How Pro-Abortion District Attorneys Aim to Derail Pro-Life Laws

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In the wake of the Supreme Court striking down Roe v. Wade and returning the issue of abortion to the American people and their local elected representatives, a gaggle of leftist district attorneys said they won’t enforce laws enacted to protect the unborn.

Some of those rogue district attorneys are from pro-life states and might attempt to stymie efforts by state legislatures to protect life.

Cully Stimson, a senior legal fellow at The Heritage Foundation, is not surprised, and says that those district attorneys have already refused to enforce other laws, against violence and petty crime, among other things. (The Daily Signal is the news outlet of The Heritage Foundation.)

The tactic of not enforcing some of the laws that their state legislatures pass and their governors sign “is not a new play for them,” says Stimson. “So, it’s not surprising that they’re virtue signaling and trying to [capitalize] on the anti-Dobbs hysteria on the left and hold themselves out as defenders of freedom and all the rest of it.” (The Supreme Court’s June 24 ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe, the 1973 ruling that legalized abortion nationwide.)

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Worse, there’s no way to get the anti-abortion laws enforced if the rogue district attorneys decide they won’t cooperate.

“Remember, the prosecutor—not the police officer, not the mayor, not the governor—is the gatekeeper to the criminal justice system,” explains Stimson. “So, police can arrest people for committing crimes that are on the books, but if the DA says, ‘Sorry, Officer Schmuckatelli, we’re not going to bring that case and file it in court.’ That’s the end of the line.”

Thankfully, there’s a possible solution. As we’ve seen even in liberal San Francisco, which recently recalled its leftist prosecutor, Chesa Boudin, the people can take matters into their own hands and recall district attorneys who won’t do their jobs.

“Find out from your DA whether they believe in reimagining prosecution and not asking for bail even for repeat criminals, and not fully enforcing the law,” recommends Stimson. “Because if they are following [leftist billionaire George Soros’] bought-and-paid-for playbook or inspirational playbook, or the playbook from the Fair and Just Prosecution … then you’re going to know that you’re going to have a crime problem in your city.”

Stimson joins the show to discuss the implications of district attorneys refusing to prosecute abortion-related crimes, and what Americans can do to hold them accountable. 

We also cover these stories:

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Listen to the podcast below or read the lightly edited transcript:

Doug Blair: My guest today is Cully Stimson, deputy director at the Heritage Foundation’s Legal Study Center and a senior legal fellow. Cully, welcome to the show.

Cully Stimson: Great to be back with you.

Blair: Of course. In the aftermath of the Dobbs decision to overturn Roe, a letter signed by several rogue prosecutors, or these are district attorneys who won’t enforce the law, indicated that these same prosecutors will not enforce laws specifically banning abortions or punishing people who go against pro-life laws in the states. So, first of all, can they legally do this?

Stimson: This tactic of not enforcing the law that their state legislature passes and their governor signs is not a new play for them, so it’s not surprising that they’re virtue signaling and trying to capture on the anti-Dobbs hysteria on the left and hold themselves out as defenders of freedom and all the rest of it. When, in fact, ever since they’ve been elected in their various counties, they’ve refused to prosecute all sorts of laws. So, this is just part and parcel not only of their pro-criminal, anti-victim crusade, but it’s also, I think, a fundraising opportunity for them to get more money from people who, for whatever reason, don’t like the Dobbs decision.

Blair: Now, you’re saying this is something that’s kind of par for the course, like we see in San Francisco that they refuse to enforce these laws. Is that something similar? You’re just adding these post -Dobbs laws on top of that?

Stimson: Right. Well, first off, I mean, the dust hasn’t even settled, Doug, and we don’t know what states, if any, will necessarily criminalize abortion. But to the extent that some states would pass a law to make it a misdemeanor either for a doctor to perform an abortion or a person to seek one in their state, these prosecutors are jumping out ahead of the news cycle, essentially, to say that we will refuse to file cases in those situations. Now, remember, the prosecutor, not the police officer, not the mayor, not the governor, is the gatekeeper to the criminal justice system, as we’ve written about in our rogue prosecutor series. So, police can arrest people for committing crimes that are on the books, but if the DA says, “Sorry, Officer Schmuckatelli, we’re not going to bring that case and file it in court.” That’s the end of the line. There’s no appeal for a citizen or an aggrieved party or victim to go around the prosecutor. And so, these prosecutors have already been refusing to prosecute thousands of types of crimes around the country, so this is just another anticipatory prosecutorial nullification, which is what they’re talking about.

Blair: Now, the letter contains several different prosecutors and they come from a wide gamut of states. Some of them are from places like Texas and Mississippi, which already have some pretty strict laws on the books regarding abortion. How does the refusal by these prosecutors to enforce these laws affect the cause of life in those pro-life states?

Stimson: Too early to tell. So, we don’t know what, if any, cases could be brought or have tried to be brought and these DAs refuse. I’m sure they’ll bang on a gong as soon as they come up with a case that they refuse to try to draw attention to themselves. This is a new breed of prosecutor. These really aren’t prosecutors. These are people who run for the DA, and there’s 2,300 DA offices around the country that people can run for at the local level, whose vision is that the entire criminal justice system is racist. Of course it’s not. But the only way to ameliorate or fix that problem, which they see as a problem, is to “fundamentally reverse engineer and dismantle” the criminal justice system. And that’s a quote from one of their key cheerleaders, Rachel Barkow who was on the US Sentencing Commission who’s written extensively about the rogue prosecutor movement.

So, I suspect that when there are cases that, for example, let’s say in a particular state, a physician or physician’s group decides to perform abortions against the law of the state, and that physician happens to be in a city where there’s a rogue prosecutor, there’ll be an unholy alliance between that physician who’s breaking the law and the prosecutor who refuses to enforce the law. And then they’ll garner media attention for themselves and use it as an opportunity to not only puff themselves up, but also to fundraise for these rogue prosecutors.

Blair: Given that we have seen in other states there are rogue prosecutors already who have refused to enforce the law, and this is an elected position, are there any things that conservative governors or maybe lawmakers in those states can do to force them to enforce the law? Is there an impeachment process?

Stimson: Well, what’s interesting is we’ve already seen the liberal residents of San Francisco get fed up with and boot their rogue prosecutor Chesa Boudin just a few weeks ago. Now, this is the son of terrorists, the Weather Underground terrorists who, when his mommy and daddy went to prison, he then gets raised by Bernardine Dohrn and Bill Ayers. Talk about going from a radical group of parent to a radical group of parent type folks. He was also the translator for Hugo Chavez before he went off to Yale Law School. And then he was a federal defender for a long time before he was the DA. So, this is not a Republican or Democrat thing. This is not a conservative or liberal thing. This is whether or not you’re going to enforce the law, and you believe in law and order and holding people accountable for crimes, or you don’t. And that’s chaos. Right? That’s an anti-law and order move.

So, whether or not the citizens of LA will successfully recall George Gascon… They needed 566,000 signatures by yesterday. They turned in 717,000 signatures to the registrar of voters so that registrar can certify that. There’s a different procedure in every state, in every county, so there’s no one way it’s done. Here in Fairfax, Virginia across the river, if you were to recall Steve Descano who’s the little roguey that got a 72% or so of his campaign funds from George Soros directly, he would actually have to have a trial in front of a circuit court judge without a jury to find out whether he abused his office. So, it’s different everywhere around the country.

The key is for people, whether they’re Democrats or Republicans, whatever they are, if they’re concerned about law and order, and it’s a big problem in a lot of cities, find out from your DA whether they believe in reimagining prosecution and not asking for bail even for repeat criminals, and not fully enforcing the law, because if they are following that Soros bought and paid for playbook or inspirational playbook, or the playbook from the Fair and Just Prosecution, which is neither fair nor just, but one of these Soros cutouts, then you’re going to know that you’re going to have a crime problem in your city.

Blair: Right. One of the things that struck me as I was reading this letter is one of the prosecutors was Mike Schmidt, which is the rogue district attorney from my hometown of Portland, Oregon. It got me thinking, though, that Oregon is never, at least in the near future, going to ban abortion. It’s a pretty pro-abortion state. As you mentioned, is it more symbolic that they’re doing this in those types of states, or is there any actual possibility that they could affect pro-life states by the fact that they are also not going to prosecute abortions?

Stimson: Well, for the Mike Schmitts of the world who’s the prosecutor in Portland… And Oregon, obviously, as you mentioned, is a lefty state. They’re not going to have a law. And so, it’s just, this is virtue signaling that he’s signing onto a letter like this. Oregon’s probably not going to turn red in the near future, and so Mike Schmitt and the Mike Schmitts on this letter who sit safely in a blue city in a blue state, they’re just virtue signaling and joining the gaggle of other prosecutors who are beating their chest and pretending they’re out there as defenders of freedom and liberty. The irony in their letter is that… It’s available on the Fair and Just Prosecution website or some of these other places. They say, “As elected prosecutors, when we stand in court, we have the privilege and obligation to represent the people. Criminalizing and prosecuting individuals who seek to provide abortion care makes a mockery of justice. Prosecutors should not be part of that.” Well, you know what’s interesting is the people that they care the most about are criminals.

Why would you allow, why would you publish a list, which is what most of these rogue prosecutors do, of all the crimes you can commit in their city? Possession with intent to distribute any drug, including fentanyl, breaking and entering, vandalism, malicious destruction of property, prostitution, drug offenses, possession of any drug. You see these videos of these thefts going on in San Francisco and all these other cities where people do it brazenly, broad daylight, armfuls of stuff, and walk out. Look, we don’t have a perfect criminal justice system, but we have a criminal justice system that’s spread throughout the 50 states and all the counties out there, and it’s populated by people. And the state legislatures and the governors and the stakeholders in those criminal justice systems do the best they can to better the system year in and year out.

And it’s a compassionate system. It’s a system where, believe it or not, we’ve had falling crime rates for the last 30 years and falling incarceration rates, dramatic falling incarceration rates since 2008, yet in these cities where you have that toxic trio of rogue prosecutors, defund the police, and demoralize the police, crime has been spiking. Why? Because they refuse to enforce the law. And you don’t hold people accountable. And holding people accountable, Doug, does not mean sending them to jail. Most misdemeanants who get convicted don’t go to jail. They don’t see a day in jail. But you hold them accountable to help them get back on the right path, which is what we want all citizens to be on.

Blair: Specifically speaking about abortion, though, it does seem like there will be a negative impact on the culture of life and the ability to protect life in states that have had their legislatures determined that they want to pass pro-life laws, but have rogue prosecutors normally, it seems like, in big cities who will just refuse to do that. So, I guess, again, my question here is what is the implication going to be if these prosecutors who refuse to enforce the laws anyway are now sticking another obstacle in us being able to protect life?

Stimson: So, in addition to the potential to recall that rogue prosecutor, depending on the state law or the county recall mechanism, there are some mechanisms in states that allow the state attorney general to reach in around the elected county DA to enforce the law. Now, whether on a state by state basis there’ll be the availability of that reach around by state AGs to take a case away from the rogue prosecutor, that’s going to be determined on a state by state basis.

So, for example, in a slightly related context, in Virginia, you have these protests, which you’ve been doing an outstanding job covering in front of justices’ homes, not only in Virginia, but Maryland too, as you know, and in Virginia, Steve Descano refuses to enforce the state law. There’s an open discussion about whether Jason Miyares, the AG in the state of Virginia, can reach around Descano and enforce state law. They’ve put Steve Descano on notice. He refuses to enforce the law. So, we’ll see whether the state AG, who’s a good guy, can do that. And we’ll see in these other states where the state legislature, the people who should be deciding this, decide to criminalize the facilitation of abortions, and you have a rogue DA, whether the state AG, or there’s another mechanism to enforce that law.

Blair: Now, the public obviously has a view of this. If they elect these certain state legislators, they clearly want them to act in a way that they voted them in for. Are we seeing pushback from the public towards these rogue prosecutors? You mentioned Chesa Boudin, but are we seeing other pushbacks across the country to these rogue prosecutors who aren’t enforcing the will of the people?

Stimson: We are, and the irony is that even though Chesa Boudin hilariously blamed his recall on Republicans, that’s 6% of registered voters in San Francisco. Very blue city and state. The pushback and the outcry is coming from citizens of those inner cities, and they’re usually black and brown minorities, especially women.

And so, for example, in LA, for the last year and a half, you’ve had victims rights groups and a group, believe it or not, it exists, parents of murdered children… You don’t want to be a member of that group. They’ve been very vocal about George Gascon. You hear victims rights groups not as vocal and not as organized in Philadelphia where Larry Krasner is the rogue prosecutor, Marilyn Mosby is fortunate because even though she’s just a horrendous leader and a terrible rogue prosecutor in Baltimore, you don’t have organized victims rights groups in Maryland, but in Chicago, more are starting to speak up about Kim Fox, more starting to speak up in St. Louis about Kim Gardner who’s the rogue DA there.

And so, it’s the left and the minorities who these rogue prosecutors pretend to care the most about who are the most injured by their prosecutorial nullification. And they’re the ones who are funding these recalls and they’re the ones who are the most vocal about these recalls.

Blair: As we wrap up, I’m curious, so let’s say we have a situation like a Chesa Boudin where he is just recalled and now you have an opening where somebody who believes that the rule of law should be enforced is able to be inserted, how is it that we solidify these gains and say, “No, you are not going to be a rogue prosecutor; you’re going to enforce the law”? How do we ensure that that happens?

Stimson: Well, I think it goes back to first principles. Candidates who believe in the rule of law and believe in the separation of powers, that DA enforces the law as part of the executive branch, the legislature and the legislature only passes the law, doesn’t matter if it’s a Republican or Democrat who’s running for DA, in these big inner cities, the person who wins the Democratic primary is going to win the seat. But as long as it’s a person who’s actually not going to be as Soros bought and paid for stooge, a rogue prosecutor, but a law and order, fair and compassionate, but law and order prosecutor, that’s how you ameliorate this scourge across the country which, by the way, is failing.

Chesa Boudin lost. George Gascon is probably going to be recalled. Marilyn Mosby’s under federal indictment. Kim Fox in Chicago has more murders in her city on any weekend than there were deaths, combat deaths, at the height of the surge in Iraq and Afghanistan. So, these are combat zones. They’re just putting their head in the sand and pretending it’s not happening in their cities and that it’s not their fault, and of course, it’s entirely their fault.

Blair: Okay. Well, that was Cully Stimson, deputy director at the Heritage Foundation’s Legal Study Center and a senior legal fellow. Cully, thank you so much for your time.

Stimson: Thank you.

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