Travis DA will not prosecute abortion crimes, testing limits of local discretion, state power
Travis County District Attorney José Garza on Monday denounced the U.S. Supreme Court's move to overturn the Roe v. Wade decision and reiterated his promise that his office will not prosecute people under the Texas law that will make it illegal to perform abortions.
The latest opposition to the ruling by an Austin public official comes days after City Council members pledged to vote on a resolution that calls on Austin police to make abortion investigations their lowest-priority cases.
"Here in Travis County, we will not force women into the shadows, especially when they need life-saving medical care," Garza told reporters outside his office. "Here in Travis County, we will not criminalize personal health care decisions. If you need medical assistance, I implore you to seek it."
Garza is one of several district attorneys across Texas to make the same promise, including John Creuzot in Dallas, Joe Gonzales in Bexar County, Brian Middleton in Fort Bend County and Mark Gonzalez in Nueces County.
However, legal experts said moves at the local level aren't likely to give clinics enough reassurance to reopen their doors and begin performing abortions again. Officials at the state level could still enforce civil penalties against abortion providers and revoke licenses.
MORE: Austin City Council weighs plan to push back against potential Texas abortion ban
Major clinics in Texas, such as Planned Parenthood and Whole Women's Health, ceased abortion services Friday, when the Supreme Court issued its decision that ended constitutional protections for abortion.
"A prosecutor's job is to protect public safety," Garza said. "To enforce this law will not only fail to promote or protect public safety, but will also lead to more harm."
In Texas, a so-called trigger law is set to go into effect 30 days after a judgment is issued — which will not come for a couple of weeks — making it a felony to perform an abortion. However, state Attorney General Ken Paxton said some prosecutors may choose to immediately pursue criminal prosecutions based on Texas laws that predate Roe v. Wade.
Reached by phone Monday, Williamson County DA Shawn Dick said his office will do "what we've always done: review a case on its merits based on the facts." Harris County DA Kim Ogg gave a similar answer Friday.
"Our job is to enforce the laws, and we do that on a case-by-case decision," Dick said.
Hays County DA Wes Mau did not return a call Monday seeking his office's position.
The Austin City Council will convene the week of July 18 for a special called meeting to consider a resolution that would encourage the Austin Police Department to make abortion-related investigations its lowest priority. The proposed resolution would also discourage police from cooperating with outside agencies in any abortion investigations.
The nonbinding initiative is a recommendation and not a directive, as the council cannot dictate policy to the Police Department.
More: Abortion rights protesters swarmed Austin streets as anti-abortion activists celebrated
The policy might trigger a response from Republican state leaders, who have previously sought to quash some of the city's more liberal policies.
In 2017, when Travis County Sheriff Sally Hernandez tried to limit cooperation between deputies and federal immigration agents, the policy prompted Gov. Greg Abbott to strip $1.5 million in state grants from the county. State lawmakers later passed legislation banning so-called sanctuary cities and required Texas sheriffs to fully comply with ICE or risk civil penalties and criminal charges.
Garza said he would not be surprised if state leaders try to intervene when it comes to abortion policies in his jurisdiction.
However, Garza stressed that "the Texas Constitution and the Texas Supreme Court have been quite clear that the only office with authority to prosecute crimes in a local community is the office of the locally elected district attorney."
Elizabeth Sepper, a University of Texas law professor who has written about reproductive issues, said prosecutors do have discretion about which cases to pursue.
"Prosecutors have tons of discretion because there are limited resources and any number of potential crimes — regulatory or otherwise," she said. "Think of marijuana or minor drug charges. Lots of prosecutors have determined not to spend resources on those kind of charges."
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John Seago, legislative director for the anti-abortion organization Texas Right to Life, has said state lawmakers should pursue changes that would tighten criminal enforcement and make it harder for local prosecutors to avoid bringing charges. That could include authorizing the Texas attorney general's office to prosecute a physician if a local district attorney declines to bring charges, or allowing a neighboring prosecutor to step in.
Other members of Garza's staff on Monday also denounced the Supreme Court's decision. Neva Fernandez, director of the victim services unit, said that the Texas law criminalizing abortion — which makes no exception for rape or incest — will have "dire consequences" for people across the state, including children.
"This legislation strips survivors of sexual violence of the control they might reclaim over their bodies," Fernandez said. "Make no mistake: This office has absolutely seen crime victims as young as 10 years old impregnated by a rapist."
This article originally appeared on Austin American-Statesman: Travis County DA Jose Garza says he will not prosecute abortion crimes
