Here’s How to Deal With Pro-Abortion DAs Who Won’t Enforce Abortion Bans

Opinion   |   Joe Kral   |   Jun 21, 2022   |   12:06PM   |   Washington, DC

It is becoming clearer that with the likely overturn of Roe coming very soon, some pro-abortion District
Attorney’s that have been elected in states where Abortion Trigger Bans have passed have openly
declared war on their states’ pro-life law. 1

Abortion Trigger Bans, of course, are those laws that have been passed in states that will be triggered into effect where abortion will be banned when Roe is overturned. Many of these DA’s have simply said that they will declare enforcing these bans a low priority for them, indicating that they will unlikely charge any abortionist for performing an abortion within their jurisdiction.

This, of course, poses a problem with regard to enforcing the pro-life Abortion Trigger Ban that has gone
into effect. While none of these Abortion Trigger Bans have provisions that would prosecute the
mother, the intention is to target the abortionist and the abortion providers in general. In essence, if the
law were to be enforced, it would be the abortionist or those who work for the abortionist who would
be prosecuted. By making the pronouncement that they will refuse to enforce the pro-life law, these
DA’s have essentially have done two things: 1) they have said that it is safe for abortion practitioners to
practice and perform abortions within their jurisdiction by 2) gutting the enforcement of the law within
their jurisdictions.

Naturally, most pro-lifers will ask, what can be done to prevent this from happening? Thankfully, there
are a couple of avenues that can be pursued to quash these DA’s who are simply refusing to do their
jobs and simply do not understand the necessity of a true Culture of Life.

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Option One: The State Attorney General

Some states may have the option to allow the State Attorney General’s office to investigate and
prosecute these offenders in the case where these DA’s refuse to prosecute. However, there are some
states where that may not be the case or it is sufficiently unclear. Some states may wish to pass
legislation granting the State Attorney General’s office the authority to investigate and prosecute in the
case where a local DA refuses.

In some ways, these local DA’s are begging for a political fight with their state legislatures and state
attorneys general offices. In some other ways it is political grandstanding. A solid red state is highly likely
to pass such legislation precisely because it will want to see it’s pro-life Abortion Ban be effective. Some
local DA’s may lobby against it, but those efforts will very likely fail.
The benefit of such legislation, is that the state has the resources to properly investigate and then
prosecute those who violate the law. But the most important benefit is that it brings that local
jurisdiction within conformity with the rest of the state. This is a very important point here that will be
discussed below.

Option Two: Pro-Life Private Enforcement Mechanism

Some other states may wish to simply add another mechanism of enforcement, that is the private
enforcement mechanism. This type of enforcement mechanism is quite well-known since it the
mechanism that allows private citizens, any citizen, to sue the abortionist or those who help provide for
the abortion, for violating the law. This mechanism is most notorious for being a provision within Texas’
Fetal Heartbeat Law. It has become a model for Idaho’s Fetal Heartbeat Law and Oklahoma’s Abortion

Ban. This mechanism is also attached to many of the Sanctuary for the Unborn Ordinances that have
passed in various cities across the nation.

Again, there is a conformity within the state insofar as the law is being enforced. In some jurisdictions
the Abortion Ban will be enforced by the local DA’s who will use criminal penalties and possibly those
local citizens who will sue violators by using civil penalties. In other jurisdictions, it will be those who will
simply sue the violators by just using the civil penalty enforcement provision of the law. The point being,
the law is enforced and the local DA has no power to stop it from being enforced. Again, as history has
shown, specifically with the Texas Fetal Heartbeat Law, it will stop abortionists.

The Importance of Enforcement:

As has been discussed, by not enforcing the law, the law essentially becomes ineffective. When a DA
states that they will refuse to prosecute an abortionist, even though abortion is illegal, they have
undercut the law. Here, one can get into the more philosophical aspects of the need for enforcement.
What is it for? The short answer is justice. Classically defined, justice is that which is due to the other.
“Due” being the operative word.

But who is due what exactly? Generally speaking, under an Abortion Trigger Ban that has gone into
effect, it is the unborn child who is to receive justice since it is the moral duty of all the members of
society not to harm the child. But when the law is violated and the unborn child is harmed, justice is still
owed. This time however, justice must be rendered in a different fashion, and that is to ensure that
restitution takes place for the egregious harm that has taken place. So, in the case of someone violating
the law, the violator must face what is due to him, namely restitution to society for breaking the law.

This restitution is important, because it acts as an educator and reformer of sorts. Law, being the great
teacher is meant to educate what sorts of behavior are acceptable by citizens. Clearly, the vast majority
of people within the state would not perform abortions or help in any manner for two particular
reasons: 1) the see the goodness behind the law and wish to follow it willingly or 2) they do not wish to
be punished. The second option is for the less virtuous in society and the reason why laws need
enforcement. The goal, and the reason why law is the great teacher, is to help the citizen see the virtue
behind the law. In this case, it is to show why it is just to protect the life of the unborn baby.

The fact that any DA refuses to enforce a law that prevents the killing of an innocent human being in his
or her most defenseless stages of development truly shows a lack of understanding of what justice is. It
also shows that the DA truly does not really understand what law is at the most basic of philosophical
levels. By denying what is owed to the criminal (restitution), the DA denies what is owed to the unborn
child (his right to life). As a result, justice fails to reach the society as a whole because it does not ensure
that the moral duty to protect the right to life of others is truly enforced by the law.

This is why it is paramount for red states with Abortion Trigger Bans that have blue city DA’s who have
stated that they will not enforce the state law protecting the unborn need to pass one of the two
aforementioned options. To truly move toward a Culture of Life, the state must ensure that provisions
are made that these Abortion Trigger Bans are somehow enforced statewide.

1 Christie, Bob & Salter, Jim, “If Roe Falls, Some DAs Won’t Enforce Anti-Abortion Laws”, Associated Press, June 16, 2022.

LifeNews Note: Joe Kral, M.A., is the President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.