The Role(s) of the State Attorney General in a Post-Dobbs Landscape

Rally for Reproductive Rights Chicago Illinois 5-23-19.

This is the fifth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs. You can find additional resources, news, and information about the State Attorney General Project here.

State Attorneys General have, for better or worse, played a central role as the law of reproductive rights has evolved. Most recently, in Dobbs v. Jackson Women’s Health Organization, the Mississippi attorney general chose to ask the Supreme Court to overrule Roe v. Wade, only after the Court had already granted certiorari on the narrower question of whether a 15-week abortion ban was constitutional. State attorneys general lined up as amici on both sides of the case, and after the Supreme Court decided the case and overruled Roe and Planned Parenthood v. Casey, virtually every state AG issued a statement after the decision.

As the post-Dobbs landscape takes shape, state attorneys general may have new opportunities and obligations. Already, 22 AGs who filed an amicus brief opposing the Mississippi law have reaffirmed their commitment to reproductive health care, including abortion care, and some have done more. This article identifies some of the options that state AGs may have if they want to protect reproductive freedom.

Informing the Public

• Unsurprisingly, confusion has arisen over the precise legal status of abortions. In some states, confusion may arise from poorly-worded statutes or from questions about whether extremely old laws can take effect. But in many states, the law is clear. State AGs can reassure the public and abortion providers by publicizing that information. The information will inevitably vary by state. In Minnesota, for example, AG Keith Ellison posted a “know your rights” page on his website explaining that the Minnesota Constitution provides broader protections for abortion rights than under pre-Dobbs federal law. District of Columbia AG Karl Racine, on the other hand, explained the current robust protections in Washington, D.C., while noting that they could be changed.
• State AGs can educate the public about “Crisis Pregnancy Centers” (CPCs) and the services they do and do not provide. CPCs are entities that attempt to persuade people to continue their pregnancies. As a recent alert issued by California Attorney General Rob Bonta explained, “CPCs often advertise a full range of reproductive healthcare services, but they do not provide abortion or abortion referral, and usually do not provide birth control or other forms of contraceptives.” Massachusetts AG Maura Healey’s alert on CPCs pointed out that because they are not medical providers, they have no legal obligation to keep their clients’ information confidential.
• Other alerts can be directed at law enforcement officials, even if the state AG does not have formal power over them. AG Bonta has reminded sheriffs of their obligation under state law to ensure that incarcerated individuals have access to abortion care and reminded other district attorneys and police of state and federal laws surrounding access to abortion clinics. Illinois AG Kwame Raoul issued a letter to his law enforcement colleagues reminding them that abortion is legal in Illinois and that “Illinois law also does not authorize law enforcement to deny, restrict, interfere with, discriminate against, or otherwise punish an individual for obtaining an abortion.”
• State AGs can also inform the public about how to protect their personal and health-related data if they use apps for things like period tracking, as Michigan AG Dana Nessel has done.

Enforcement and Prosecutorial Discretion

• Some states have particularly strong data protection laws. AGs can remind medical app providers of their obligations to keep data private and, depending on the state, may be able to prosecute or sue such providers if they fail to do so.
• Many AGs, along with local prosecutors have “commit[ted] to exercise [their] well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.” In Arizona (and perhaps elsewhere), the AG has supervisory powers over county attorneys and so may be able to “intervene to stop local prosecutors from filing criminal charges against doctors and patients who terminate a pregnancy.”
• AGs may be able to use their regulatory and enforcement power over antitrust law to ensure that hospital systems mergers do not function to reduce the availability of abortion care.

Advice and Oversight

• As AG Nessel of Michigan explained, in some states, AGs have “unique oversight authorities when it comes to licensing and regulation.” Even where they do not have official oversight, AGs can identify areas of potential legal ambiguity and give guidance in advance. Washington state’s AG Bob Ferguson, for example, asked Washington’s licensing and regulatory agencies not to penalize medical providers who are disciplined or prosecuted for providing abortions in other states.

Litigation

• State AGs can bring or support appropriate litigation to establish state constitutional protections for reproductive rights, or they can challenge or decline to defend state laws outlawing abortion. And not all challenges will necessarily be constitutional. In Wisconsin, for example, Attorney General Joshua Kaul is arguing that the legislature repealed its 1849 anti-abortion law when it subsequently passed other abortion regulations. State AGs may need to ensure that local governments do not exceed their authority by passing anti-abortion measures.
• State AGs can protect in-state providers and others who help visitors from other states obtain abortions. For example, there will undoubtedly be litigation involving anti-abortion states’ attempts to criminalize or otherwise punish their residents who travel to other states, or who help others travel, for legal abortions, and anti-abortion states may attempt to discipline health care professionals who provide those abortions. State AGs may need to become involved in litigation over such efforts as a way to protect their own state law and sovereignty.
• And of course state AGs will be called upon to defend laws protecting abortion rights. They should also be prepared to pursue litigation against the federal government when laws and regulations impermissibly interfere with abortion. Such litigation could involve challenging a federal agency’s statutory authority, for example, or could be based on constitutional federalism principles.

Promote Legislation

• State AGs can promote federal and state legislation and constitutional amendments that protect reproductive rights, including legislation to protect individuals from having data about their internet searches, physical locations, and health apps from being tracked, disclosed, or bought and sold. They can also advocate for regulatory changes to expand access to medication abortion, as they have previously done.
• Draft, support and promote state-level legislation to protect providers and patients who provide and obtain legal abortions in the AGs’ states. Such legislation might include protecting providers from professional discipline through state licensing entities, protecting them from insurance cancellation or rate-hikes, and protecting patients and providers alike from discovery or extradition.

The new legal landscape is full of unknowns. Abortion rights are emerging as a significant issue in state attorney general races around the country, and the outcome of this year's AG elections will have a significant impact on the availability of abortion services and the development of the law. Anti-abortion activists, legislators, and other elected officials will be creative and persistent. Pro-choice AGs will have to be the same but should not act in isolation. Perhaps the most important things are to remain vigilant about anti-abortion efforts throughout the country and to build and maintain strong relationships not just with each other but also with other pro-choice officials, with academics, with providers, and with reproductive rights activists. Collaboration will be essential.

Carolyn Shapiro is a Professor of Law and Associate Dean for Academic Administration and Strategic Initiatives at Chicago-Kent College of Law. She is a former Solicitor General for the state of Illinois and a member of the ACS State Attorneys General Project’s Council of Advisors.

Reproductive Rights, Roles of State Attorneys General, State Attorneys General