Will Religious Freedom Exemptions Protect Prosecutors Who Refuse to Enforce New Abortion Laws?

In arguing bakers shouldn’t have to make cakes for LGBTQ weddings, religious conservatives may have created an opportunity for prosecutors and law enforcement officers to ignore draconian new abortion laws.

Gray Scale Photo of a Pregnant Woman, Pixabay

istrict Attorneys have begun speaking out publicly about their intent to refuse to prosecute women under so called “fetal heart beat” bills that seek to severely restrict and even ban abortion. While the Alabama law is the strictest in the nation, similar bills have passed in the South and Midwest. In recent weeks prosecutors in Utah and Georgia have issues statements or interviews objecting to the use of proprietorial resources to enforce what they deem unconstitutional laws.

While thus far prosecutors have tended to cite pending Supreme Court challenges as the basis for their refusals, religious efforts to create exemptions for pharmacists who don’t want to fill birth control prescriptions, or bakers who object to making a cake for a gay wedding may have inadvertently laid the groundwork for widespread conscientious objection. This effort to normalize the idea employees can legitimately refuse to do things they find morally objectionable cuts both ways. Especially since these bans are widely unpopular, it’s hard to see prosecutors in any but the most conservative areas taking much heat or being voted out of office for refusing to divert resources from going after criminals to prosecuting women who had abortions. While the bill language is unclear whether women themselves would be charged, the language does not preclude such prosecutions and they have been a concern in public debate around the bills.

Ironically, religious conservatives may have so normalized the idea that employees can object to fulfilling certain job duties on moral grounds that even absent codified legal protections, public opinion alone will offer prosecutors and law enforcement the ability to simply ignore key provisions of the bills.

While State’s could still appoint a special prosecutor, prosecutors routinely chose not to pursue cases for which they lack sufficient evidence or resources, or have uncooperative witnesses. Most courts are chronically backlogged and underfunded under their current caseloads. A refusal to pursue cases by prosecutors would undermine the law and create significant enforcement challenges.

Choosing to not enforece does nothing to solve the issue of ensuring safe and legal access to abortion for American women, and it doesn’t protect against overzealous prosecutors, but it’s at least a worth noting. These laws still urgently need to be overturned, but until they are all opportunities to oppose them need to be on the table. Even if those options are problematic in their own right, and a sign of the deepening culture war taking place.

I write about economics, technology and media. My views are my own.

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