Two Hampton Roads prosecutors preemptively pledge not to file charges over abortion if Virginia law changes

In anticipation of a wave of new restrictions on abortion following the Supreme Court’s ruling last week to overturn Roe v. Wade, a group of progressive prosecutors from across the country, including two in Hampton Roads, announced they will not prosecute anyone who seeks or provides abortions that would have been legal under Roe.

Commonwealth’s attorneys Ramin Fatehi, of Norfolk, and Stephanie Morales, of Portsmouth, signed a pledge promising not to “use our offices’ resources to criminalize reproductive health decisions.”

The 89 elected prosecutors who signed the pledge hail from 28 states — including nine from Virginia — and represent jurisdictions totaling 87 million people, according to a news release from Fair and Just Prosecution, the left-leaning organization that circulated the pledge.

Abortion remains legal in Virginia. But Republican lawmakers have signaled their intent to pursue legislation that would restrict the practice. Gov. Glenn Youngkin hailed the Roe ruling as a victory and outlined a plan to “protect the life of unborn children,” which he said will include a ban on abortions after 15 weeks of pregnancy. Youngkin wants the new legislation ready to be introduced in January.

In an interview this week, Fatehi condemned the Dobbs v. Jackson ruling as one that will go down in history like Plessy v. Ferguson, which established the “separate but equal” standard for segregation, and Korematsu v. United States, which allowed for the creation of Japanese internment camps.

“This is a political decision, not a judicial decision,” Fatehi said.

If the state’s laws were to change, Fatehi said he vowed not to pursue charges against women who have abortions or providers, because it will put lives at risk.

“Prosecuting those cases is directly contrary to my responsibility to keep people here in Norfolk safe and alive and I simply will not — I won’t allow the Republicans’ extremist agenda to put blood on my hands,” he said. “I will not aid and abet their endangering of people who are pregnant and who seek to end their pregnancies.”

He added that while he respects the “absolute right” of people to practice their religion and to believe that abortion is wrong under any circumstances, “those views do not give them the right to force other people to undergo a life-changing event.”

“That’s not the free exercise of religion, that the interference in the individual rights of another person,” he said.

Morales said she was “horrified” by the ruling, even though she knew it was coming.

“As a woman, a mother of daughters and as a prosecutor, I have seen, both firsthand and through my work, how important it is for a woman to make decisions for her own body,” Morales said in an email. “My job as Commonwealth’s Attorney is to keep our community safe, and that means never interfering with a women’s relationship with her doctor.”

Commonwealth’s attorneys have the discretion to choose which cases they prosecute, legal experts said, but that doesn’t mean there aren’t consequences to those choices.

“A problem can arise if the prosecutor simply declines to prosecute because the prosecutor does not like the law, even though prosecutions based on the law would be easy and would not violate any principles of justice,” said Henry Chambers Jr., a professor of law at the University of Richmond. “If the public has a problem with how the prosecutor uses such discretion, the public can remove such prosecutors at the next election.”

Fatehi expects there to be attempts to appoint a special prosecutor to handle cases in his jurisdiction, or attempts to remove him through petition.

“My portfolio is to do the right thing. I swore an oath to keep the citizens of Norfolk safe, keep people alive and do justice, and if the enemies of justice come for me, then so be it.” Fatehi said. “I’ve still done the right thing, and that’s all that matters.”

State Sen. Steve Newman, R-Forest, who Youngkin has tapped, along with Sen. Siobhan Dunnavant, R-Henrico, to help draft new abortion legislation, said in response to the pledge that “the law of Virginia is not optional.”

“A very few Commonwealth’s Attorneys have consistently been more interested in politics rather than the law. They mistakenly believe they can pick and choose what laws they prosecute in their communities,” Newman said in an email. “Interestingly enough, it’s those communities where we are seeing the most dramatic spikes in crime. I am certain the few prosecutors who do not keep their oath will have no impact on our legislation in any way.”

Recent attempts to pass abortion legislation — an end to public funding of abortion, a repeal of the 2020 ultrasound and waiting period laws, and an attempt to ban abortions after 20 weeks — failed in the 2022 General Assembly. The makeup of the legislature won’t change before Youngkin’s January deadline. Democrats control the state Senate, while Republicans control the House.

Newman said in an email that lawmakers’ preliminary discussions about abortion legislation for the 2023 General Assembly would not seek to penalize individual mothers seeking abortions. Instead, the penalties would be directed at the people performing abortions outside of the new parameters.

“With regard to penalties, the individual mother has never been penalized in Virginia for violating current abortion laws, to my knowledge, and that would continue,” Newman said.