Abortion fight thrusts state attorney general races into the forefront

The Supreme Court appears poised to overturn Roe v. Wade, a decision that would end legal abortion in nearly two dozen states and hand more power to state attorneys general — a shift that has thrust those down-ballot contests into the limelight.

In nine states, abortion will immediately become illegal if the Supreme Court follows through with overturning Roe v. Wade, thanks to bans that predate the 1973 ruling — some more than a century old. In many others, 15- and six-week bans, which are currently unconstitutional, would also quickly go into effect.

The attorney general in each of those states, as the state's top lawyer and top law enforcement officer, would have increased authority over whether those bans are enforced.

Republican attorney general candidates in battleground states like Wisconsin and Michigan, where Democratic incumbents have vowed not to enforce decades- and centuries-old pre-Roe bans, have laid out how they would enforce them. The opposite is also true in battlegrounds like Georgia and Arizona, where Democratic challengers are telling voters how they could legally justify not enforcing bans on the books.

“These pre-Roe bans are deeply concerning, because, in a post-Roe world, they become very political in nature, and their enforcement will hinge on who has power,” said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research and policy organization that works to advance sexual and reproductive health and rights. “Where conservatives are in power, for example, we will see these pre-Roe bans on the books enforced.”

Political groups are getting involved, too. The Democratic Attorneys General Association has committed to spend a record $30 million in those four states — Wisconsin, Michigan, Georgia and Arizona — and others to elect Democrats who would protect abortion access, a spokesperson for the group said.

The effort could matter in Wisconsin, where overturning Roe would allow an 1849 law banning abortion in almost all cases to retake effect. The state's Democratic governor, Tony Evers, is up for re-election this year, and both chambers of the Legislature are controlled by Republicans, which is not likely to change after November.

The law would make performing an abortion a felony, with doctors who perform the procedure facing up to six years in prison and thousands of dollars in fines. The law makes an exception only to save the life of the woman — but not for her health or for rape or incest.

Josh Kaul, Wisconsin’s Democratic attorney general, who is up for re-election this fall, said he wouldn’t use the powers of his office to enforce the ban.

Kaul acknowledged that as attorney general, he’d be powerless to prevent local prosecutors from enforcing the state’s ban, but he vowed to lead “significant litigation” to clarify the status of the 173-year-old statute.

Two of the Republicans vying for their party’s nomination in the attorney general’s race said they would enforce it.

Adam Jarchow, a former state representative, said in a statement that if he is elected he would “absolutely enforce the law” and that any changes to the law would have to be made legislatively.

Another Republican candidate, Eric Toney, the Fond du Lac County district attorney, tweeted early this month that abortion “is and always should have been a state issue” and that, if he is elected, he “will enforce and defend the laws as passed by the legislature and signed into law.” Toney didn’t respond to questions.

In Michigan, a 1931 abortion ban that calls for up to four years of prison time for doctors who perform abortions — and possibly women who take medication to induce an abortion — would again take effect if Roe is overturned. The law would ban all abortions except when they are conducted to save the woman’s life. It includes no exceptions for rape or incest. Like Wisconsin, Michigan has a Democratic governor up for re-election this fall and a Republican-controlled Legislature.

Dana Nessel, the Democratic attorney general, has vowed she wouldn’t enforce it if Roe is struck down.

“I have said from the beginning that I would not enforce the law. It violates a constitutional right we have had for the last 50 years,” Nessel said in an interview.

Nessel is part of a lawsuit brought by Democratic Gov. Gretchen Whitmer of Michigan, which seeks to overturn the 91-year-old law and to have abortion rights recognized under the state’s constitution.

Like Kaul, Nessel acknowledged the state’s 83 county prosecutors could still act to enforce the ban, but she suggested she or Whitmer would use their powers — perhaps by filing for restraining orders or orders of protection — to shield people from prosecution.

Nessel’s opponent, Republican Matthew DePerno — whom state Republicans have endorsed as their nominee — has said in interviews and on Twitter that he would enforce the state’s ban. DePerno declined to answer questions.

In Georgia, a Supreme Court decision nullifying Roe would allow a 2019 law signed by Republican Gov. Brain Kemp to go into effect. The law, currently blocked by a federal appeals court, would ban abortions at about six weeks into pregnancy, before many women even know they’re pregnant.

The law includes exceptions for rape and incest if the victims have filed police reports and if doctors have deemed the pregnancies “medically futile.” It includes an exception to not define abortion as “the naturally occurring death of an unborn child, including a miscarriage or stillbirth.”

Republican Attorney General Chris Carr’s office is defending the law in federal court, suggesting his office would enforce it if Roe is struck down. Carr’s office didn’t respond to questions.

State Sen. Jen Jordan, the leading Democrat in the race, said she’d “use whatever tools I have” to “protect the fundamental right” to have an abortion.

Jordan said that if she is elected, she would refuse to enforce the law and sue in state court to challenge the 2019 ban to protect Georgians’ right to privacy in the state constitution.

“If this is where we land, with Roe, you can be sure I’m going to keep fighting,” she said.

Noting that local prosecutors in Georgia could still bring such charges, Jordan said she’d also issue legal guidance and release legal opinions to all prosecutors in the state outlining why their cases lack merit.

In Arizona, overturning Roe would reinstate a 1901 law criminalizing abortion, making it a felony punishable by two to five years in prison for anyone who performs an abortion or even helps a woman obtain one. The law, which dates to before Arizona was a state but has never been repealed, includes an exception to save the woman’s life.

But more recent restrictions have been passed in Arizona, including a law signed in March by Republican Gov. Doug Ducey banning abortions after 15 weeks of pregnancy. The law makes exceptions for medical emergencies but not for rape or incest. It could take effect by late summer if Roe is struck down.

The new law created confusion when it was signed about how it might conflict with the old law, because it didn't explicitly repeal it. Legislators have wrangled over which law should have superseding authority if Roe is overturned.

Mark Brnovich, Arizona's attorney general, is running for the Senate, not for re-election. Several of the Republican candidates running for the party’s nomination have celebrated news of the draft opinion indicating Roe will be overturned, and at least one has said he'd try to enforce the century-old ban on the state’s books.

Attorney Rodney Glassman has said he’d enforce Arizona’s 121-year-old abortion ban and has tweeted that he’d “vigorously” defend the state’s 15-week ban. Abraham Hamadeh, a former prosecutor, tweeted that the leaked draft opinion was a “huge win for life.” Former state Supreme Court Justice Andrew Gould said in a recent interview that he’d be “elated” if Roe were overturned, and lawyer Tiffany Shedd has called for overturning Roe. Glassman, Shedd and Gould did not respond to questions. Hamadeh, who said in a statement that Democrats were pushing “extreme abortion on demand policies,” didn’t respond to questions about whether he would enforce the state’s bans.

Kris Mayes, the only Democrat in the race, said she would “absolutely not’’ enforce either ban. Mayes said she would also use a provision in state law giving the attorney general supervisory authority over county attorneys, meaning she’d exercise the power of her office to prevent those 15 prosecutors from enforcing the bans.

“When I am attorney general, we will never prosecute anyone seeking an abortion or any licensed medical doctors or anyone providing licensed medical care, including abortion care, period,” she said.

With the 2022 midterms being the first election after the high court's decision, Kaul, Wisconsin’s Democratic attorney general, said the outcome in races up and down the ballot this cycle will send a “critical message to people in power.”

“If candidates who support abortion rights do well in the current environment, it lets them know sharply how voters feel about protecting reproductive rights,” he said.

But if that doesn’t happen?

“Lawmakers will just keep taking away people’s individual rights.”