Abortion is shaking up attorneys general races and exposing limits to their powers

Reviewed by Emily Henderson, B.Sc.Aug 19 2022

As the country grapples with states' newfound power to regulate abortion in the aftermath of this summer's U.S. Supreme Court decision, state attorney general candidates are staking claims on what they'll do to fight or defend access to abortion — and that's attracting cash and votes.

"By pretty much every indicator there is in a campaign, the Dobbs decision has energized and supercharged our race," said Kris Mayes, a Democrat running for attorney general in Arizona. "People are outraged about this, and you can feel it in the air."

But they aren't the only ones who may be testing the laws. The winners of local prosecutorial races will also shape the legal landscape, and, in many states, an attorney general's ability to bring criminal abortion cases to court ends at a local prosecutor's doorstep. Called district attorneys, prosecutors, and various other names across the country, these lawyers — not the attorneys general — would make the final decisions on whether criminal charges can be brought against people seeking abortion or the medical professionals that provide them.

The exceptions include states such as Delaware and Rhode Island, which have distinct attorney general and local prosecutorial structures, said David LaBahn, president and CEO of the Association of Prosecuting Attorneys.

In Georgia, several Democratic district attorneys have said they won't prosecute people for violating a state law that bans most abortions starting at about six weeks. Although abortion is already figuring into the attorney general race, that office has limited power to step in and stop such local decisions.

Michigan's attorney general, Democrat Dana Nessel, who is running for reelection, has said she would not enforce a contested 1931 state abortion ban that does not provide for any exceptions in situations like incest or for the health of the mother. And on Friday, a state judge blocked an effort by local Republican prosecuting attorneys to charge people under that statute.

Democrat Kimberly Graham, an Iowa county attorney candidate, has declared that she would not prosecute doctors or people for abortion care. She noted that the Supreme Court's June decision in Dobbs v. Jackson Women's Health Organization has highlighted how little people realize the "scary amount of discretion and power" prosecutors have.

"The only real accountability to that is called the ballot box," she said. "Hopefully, among other things, people will start paying more attention to the county attorney and DA races and realizing how incredibly important these positions have always been."

It's not clear how many county attorneys and district attorneys will decide to enforce or fight their state abortion policies. But that leads to an uncertain legal landscape, said former Maine Attorney General James Tierney, a Democrat who is now a Harvard Law School lecturer. "We're talking real chaos here," he said.

Some officials have worked to give more jurisdictional powers to attorneys general and governors to bring criminal cases against people who provide abortions and organizations that help people access abortions.

A Texas law set to take effect in late August will give Attorney General Ken Paxton the power to override local district attorneys and go after providers and abortion funds that give money to those seeking abortion care. Previously, Paxton, who is running for reelection and is under indictment on securities fraud charges, has offered his office's resources to local district attorneys who wish to prosecute abortion providers.

On Aug. 4, Florida Gov. Ron DeSantis, a Republican, suspended State Attorney Andrew Warren for what he said was a refusal to enforce state laws on a range of issues that included abortion.

Paul Nolette, chair of the political science department at Marquette University, said he expects other states to give attorneys general more power — and take away local control from prosecutors.

Even as the power struggles ramp up, candidates for attorney general say that voters don't really understand the limits on the office's authority and that voter engagement in their races remains high. Thirty states have attorneys general slots up for election this year, with close races in Arizona, Georgia, Iowa, Michigan, Nevada, and Wisconsin.

Jen Jordan, a Democratic state senator who's running to unseat incumbent Georgia Republican Attorney General Chris Carr, said voters "see what the holder of the office says or does and then begin to believe that is the actual role of the attorney general." But she acknowledged the limits of the office: "I can’t make a promise that a woman would not be prosecuted by a local district attorney, because they have separate constitutional powers."

The abortion fight comes as attorneys general have become more activist and gained power in the political system, Nolette said. In recent years, as money poured into races after the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission — which allowed corporations and donor groups to spend an unlimited amount of money on elections — attorneys general have emphasized their partisan fights over more traditional aspects of the job, such as consumer protections, Nolette said.

"It's part of the AGs becoming the legal culture warriors on both sides," he said.

The Dobbs decision increased interest in donating to Democratic attorney general candidates, said Emily Trifone, a spokesperson for the Democratic Attorneys General Association. Trifone said that the day the decision was released, the group raised 15 times what they did the day before. It also outraised the usually dominant Republican Attorneys General Association in that quarterly filing period.

Michigan's Nessel said she felt as though no one was paying attention to her reelection race until Dobbs. Her Republican challenger, Matt DePerno, has said he would uphold the state's contested 1931 law, which allows felony manslaughter charges against providers. In response, her team put out an ad highlighting his remarks opposing abortion ban exceptions in cases of rape or incest or to save the life of the patient. Since the Dobbs decision, Nessel went from being neck and neck in polls to having a slight lead.

In the wake of the Dobbs ruling, the term-limited Arizona attorney general, Republican Mark Brnovich, has tried to revive a century-old state abortion ban that was put on hold in 1973 after Roe v. Wade was decided. The Democratic candidate, Mayes, argued the law violates the privacy guarantees in the Arizona state constitution and said she would "fight like hell" to keep it from taking effect. Her Republican opponent, former Maricopa County prosecutor Abraham Hamadeh, has said he would enforce it, which Mayes said the attorney general can do in Arizona.

Thus far this year, most broadcast TV ads in attorney general races haven't mentioned abortion, according to an analysis run through Aug. 14 by media monitoring firm Kantar/CMAG requested by KHN. Yet it's still early in election season. The Democratic Attorneys General Association recently launched a five-figure digital ad buy about abortion for the races in Texas, Michigan, and Nevada.

But 10 times as much money has been spent on attorney general campaign ads with pro-abortion rights sentiments compared with ads that have anti-abortion sentiments, the Kantar/CMAG analysis found.

The divergence on abortion mentions in the ads tracks with what Brian Robinson, a longtime Republican operative in Georgia, has seen. Democratic candidates want to keep talking about Dobbs because they feel as though it benefits their campaigns, Robinson said, while Republicans think they've already addressed the issue. "We’re not playing that game," Robinson said. "We’re going to talk about crime and the economy."

RAGA Executive Director Peter Bisbee said in a statement that elected state legislators decide abortion policy and that Democratic attorneys general should enforce the laws of their states.

Nessel pointed out that local prosecutors have always had the discretion to charge or not charge what they choose. That even includes adultery laws on the books, she said.

Still, it could take some time to see how those local district attorneys proceed as they face a backlog of cases made worse by the covid-19 pandemic, said Pete Skandalakis, a former Republican district attorney and head of the Prosecuting Attorneys’ Council of Georgia.

"We are stretched beyond our resources at this point," he said. "We’re not even trying to keep up — we’re trying not to sink."