What Will Your Local Prosecutor Do If Roe Falls?
A Michigan prosecutor explains why he’s publicly promising to use his office to fight against efforts to criminalize abortion.
Daniel Nichanian, | May 3, 2022
A Supreme Court majority has signed on to a draft opinion that would end federal protections for abortion rights, Politico reported last night. “We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote, saying it was time to “return the issue of abortion to the people’s elected representatives.” If issued in coming weeks, such a ruling would immediately criminalize abortion in states like Michigan that already have anti-abortion laws on the books, with other states sure to follow.
The end of Roe would spark conflicts in all 50 states, with governors and legislatures newly empowered to set their state’s course on reproductive freedom. But even within each state, county officials would end up with a great deal of discretion, sparking an uneven patchwork of policies that would vary from one locality to the next.
In states with newly-enforceable laws criminalizing abortion, prosecutors would decide how harshly to target people who provide or receive an abortion, and in some cases local officials have already shown their eagerness to use the criminal code to go after reproductive rights. But prosecutors could also draw a protective line in the sand and refuse to bring abortion-related charges.
From Michigan to Texas, some prosecutors are already vowing that they will not prosecute abortion. And similar questions may quickly reverberate across prosecutors’ offices nationwide, including some like Arizona or Tennessee that have both “trigger laws” on the books and prosecutors’ races this fall.
Eli Savit, prosecuting attorney of Michigan’s Washtenaw County (home to Ann Arbor and nearly 400,000 people) is among the prosecutors already vowing to not prosecute abortion in a state that could soon criminalize it. A progressive who first won in 2020, Savit joined six other prosecutors last month promising to support reproductive freedom and declaring that Michigan’s 1931 law making abortion a felony—a so-called trigger law that’s on the books in some form or another in 21 other states— is unconstitutional.
Bolts talked to Savit about the importance of prosecutors when it comes to abortion rights—and also the limits of their power as those rights are under threat.
You signed a letter just a few weeks ago, alongside six other prosecutors, stating that you “cannot and will not support criminalizing reproductive freedom.” What concrete policy would your office adopt if Roe is overturned? Would you ever bring charges under Michigan’s 1931 anti-abortion law if it goes back into effect?
I can’t speak for the other prosecutors, but I’ve been very clear about this. Categorically, we’re not prosecuting abortion in Washtenaw County. We’re not prosecuting people that obtain abortions. We’re not prosecuting doctors. We’re not prosecuting medical providers. We’re not prosecuting under that law.
What leads you to take this position?
A prosecutor’s job should be to protect the health and welfare of people in their communities. And what we know is that the potential overruling of Roe vs. Wade, and in Michigan the recriminalization of abortion, will set the health and welfare of our community back a great deal.
I do not want to be presiding over a prosecutor’s office that has anything whatsoever to do with criminalizing people for exercising reproductive freedom, with criminalizing doctors for providing abortion, with reviving the days in which abortion was done in the shadows without proper health and safety techniques being utilized. People died regularly from abortion before Roe vs. Wade. To not take the stand that we did, to not say very clearly that we will not prosecute abortion, there could be blood on our hands. That’s something that I don’t find acceptable in any way, shape or form.
If Michigan’s 1931 law takes effect, who could face criminal charges where prosecutors choose to enforce it?
It is not exactly clear at this point. Very obviously, the law would criminalize providers; the law has archaic language relating to inducing a miscarriage. Is there a criminal liability potentially under that law for women, for people that are seeking abortions? Potentially. My understanding is that that’s an open question but the threat is there. And the very ambiguity in the law makes it in some ways even more pernicious, because there’s so much uncertainty about what it means if the Supreme Court overrules Roe.
As the Supreme Court stated in Casey, “liberty finds no refuge in a jurisprudence of doubt.” By the same token, nobody in my community should have any doubt as to whether they’ll be facing criminal charges as a result of an abortion.
A prosecutor in a neighboring county criticized your letter, saying it’s beyond the role of a prosecutor to say they will not apply a law. You have taken the similarly categorical stance of declining categories of charges on other issues, such as sex work. What is your response to that type of criticism, and why do you think it is the role of a prosecutor to take the stand you are taking?
If people think that categorical declination to enforce an archaic law somehow violates the oath of office, then they’ve got problems with prosecutors across this state for not prosecuting adultery. That is still a law on the books in Michigan; there’s a law that criminalizes adultery, and not a single prosecutor is spending any time and any resources prosecuting people for cheating on their spouses. I think there’s virtually unanimous consensus that whatever you might think about infidelity, it’s not something that is the proper provenance of the criminal legal system.
Prosecutors do this all the time. We elect prosecutors precisely to exercise their discretion in line with the community’s values and in line with their views as to the health and safety of the community. That’s what I’m doing here.
Certainly, I think that the [1931 anti-abortion] law needs to be overturned—we have ballot amendments here in Michigan that would do that, there’s litigation going on—because a prosecutor’s discretion is only good until the next election. And if people don’t like it, I’m answerable at the ballot box. But right now I’m doing what I believe is in the best interest of my community, what the people of Washtenaw County elected me to do, and that’s what prosecutors do day in and day out.
As long as Michigan’s law stands, are you concerned about other law enforcement or state government preempting your discretion?
I do think it’s important to be honest about the limits of my authority. ounty prosecutors exercising their discretion not to charge abortion is great. But discretion only goes so far. So long as our 1931 abortion ban remains on the books, law enforcement could investigate and even arrest people for abortion—notwithstanding what the prosecutor ultimately does with charging. Similarly, Michigan law already allows the attorney general to prosecute any state-level case in Michigan, so there’s already the theoretical possibility that a state-level prosecutor will step in. Our current AG, [Democrat] Dana Nessel, has made it abundantly clear that she won’t prosecute abortion, either. But it’s a structural concern here in Michigan.
That’s why this is really an all-hands-on-deck approach. That’s why I’m strongly supporting the ballot initiative in Michigan to amend the state constitution to expressly protect abortion. It’s why I’m supportive of both the governor and Planned Parenthood’s lawsuits seeking to strike down the 1931 law under the Michigan Constitution. And it’s one of many reasons why we need to elect pro-choice majorities in the Michigan Legislature, and re-elect our pro-choice state-level officials.
What would you say to prosecutors around the country who may have pro-choice views? How should they respond to Roe being overturned?
Every jurisdiction is different, and I don’t purport to tell other prosecutors what to do. But every prosecutor I know wants to do what they can to keep their communities safe, and to ensure that people feel safe and secure.
People are scared right now—scared that a fundamental right that’s been expressly recognized for nearly 50 years is about to be swept away, scared they’ll no longer have full control over their own bodies or their decision whether to have a child, scared that they may be investigated, arrested, and prosecuted for exercising a right they believed was sacrosanct. So, for me, the position was an easy one. I’ll be damned if I’m going to prosecute anyone for exercising a right that I believe is fundamental. And I think it’s important to let my constituents know that, in no uncertain terms.
This interview has been edited for length and clarity.