Charging Abortion

Authors

Milan Markovic, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

3-2024

Journal Title

Fordham Law Review

ISSN

0015-704X

Abstract

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases in which abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of antiabortion law are constitutionally suspect and are unlikely to further the public interest. Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience.

First Page

1519

Last Page

1565

Num Pages

47

Volume Number

92

Issue Number

4

Publisher

Fordham Law School

Recommended Citation

Milan Markovic, Charging Abortion, 92 Fordham L. Rev. 1519 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/1974

File Type

PDF