement departments to dole out more investigations and criminal charges for pregnancy losses. But if they do, he he’s prepared to protect any pregnant person who may fall victim. “There could be more surveillance, there could be aggressive attempts to criminalize people for their pregnancy outcomes—I don’t want to speculate on that, because we’re not there yet, and Roe v. Wade remains the law of the land.

“But in California, we’re going to take action wherever appropriate, as we’ve done in other cases, to protect and defend pregnant persons, just like we did with Chelsea Becker and Adora Perez.”

Farah Diaz-Tello, senior counsel at the reproductive justice legal advocacy group If/When/How, says state attorneys general have to play a greater role than ever in communicating to local law enforcement agencies that pregnancy loss shouldn’t be prosecuted, and no existing law dictates that it should be.

“We have to see more of attorneys general do, for example what AG Bonta did, which is remind prosecutors, alert defense attorneys, that there is literally no grounds for criminalizing people for the outcome of their pregnancies,” Diaz-Tello told Jezebel. “Irrespective of what happens to Roe, it is not and will never be the place for prosecutors to try to create new crimes where they don’t exist, and pregnancy outcomes, self-managed abortion, are not a crime.”

It’s not just state attorneys general—state legislators, particularly in states with Democratic majorities in the legislature, are taking action to protect pregnant people from criminalization and prepare for a post-Roe America. In California’s legislature, for example, earlier this year, Assemblymember Buffy Wicks introduced a bill to explicitly decriminalize pregnancy loss and self-managed abortion, which, as Diaz-Tello points out, aren’t crimes in the first place.

Wicks, who’s previously shared her story of experiencing pregnancy loss and needing an emergency abortion, tells Jezebel she was moved to introduce the bill by the experiences of Perez and Becker, and to protect the rights of the influx of pregnant people expected to travel to California seeking abortion care when Roe falls. “There will be a 3,000% increase in people coming to seek abortion care in California—we have to lead the way in this nation to ensure that women have access to safe, legal abortion, and also, they’re not criminally prosecuted.”

With Roe on the line, Bonta says he continues to think about Perez and Becker. “That their charges were dropped, those are appropriate outcomes—but that can’t change the pain that they went through to be charged in the first place, the incarceration they faced before the charges were dropped or dismissed,” he said. “That should never happen to anyone.”