Abortion may soon be a crime in Missouri, but prosecutions aren’t anticipated in Kansas City.
Jackson County Prosecutor Jean Peters Baker has all but guaranteed her office won’t bring abortion-related charges, saying she will use her prosecutorial discretion “to limit the erosion of reproductive rights.”
All abortions, except those required because of a medical emergency, will become illegal in Missouri under a 2019 state law that goes into effect if Roe v. Wade is overturned. A leaked draft majority opinion from the United States Supreme Court indicates the justices are poised to strike down the landmark 1973 decision that guaranteed the right to an abortion nationwide.
The looming statewide abortion ban means prosecutors across Missouri may soon confront difficult decisions about whether to enforce the law, or how. Peters Baker, a former chair of the Missouri Democratic Party, appears to have staked out the most aggressive public stance since the release of the draft opinion, making clear she opposes the criminalization of abortion.
Prosecutors, who are elected in Missouri, enjoy sweeping power over whether to charge crimes or not. In very few instances, if any, are they required to bring cases. Decisions not to charge generally can’t be reviewed by courts.
This wide discretion means Missouri’s ban may end up toothless in parts of the state, depending on the willingness of local prosecutors to pursue violations.
Peters Baker, whose term runs through 2024, co-chairs the Addressing Disparities to Reproductive Health Advisory Committee of the Association of Prosecuting Attorneys. The committee released a statement on May 5, four days after the draft became public, calling the threat of criminal sanctions for reproductive health care “an injustice.”
“Healthcare, including abortion, and its attendant decision-making processes are private medical matters. Law enforcement, including prosecutors, should not be thrust into this realm,” the statement says.
“Laws that criminalize healthcare do not protect the public, but instead cost lives. Such laws impede safe medical care and prevent individuals from seeking healthcare services for fear of prosecution, alienating communities, thereby causing dangerous outcomes.”
Forcing prosecutors to wade into public health erodes the integrity of the profession, the statement warns, and destroys the trust of communities, compromising public safety. The prosecutors’ responsibilities to their communities, the statement says, is “paramount.”
Peters Baker’s spokesperson Michael Mansur declined an interview request. “For now, Jean’s statement is her comment on this,” he said.
Prosecutors have wide discretion
Whether other Missouri prosecutors will follow Peters Baker is unclear. St. Louis County Prosecuting Attorney Wesley Bell, St. Louis Circuit Attorney Kim Gardner, Boone County Prosecuting Attorney Daniel Knight and Greene County Prosecuting Attorney Dan Patterson didn’t answer questions about their approach.
Also unclear is how often prosecutors will be faced with potential violations of the law – and what exactly constitutes a violation.
Under Missouri’s abortion ban, knowingly performing or inducing an abortion is a Class B felony, which comes with a prison sentence of five to 15 years. The law says women who undergo an abortion can’t be prosecuted. The ban includes an exception for medical emergencies, but not rape or incest.
Missouri has only one abortion clinic, in St. Louis, which would almost certainly stop performing abortions if the ban goes into effect. But pregnancies can also be terminated through medication.
Doctors who prescribe the drugs would presumably be in violation of the ban, but what about a courier who delivers them? Or a friend or family member who gives the drugs to a woman? If an abortion is performed because of a medical emergency, can doctors expect to face investigations of their decisions?
Unless Missouri legislators clarify the ban, the first calls about how to apply the ban will fall to prosecutors. How they use their discretion will be key to determining its enforcement.
Miriam Krinsky, director of the national prosecutorial reform advocacy group Fair and Just Prosecution, said in an email every elected prosecutor in the country will have a choice to make after the U.S. Supreme Court strikes down Roe.
Prosecutors have “immense discretion to decide which cases should be prosecuted and an obligation to pursue only those that serve the interests of justice and promote public safety,” she said in an email.
“We know that this is going to be a time when elected prosecutors in particular will need to decide what side of history they’re going to stand on,” Krinsky said in a later interview. “They have always had well-settled discretion to decide when and how and if to bring cases into the criminal legal system.”
In addition to Missouri, 25 other states are certain or likely to ban abortions if Roe is struck down, according to the Guttmacher Institute, which tracks state-level policy.
Kansas is not currently on the institute’s list because the state Supreme Court has interpreted its constitution to protect the right to end a pregnancy, but Kansas prosecutors may eventually face the same questions confronting their Missouri colleagues.
Kansas voters will decide in August whether to repeal state constitutional protections for abortion, which would allow lawmakers to severely restrict or ban the procedure if Roe is overturned.
In October 2020, Wyandotte County District Attorney Mark Dupree, a Democrat, signed on to a letter with dozens of other prosecutors promising not prosecute women who obtain abortions or health care workers who provide them. Their commitment, the letter said, “would hold even if the protections of Roe v. Wade were to be eroded or overturned.”
Asked Tuesday whether Dupree stands by his commitment, spokesman Jonathan Carter didn’t repeat the promise – instead saying the office will evaluate decisions to prosecute on an individual basis.
“District Attorney Dupree will follow the constitutionality of Roe V. Wade, as it is the current law of the land,” Carter said in a statement. “If the Supreme Court of the United States officially overturns Roe V. Wade, this office will look at instances of abortion on a case-by-case basis.”
Anti-abortion backlash possible
As prosecutors weigh how to approach a post-Roe landscape, any path that deemphasizes abortion prosecutions or rules them out entirely is certain to produce blowback from anti-abortion activists and legislators.
State Rep. Mary Elizabeth Coleman, one of the Missouri House’s most vocal abortion opponents, said Missouri has a problem with “liberal prosecutors” refusing to enforce state law.
Coleman, a Republican from the St. Louis suburbs, pointed to Gardner as an example. Republicans for years have sought to cast the St. Louis circuit attorney as soft on crime.
She said she was “a little surprised” by Peters Baker’s comment.
“I think Jean Peters Baker has typically cared about her reputation a little bit more than to make a statement that she wouldn’t follow the law,” she said.
In the past, Republican Gov. Mike Parson and some GOP legislators have pushed to allow the state attorney general to intervene in murder cases in St. Louis as part of an effort to rebuke Gardner. Anti-abortion legislators could offer a similar proposal on abortion, though Missouri law appears to already allow the attorney general at least some authority to step in to prosecute abortion crimes. Coleman said in general she supports allowing the governor or attorney general to step in if local prosecutors aren’t enforcing state law.
A spokesman for Missouri Attorney General Eric Schmitt, a Republican and candidate for U.S. Senate, didn’t comment by deadline.
Carissa Byrne Hessick, a law professor at the University of North Carolina and director of its Prosecutors and Politics Project, said there’s a long history of prosecutors not enforcing certain laws.
Prosecutors make numerous decisions all the time about what crimes they’ll pursue, Hessick said, from making judgments about how to best use the time and resources available to them to choosing to emphasize certain crimes over others.
But conversations about the choices of prosecutors tend to take place when a specific issue, such as abortion, captures the public’s attention.
“There’s a pretty long tradition of prosecutors not enforcing all of the laws,” Hessick said. “And it’s something voters should probably know about and they should ask about, especially since we elect our prosecutors.”
The Star’s Kacen Bayless contributed reporting