Last Tuesday’s Arizona Supreme Court ruling to uphold a 160-year-old law banning nearly all abortions will be a stress test for American democracy — in more ways than you might think.
The verdict is another significant milestone in in our nation’s collective journey from Roe to Dobbs to whatever comes next: whether that is a hodgepodge of vastly different abortion laws across the 50 states, or a federal law banning or protecting abortion altogether. Courts, legislatures and advocates on both sides of the debate will continue to wrestle with and fight over abortion laws drawn on the blank canvas of our current post-Dobbs landscape.
It also raises important questions about prosecutorial discretion, especially against the larger backdrop of an ongoing national debate about prosecutorial independence. I know from personal experience that in a world in which district attorneys are unlawfully suspended for speaking out against the post-Dobbs rush to criminalize abortion, the adoption and enforcement of new abortion laws have the potential to create lasting fissures in the foundations of our republic.
First, some background: In 1864, nearly 50 years before Arizona achieved statehood in 1912, Arizona passed a law prohibiting anyone from helping to “procure the miscarriage” of a pregnant woman unless “necessary to save her life.” That law and several others passed by Arizona since the 1970s, including a 15-week ban enacted in March 2022, were held unconstitutional under Roe v. Wade. The Dobbs decision by the U.S. Supreme Court in June 2022 overturned Roe, and in the process, effectively resuscitated these laws.
The political fallout from the decision will be immense.
The Arizona court ruling will likely have a “seismic impact” on the state’s politics. This starts with the presidential race, in which Arizona is considered an important swing state, and goes down to the U.S. Senate race and numerous local elections. There will be effects outside of Arizona, as well. The ruling will likely galvanize pro-choice voters across the country, helping Democrats win elections in a variety of races — just as the Dobbs decision did in 2022.
Beyond the ballot box, there is the question of how the new, yet very old, Arizona law impacts pregnant women and doctors, not to mention the nurses, fathers and anyone else caught in what would become a wide criminal net. Arizona’s governor condemned the ruling, and the Arizona attorney general boldly announced that no woman or doctor would be prosecuted under her watch. It is unclear whether this was a largely symbolic gesture or a warning shot to elected district attorneys.
In Arizona as in most states, local district attorneys are responsible for prosecuting crimes that occur within their jurisdictions. The attorney general has limited prosecutorial authority. Even though in Arizona the power to suspend or remove an elected district attorney is extremely limited, crossing the governor and attorney general on abortion carries considerable risks.
Trust me, I know.
In August 2022 I was suspended by Florida Gov. Ron DeSantis (R) as the twice-elected district attorney in Hillsborough County for speaking out against draconian abortion laws. I believed the governor violated the U.S. Constitution by suspending me on the basis of my political speech, so I sued. In January 2023, a federal court agreed and ruled that DeSantis broke the law, and the federal appellate court effectively affirmed the constitutional violation. Despite these two court victories, 20 months later I am yet to be reinstated as the case very slowly proceeds.
This is about, as one of the appellate judges wrote, the “manifest function of the First Amendment in a representative government.” Election officials are supposed to be given the “widest latitude to express views on issues of social policy.”
It’s also about the very meaning of elections. As the appellate court explained, I am an “independently elected state attorney, whom the Hillsborough County voters selected to serve their interests — not DeSantis’s.’’
If a governor or legislature can remove an election’s winner and install the loser because of policy disagreements, there is little point in having an election in the first place. But, in a highly polarized political climate, all of that is being ignored. The idea that elected prosecutors serve the voters who elected them is beginning to seem absolutely quaint.
Many states have taken steps to curb prosecutorial discretion and make it easier to remove prosecutors who exercise their discretion in ways that displease the governor or legislature. The rallying cry for infringing on prosecutorial discretion is often “prosecutors must follow the law”— a bumper-sticker slogan that ignores the realities of prosecutorial decision-making.
The reality is that district attorneys are required to prioritize certain types of cases in line with the wants and needs of their jurisdictions. A prosecutor routinely declining to charge, for example, murder cases, would be an egregious dereliction of duty. However, not criminally prosecuting jaywalking or adultery — a crime in 16 states — is obviously different. These are judgment calls made based on public policy, prosecutorial resources and the relevant facts and law, and they are necessary for a democracy. Laws that discourage DAs from utilizing their discretion threaten prosecutorial independence.
Despite the ambiguity in the Arizona AG’s pledge, pro-choice voters will interpret her announcement as just, because it protects women’s health and reproductive rights. Anti-abortion voters, meanwhile, will see an elected official promising to ignore a law she is tasked to uphold. This will only accelerate the downward spiral of attacks on prosecutorial independence and worsen the anti-democratic desire to punish elected officials over policy disputes.
When partisan politics and ideology are privileged over the democratic process, all opportunities for compromise are lost. The vast majority of Americans — as high as 87 percent — want abortion legal in some manner. Most voters support “both significant access to abortion and significant restrictions.”
A nation that wasn’t so rigidly divided would provide a national baseline of protections and allow states to set their own laws operating within those boundaries. Prosecutors could exercise their discretion to determine how best to enforce those laws to uphold the safety and freedom of their communities. That was, of course, essentially America under Roe, which the Supreme Court destroyed.
The question in front of us could not be more crucial. We can either try to repair this situation by rediscovering and embracing a common ground policy that reflects the will of the people or continue on this path of rigid win-at-all-costs partisanship that will cause disagreements to tear the underlying fabric of our democracy.
Andrew Warren is the state attorney in Hillsborough County, Fla.