Democratic AGs Position Themselves as ‘Last Line of Defense’ If Roe Falls

Photo of Dana Nessel, Michigan Attorney General
Dana Nessel refuses to enforce a "draconian" abortion ban from 1931 "that will endanger their lives and put at jeopardy the health, safety, and welfare of the lives of each and every woman in the state of Michigan."

by JESSICA CORBETT, Common Dreams

Democratic state attorneys general and candidates are gearing up to play a key role in the fight for abortion rights in the wake of Politico revealing a U.S. Supreme Court draft opinion that would overturn Roe v. Wade amid the GOP plotting to pass a nationwide ban if they regain control of Congress.

“While this decision is not yet final, this is a moment we’ve been preparing for and we’re already fighting back.”

The reversal of Roe could outlaw abortion in up to 26 states, due to trigger bans and other existing laws, according to the pro-choice Guttmacher Institute.

CNN noted last week that “the inability of Democrats in Washington, despite narrow majorities in Congress and President Joe Biden in the White House, to come up with the votes to pass federal legislation guaranteeing abortion rights—and the likelihood that, even if they were to retain or build on those majorities, action would be difficult—has positioned Democratic state leaders as the last line of defense against Republican efforts to seize on the court’s potential decision and move forward seeking either to ban or severely restrict the right to an abortion.”

Representatives for both the Democratic Governors Association and the Democratic Attorneys General Association (DAGA) pointed to Justice Samuel Alito’s forthcoming opinion as a wake-up call for what is at stake in this year’s state-level races.

“If Roe is overturned, this fight will move squarely into the states,” DAGA communications director Geoff Burgan told CNN, “and we need national donors, both large and small, to recognize that reality and invest in electing Democratic AGs this year.”

A new memo from the organization first reported Friday by The New Republic details plans to boost paid media and services to up to $30 million “in support of incumbent Democratic AGs and DAGA-backed candidates in battleground states like Georgia, Arizona, and others to come.”

In addition to announcing the nearly 40% increase in spending on such races compared to the 2018 campaign cycle, the memo highlights DAGA’s requirement that “endorsed attorneys general and candidates must publicly support abortion access and reproductive healthcare.

The memo came after DAGA co-chairs Aaron Ford of Nevada and Kathy Jennings of Delaware released a statement calling news of the draft opinion “devastating and disturbing.”

“While this decision is not yet final, this is a moment we’ve been preparing for and we’re already fighting back,” they said. “Since 2019, we’ve been the only Democratic political committee with an explicit litmus test for supporting abortion access, and we are doubling down on the importance of protecting this right, especially if Roe falls and the right to abortion care is dismantled.”

“We must show up at the ballot box this year and vote to protect abortion access,” the pair added. “Alongside leaders in the reproductive rights movement, we are proud to be part of this fight and will never let up on ensuring the people of our states can access reproductive healthcare safely.”

Ford, Jennings, and other Democratic AGs have also spoken out individually since the leak.

Wisconsin’s Democratic AG, Josh Kaul—who is seeking reelection this year—said that “because of the importance of the freedom at stake, but also because of the need to use our resources as efficiently as possible,” the state Department of Justice won’t investigate or prosecute alleged violations of an 1849 abortion ban that could take effect if Roe is reversed.

“As long as I’m attorney general, we will not be using any resources for those purposes,” Kaul told the Wisconsin State Journal, also noting that his agency has the authority to provide legal guidance to district attorneys and training to law enforcement.

“I do not think that a ban on abortion should be enforced by any DA or law enforcement agency,” he said, “both because it infringes on a fundamental freedom, but also because the resources of those agencies, and DOJ likewise, are much better used investigating things like violent crime or drug trafficking and should not be going towards trying to prosecute people for their involvement in abortions.

Democratic attorney general candidates are also speaking out—like Kris Mayes, who told Politico that “I’m going to make it clear to Arizonans that they can protect reproductive rights by electing me AG.”

Georgia state Sen. Jen Jordan (D-6), an AG hopeful who’s known nationally for advocating for abortion rights, has vowed not to enforce a six-week state ban that could take effect.

In Politico‘s Monday report—highlighting how Democrats have been “pitching themselves as the last line of defense for the right to terminate a pregnancy” since even before Alito’s draft became public—Jordan noted a shift since former President Donald Trump’s days in office.

“During the Trump years the AGs were trying to protect their constituents from the overreach of the administration and policies they saw as both unconstitutional and likely to hurt people. But what’s interesting is that now AGs are having to stand up to overreach from their own states,” she said. “Our legislature—House and Senate—is controlled by Republicans and thanks to gerrymandering that’s not going away anytime soon. So the only person standing in the gap would be an AG.”

Democratic Michigan Attorney General Dana Nessel—whose office last month filed Democratic Gov. Gretchen Whitmer’s suit to strike down the state’s 1931 abortion ban—is up for reelection this fall and has similarly pledged not to enforce the law if it takes effect. She discussed her position Sunday on NBC‘s “Meet the Press.”

“Well, there’s 83 duly elected prosecutors for every county in our state. As attorney general, I have statewide jurisdiction. And I ran on a platform of understanding that likely during the course of my term, Roe v. Wade would be overturned,” she said. “And this incredibly draconian and strict 1931 law would criminalize abortion in this state with virtually no exceptions—no exception for rape, for incest, no exception for medical emergencies.”

“And understanding that the lives of our 2.2 million women who are of childbearing age in this state, their lives would be at risk,” she continued. “I refuse to enforce this draconian law that will endanger their lives and put at jeopardy the health, safety, and welfare of the lives of each and every woman in the state of Michigan.”

Nessel reiterated her commitment to protecting the lives of Michiganders who would be endangered by the looming reinstatement of the ban in Politico‘s Monday report.

“The AG is an absolutely pivotal position,” she also said. “We are not only the one authority with the power to prosecute cases in all counties in the state, but we also have unique oversight authorities when it comes to licensing and regulation.”

Meanwhile, in states friendlier to reproductive rights, top officials are preparing for an influx of patients who can’t access abortions where they live.

Democratic New York Attorney General Letitia James joined with state Sen. Cordell Cleare (D-30) and Assemblymember Jessica González-Rojas (D-34) to announce a bill that would establish the Reproductive Freedom and Equity Program, which would increase resources for abortion providers in the state.

“We know what happens when women are unable to control their own bodies and make their own choices and we will not go back to those dark times,” James declared. “New York must lead the fight to keep abortion safe and accessible for all who seek it.”

The legislation, she added, “will ensure that low-income New Yorkers and people from states that ban abortion have access to the care they need and deserve. No matter what happens in the weeks to come, New York will always fight to protect our right to make decisions about our own bodies and expand access to this critical and lifesaving care.”

This post has been updated with details about the lawsuit in Michigan.

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