Courts

Virginia Has A Bittersweet Failsafe If Roe Is Overturned

Can we have a week without a reminder that we are living through a pivotal moment in our country's history?

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Alito Leaked Report Indicates Supreme Court Set To Overturn Roe v. Wade

(Photo by Alex Wong/Getty Images)


Steve Descano, a Virginian prosecutor, is doing his part to make sure that people aren’t being forced to give birth, the law be damned.

Almost two and a half years ago, I took my oath of office as prosecutor, and swore to protect my community from those who broke the law. The real threat, I now realize, may stem from those who write the law…So when the court’s draft decision overturning Roe v. Wade was leaked earlier this month, I committed to never prosecute a woman for making her own health care decisions. That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion, or for being suspected of inducing one.

This is a powerful promise to use discretion. Descano goes on to give the common sense, real world consequences of a world without Roe — a woman in tears being questioned by officers not long after being told that she miscarried, search warrants to see if messages were sent to an ex or a Tinder hookup, etc.  It is also a continuation of the terrifying chapter that is America’s use of shadow checks and balances.  There is no denying that prosecutorial discretion is a feature and not an accident of our legal system, but heavy reliance on it — much like heavily relying on jury nullification, suggests that something is rotten in The Land of The Free. Reading this carried echos of I Am Part Of The Resistance Against The War On Uteri, and while that is preferable to no fight at all, there is something deeply unsettling about an entire class of people being potentially subject to homicide charges depending on the whims of an individual prosecutor. Things might be okay for now, but prosecutors only serve four-year terms and homicide charges don’t really have a statute of limitations.

In the meanwhile, let’s hope that other prosecutors follow Descano’s lead across the nation. It might be all we have with this court.

My Governor Can Pass Bad Abortion Laws. But I Won’t Enforce Them. [NYT]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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