In an open letter, TDP Chair Gilberto Hinojosa and Vice Chair Shay Wyrick Cathey appealed to Democratic sheriffs, district attorneys, county judges and commissioners, constables, and mayors.
“I am writing to you, leaders and chiefs of your respective local governments and law enforcement agencies, to urge you to use your legal authority and discretion to refuse to enforce the provisions of Senate Bill 8, Senate Bill 4, and House Bill 1280: all new laws passed by our extremist, Republican controlled legislature in 2021,” he said.
Five county district attorneys — José Garza of Travis County, John Creuzot of Dallas County, Joe Gonzales of Bexar County, Mark Gonzalez of Nueces County, and Brian Middleton of Fort Bend County — previously stated they would not pursue charges against abortion offenses, and since reiterated that after the Dobbs opinion was released.
Garza added in his own statement, “While I am aware that our state’s ‘trigger law’ goes into effect in 30 days, making performing an abortion a felony, I will not force women into the shadows, especially when they need life-saving medical care.”
“No matter what the law says, I implore you: please, seek medical help if you need it.”
Gonzales seconded Garza’s theme in his own statement, saying, “I took an oath as your Elected District Attorney, not to prosecute, but to seek justice. I will endeavor to ensure that no one in our county is ever prosecuted because they go to a hospital or urgent care facility.”
Creuzot said, “I want women across Texas, and especially here in Dallas County, to rest assured that my office will not stand in the way of them seeking the health care they need.”
Harris County District Attorney Kim Ogg, also a Democrat, took a different approach.
“The criminalization of reproductive health will cause great harm to women in America; prosecutors and police have no role in matters between doctors and patients. As in every case, we will evaluate the facts and make decisions on a case-by-case basis,” Ogg stated.
Meanwhile, Republican Tarrant County District Attorney Sharen Wilson said to The Texan, “We do not choose which laws we follow. My oath and that of everyone in my office is to preserve, protect and defend the Constitution and the laws of the United States and Texas. Prosecutors do not make the law – we follow it. We followed Roe v. Wade when it was the law and we will follow Texas state law now.”
Last session, the state legislature passed the Texas Heartbeat Act, a law that prohibits abortion after a fetal heartbeat is detected and tasks the general public with enforcement through a civil cause of action provision. Under that law, average citizens may sue anyone involved in an abortion except for the mother. Because of the civil enforcement mechanism, in no capacity may the state enforce the prohibition — even stating explicitly as much in the law. Also, it lays out a civil punishment and not a criminal one.
After the law became effective last year, abortions in Texas decreased sharply.
Texas also passed the abortion trigger ban last year, contingent upon a U.S. Supreme Court ruling overturning Roe. That law becomes effective 30 days after the court delivers its judgment — different from the opinion it issued Friday — which could come at any time, according to Texas Attorney General Ken Paxton.
More narrowly tailored, Senate Bill 4 placed restrictions on the prescription of abortion-inducing drugs more than 49 days past the point of inception.
Each of those provisions came in addition to Texas’ pre-Roe abortion laws, which lay out misdemeanor offenses for various facets of an abortion — “furnishing the means of,” and “attempt[ing]” an abortion along with “destroying [an] unborn child.”
“District Attorneys and local law enforcement agencies have significant discretion to decide what cases to prioritize and pursue,” Hinojosa said. “Four [sic] Texas DAs have already promised not to prosecute abortion-related crimes.”
Prosecutorial discretion has enabled district attorneys to pick and choose what to pursue on other issues before. For example, in San Francisco, since-ousted district attorney Chesa Boudin decided to stop prosecuting theft offenses below a certain dollar figure. Creuzot made a similar decision in 2021, minting a policy to not prosecute theft of personal items up to $750 in value so long as they are “stolen out of necessity.”
When passing its election reform bill last year, the Texas legislature tasked the state attorney general with enforcing voter fraud offenses due to concerns over Democratic prosecutors disregarding the new prohibitions. Months later, the state’s top criminal court ruled that only county district attorneys, not the attorney general, may not prosecute such offenses.
At the Texas GOP convention last week, John Seago, president of Texas Right to Life — one of the chief groups behind the Heartbeat Act — described the need to extend the civil cause of action enforcement to other pro-life laws “because we cannot rely on Democratic district attorneys to enforce the law.”
“No matter what the United States Supreme Court says: abortion is a valid, safe, and important healthcare procedure that should never be restricted by any power or authority,” Hinojosa added in his letter.
“When you assumed office, you took an oath to uphold constitutional rights, and to keep your communities safe. You signed up to make hard decisions that would save the lives of your constituents. Now is the time to take action – the health and safety of Texans, and our constitutional rights, are at stake. Please do what is right and refuse to enforce every provision of Texas’ abortion prohibition.”
Update: A statement from Tarrant County District Attorney Sharen Wilson was added.
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.