While Americans today are often starkly divided, they appear oddly unified in their general skepticism of American legal institutions. What was once countercultural is mainstream, as anti-establishment sentiment against “the system,” once reserved for hippies, is the common rallying cry of protesters and political leaders alike.
Enter Milan Markovic’s article, Charging Abortion, which makes a simple, unpopular, and therefore courageous point: maybe parts of the system can (and do) work. More specifically, this article makes the case that prosecutorial ethics can work to provide a thoughtful rubric to exercise principled discretion in difficult situations. Taking up the hot button issue of abortion (now in a post-Dobbs world,) Markovic tries to puzzle through a fundamental question: how should prosecutors opposed to criminalizing abortion individually do their jobs in anti-abortion states?
Some have argued that prosecutors should engage in “prosecutorial nullification” of anti-abortion criminal statutes, disregarding laws as passed because of personal opposition.1 To do so would violate existing standards and rules of ethics that apply to prosecutors—something Markovic is unwilling to set aside (p. 8). He is deeply skeptical of expanding prosecutorial roles, discarding professional norms, and having prosecutors substantively evaluate and correct errors in the democratic process. Whether a prosecutor thinks a law in the abstract is correct or not, Markovic is steadfast in recognizing fidelity to a prosecutor’s obligation to enforce it. The wrinkle in all of this is the publicly elected prosecutor. What if someone is elected in a locality opposed to criminalizing abortion but is in a state where abortion is illegal, and they ran on a platform of non-enforcement? Then, for democratic accountability, wouldn’t the prosecutor have to nullify on behalf of the public that elected the prosecutor? Here again Markovic would likely assert that a prosecutor never had the option to run on a nullification platform, because to be a prosecutor is to follow the law. The same way an attorney can’t get hired by a client by promising to falsify evidence or lie to the court, a prosecutor cannot, based on political opposition, refuse to enforce law. That’s not the mechanism our society provides to the public to amend law. Prosecutors, like all lawyers, can only offer services within the bounds of professional conduct.
Starting from this premise (whether one agrees with it or not), the article charts a practical path forward for prosecutors who can’t (or won’t) walk away from their longstanding general obligation to enforce law regardless of their own personal views. There are a host of reasons why a prosecutor might not feel comfortable, willing, or able to engage in categorical non-enforcement based on their personal, political, or institutional beliefs. Some prosecutors will reject prosecutorial nullification because of their ideological commitments to the rule of law. Others will adhere to concepts of role-differentiation that distinguish the lawyer as a person from the lawyer as an advocate. Prosecutors may fear losing their jobs for personal or professional reasons. Personally, they stand to lose their livelihood and reputational interest. Professionally, they may harbor deep concern over the impact of their departure on the system itself. If prosecutors skeptical of criminalizing abortion are fired or quit, their abdication of these roles in our system of governance is likely to be filled with individuals with more extremist enforcement views. Thus, the personally gratifying, morally clean choice of prosecutorial nullification may be in tension with the grimy and uncomfortable day-to-day reality of minimizing harms one case at a time.
Markovic’s article presents a meaningful rubric for rule-following prosecutors in a post-Dobbs age. His solution encourages prosecutors to rigorously focus on the typical features of prosecutorial discretion: when charging, think about the resources available, the evidentiary strength of the potential cases, the factual nuance between one case and the next—all with an eye towards the public good. A good prosecutor, this article argues, is always making individual charging decisions in the context of resources and what makes the most sense in ensuring the broadest benefit to society. Markovic argues that if one applies these metrics fully, prosecuting abortion should happen rarely and in only cases where it aligns with a host of complementary interests. Situating the discussion of abortion prosecution in this way, embraces longstanding values imbedded in prosecutors’ unique professional role as a lawyer for the people rather than any one person. Doing so places prosecutorial choices not to charge criminal anti-abortion laws on more solid footing. Prosecutors have always exercised wide latitude over charging decisions and routinely weigh the benefits of prosecution versus costs. Markovic argues that these factors are what can work in favor of non-enforcement, even categorical non-enforcement.
The article is particularly engaging when it moves from the theoretical to the more concrete, digging into some of the history of criminalizing abortion and cases in the abortion space that illuminate the legal context of criminal abortion. While one might have read a fair amount about abortion and constitutional law, Markovic connects how the criminal law surrounding abortion is intimately intertwined with professional licensure and market protectionism by the medical industry. The article notes how dating back to the early 1900s, prosecuting abortion faced challenges that often led to only the most egregious cases—those involving unsafe care and coercion—being brought. The article asserts this is still where prosecutors can (and should) spend their finite resources and efforts—evaluating the strengths of the state’s case one fact pattern at a time.
Building on this historical discussion, Markovic spends the balance of the article outlining how criminal abortion cases are not the best use of prosecutorial resources. Since the ability to bring an abortion case is testimony driven and involves reluctant witnesses, evidence is scant and difficult to confirm. Such cases will typically require significant resource investments to investigate and prosecute since they will be highly scrutinized on appeal (not only for the subject matter but the newness of the law in this area). Markovic also interrogates how these cases have unclear extraterritorial dimensions involving crossing state lines and conflicts of law issues, which can render them even more vulnerable on appeal. All in all, this article drives home the point that, for prosecutors, criminal abortion cases just aren’t the best use of limited resources. The law is unclear, the evidence is a mess, figuring out and getting the right parties into court is hard, and there is an increased likelihood of reversal on appeal. No matter what you believe about criminalizing abortion, Markovic argues that charging abortion is rarely the best option.
On the one hand, some will condemn this article for refusing a categorial zero-enforcement stance against state laws outlawing abortion. Others will slam this article for road mapping how to take the bite out of criminal anti-abortion laws. I like it precisely because it is something so many arguments and articles are not these days: pragmatic, nuanced, and with a slight tinge of optimism.
