It is understood that district attorneys in Mississippi have some discretion about which cases they prosecute.
If the evidence is weak, for example, it is a waste of the court’s time and resources to pursue a conviction that the prosecution is unlikely to secure.
It is another matter, however, for a prosecutor to decide, based on personal beliefs or political considerations, that a law won't be prosecuted at all against anyone who breaks it. In such a scenario, the prosecutor is no longer operating as a member of the judicial branch but the legislative, in effect deciding what’s legal and what’s not.
That is precisely the line that two Mississippi prosecutors have crossed when they joined 90 district attorneys and attorneys general from around the country in pledging that they would not prosecute those who seek, provide or help someone obtain an abortion.
The two district attorneys -- Jody Owens in Hinds County and Shameca Collins in Southwest Mississippi -- might not agree with the recent U.S. Supreme Court decision that removed the constitutional protection for abortion. They might not like the Mississippi law, now in effect as a result of that court decision, that outlaws abortion except in cases of rape or when the mother’s life is in danger.
But whether prosecutors like a law should be irrelevant. The job they signed up for is to enforce all the laws of the state, not just those with which they agree.
The law in question is not some archaic vestige that Mississippi never got around to cleaning up. It was enacted 15 years ago, precisely conditioned on taking effect only if Roe v. Wade, the 1973 law that legalized abortion on demand, was overturned.
It also is a red herring, at least in Mississippi, to suggest the law would result in women being prosecuted who obtain an abortion. The law is clear that only providers of illegal abortions are guilty of a crime.
For prosecutors to blanketly refuse to enforce a law sets a terrible precedent. If they can ignore a law that forbids abortion, what other laws might they decide to ignore? Such pick-and-choose prosecutors create not just the impression but the reality that enforcement of the law is arbitrary in Mississippi. Its application depends on where you live. Their attitude is a step toward anarchy.
If these prosecutors believe abortion should be left solely to the pregnant woman’s discretion, then they should lobby lawmakers to rescind the 2007 law. Until that happens, they have taken an oath to prosecute without favor what’s on the books.
If they aren’t willing to live up to that oath, they should get off the public payroll and do something else with their law degree.
