The abortion battle has moved to your local court

A federal judge in Florida is soon expected to rule on whether Gov. Ron DeSantis (R) violated the First Amendment and abused his power when he overruled the will of voters and suspended Andrew Warren — the twice-elected state prosecutor of Tampa — for vowing that neither he nor his office would prosecute abortion cases.

The case sets the stage for an epic battle between state and local power — with doctors, patients and criminal defendants caught in the crosshairs.

Unfortunately, DeSantis’s move is not just a Florida problem or even a political anomaly. It is part of a growing string of attacks on local prosecutors for using their discretion in ways state leaders disagree with. We’ve recently seen this playbook in other states — and it heralds a dangerous new era.

Despite being a critical component of health care and a core human right, abortion has always been a politically fraught and polarizing issue. For the last 50 years, we’ve debated: Should abortion be legal, or not? When is it too early or too late? What exceptions should apply — health, life, rape, incest?

In the wake of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, abortion is now a criminal justice issue — literally a felony in many states — instead of just an issue of rights and freedoms. It is now synonymous with crime and punishment, carrying with it huge implications for women and people who can become pregnant, and for the prosecutors now on the front lines.

Post-Dobbs, local prosecutors now must decide who should be criminally liable in abortion cases — doctors? Patients? People who help them? They must also decide how abortion prosecution should be prioritized as compared to other crimes like robbery, assault, homicide or fraud.

Since the origins of our criminal justice system, prosecutors have had discretion to decide if there’s enough evidence to charge a particular crime, what length of sentence to seek and what crimes to prioritize in a world where there’s more crimes than resources to prosecute.

In recent years, more elected prosecutors have prioritized violent crime over minor offenses like drug prosecutions, diverting people away from incarceration they believe is unnecessary (or counterproductive) for public safety. Voters have frequently endorsed those priorities.

This progress has been accompanied by backlash, fueled by an all-too-easy scapegoating of “soft-on-crime” policies. Several states have restricted prosecutors’ power or punished prosecutors for pursuing reform strategies endorsed by voters, and the GOP-controlled Pennsylvania legislature is currently attempting to impeach Philadelphia District Attorney Larry Krasner.

Reproductive justice has turbo-charged these conflicts between local prosecutors and state leaders across the country.

While 14 state legislatures have swiftly moved to ban abortions and push criminal penalties, at least 83 local prosecutors have publicly committed not to prosecute those offenses. And voters, where they’ve had a say, agree. Ballot measures from Kansas to Kentucky have shown us that abortion criminalization is unpopular, even in the reddest of states.

Now that election season is over, the future of our rights will be determined in prosecutors’ offices and courtrooms across the country. Even in states where abortion is criminalized, that doesn’t mean there’s nothing we can do.

For abortion access advocates, the key to protecting abortion rights in hostile states increasingly lies with our ability to encourage local prosecutors and state attorney generals to wield their power of prosecutorial discretion. Voters don’t only have power when casting a ballot, they can contact state and local leaders — governors, state legislators, sheriffs, attorney generals — to tell them they support prosecutors who deprioritize criminal abortion cases. We can stand up for prosecutors like Warren when they face backlash for protecting our rights. Voter can thank officials who are clear allies for abortion rights and criminal justice reform — and when the next election is here, vote for those who prioritize reproductive justice and prosecute crimes that truly threaten public safety.

This does not mean advocates should push for unchecked prosecutorial discretion — conflicts of interest or personal beliefs dictating decisions can be just as dangerous. But together, we can — and must — press local prosecutors and state attorney generals to make the right call and prioritize public safety over politics.

Jill Habig is a former civil rights prosecutor and adviser to Kamala Harris. She is the founder and president of Public Rights Project, a national organization that works with state and local prosecutors to enforce civil and human rights laws including the right to abortion. She is also a Lecturer at Berkeley Law School where she teaches state and local impact litigation.