FFRF to AGs and DAs: Pledge not to enforce criminal abortion laws

Kaul Descano

The Freedom From Religion Foundation calls on every attorney general and district attorney to publicly pledge not to enforce criminal abortion laws.

The national state/church watchdog urges attorneys general to follow in the footsteps of Wisconsin Attorney General Josh Kaul, who has publicly pledged to not use government resources to enforce laws criminalizing or banning abortion care. Wisconsin is one of nine states with abortion bans predating Roe v. Wade still lurking on the books that will go into effect when the Supreme Court overturns Roe later this month (as is expected). In fact, Wisconsin’s law not only predates the Roe decision, but the Civil War! It was adopted in 1849 long before women had the right to vote or birth control advances were made.

Kaul’s call to action is vital not just in these nine states but overall in about half our states where male-dominated legislatures, to their shame and discredit, have adopted a series either of new anti-abortion bans or “trigger laws” intended to go into effect when the current extremist Supreme Court overturns the 7-2 landmark decision by the 1973 high court.

“I do not think that a ban on abortion should be enforced by any DA or law-enforcement agency,” Kaul has said.

Laudably, Steve Descano, the attorney for Fairfax County, Va., wrote a strong guest essay for the New York Times this week, announcing he has likewise “committed to never prosecute a woman for making her own health care decisions.” While there is no abortion ban yet in Virginia, the governor has committed to “going on the offense” against legal abortion. When Roe is overturned, it will unleash a veritable civil war against legal abortion, engendering constant legislative battles even in more liberal states, necessitating that AGs and DAs everywhere take the pledge.

Abortion bans endanger not just women pursuing termination of a pregnancy, but also women tragically suffering miscarriages. They, too, may be treated like criminals. Descano points out that this is not alarmist, since it is already happening — with 1,700 women arrested or prosecuted  from 1973 to 2020 for charges related to loss of pregnancy.

Nearly one in four women in the United States today will have an abortion by age 45, with 18 percent of pregnancies ending in abortion, showing that abortion is a normal part of health care. Polls consistently show that a majority of Americans, regardless of their views on religion, believe the Supreme Court should uphold Roe v. Wade, ranging from 54 percent to 75 percent to 75 percent, depending on how questions are worded.

FFRF’s own membership survey data have found that 98.8 percent support abortion rights. The campaign to decriminalize abortion rights was integral to the founding of our educational association. It was the pioneering work of FFRF’s principal founder, Anne Nicol Gaylor, as an abortion rights proponent in Wisconsin and at the national level in the late 1960s and early ’70s , which opened her eyes to the harm of religious dogma and doctrine being enshrined in our secular laws and social policies.

Major life decisions must be left to the individual, and not the state — much less the church. It is self-evident that the same government that can force an unwilling individual to give birth against her will could likewise force an individual with a wanted pregnancy to end it. Reproductive tyranny is a common element in all totalitarian regimes — including theocracies.

Anti-abortion laws equate personhood with conception. This is a theological and religious position, primarily based on the religious concept of ensoulment, and a viewpoint that pregnancy is “God’s will.” These are religious beliefs, which a public official in our free and secular nation may not ethically enforce. Government actors may not take sides on a matter that must be left to individual conscience.

We know that it won’t be long before emboldened anti-abortion legislators clamor to jail women having abortions — if not to put them to death. Indeed, state legislators in Texas have introduced bills recently and in the past carrying the death penalty for women having abortions and physicians performing them.

Such a prospect makes it all the more urgent for law enforcers to pledge their fidelity to reproductive liberty. As Descano writes, prosecutors have unique discretion to decide which cases to pursue: “For hundreds of thousands of American women, access to an abortion soon may depend not only on which state they live in but also on how hard-line their local prosecutor is. That’s why I hope prosecutors across the country will join me in choosing to lead on behalf of the women we represent.”

As he chillingly adds, he took an oath to protect the community from those who break the law. However, he remarks, “The real threat, I now realize, may stem from those who write the law.”

Those who are currently writing (and interpreting) the law are all-too-often Christian nationalists and religious extremists presenting a clear and present danger to women’s rights, women’s lives and our secular republic.

Freedom From Religion Foundation

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