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Can District Attorneys choose not to prosecute abortion cases? Expert weighs in

“District attorneys in Louisiana have unbridled discretion to decide what sorts of cases to prosecute and which sorts of offenses to let go unprosecuted."

NEW ORLEANS — Loyola Law School professor Dane Ciolino has been teaching his students about Roe v. Wade for many years.

In one exercise, he shows how the Constitution could easily be interpreted in polar opposite ways on the issue of abortion, primarily because it is never explicitly addressed in the document.

“The great public misunderstanding about this opinion, and Roe versus Wade before it, is that these justices aren't expressing any opinion about the rightness or wrongness or the morality of abortion,” Ciolino said. “The only issue they're deciding is who decides.”

Ciolino said lawmakers, and ultimately voters, will now be left determine the issue on a state-by-state basis.

“Effective just after nine o'clock central time this morning Louisiana has one of the most restrictive abortion laws in the country,” he said “And if people don't like that, they have to resort to the democratic process.”

Ciolino anticipates that voters will have a lot to say.

“Now the pressure is on legislators,” he said. “And voters will put the pressure on them, whatever views those voters have.is going to matter and they'll state their opinions on abortion at the ballot box.”

Attention could also shift to local district attorneys, Ciolino said. That's because the teeth in Louisiana's almost complete abortion ban is in criminalization of doctors who perform the procedure, making it punishable by up to 10 years in prison.

“District attorneys in Louisiana have unbridled discretion to decide what sorts of cases to prosecute and which sorts of offenses to let go unprosecuted,” Ciolino said. “If a local DA were to say 'I'm not going to prosecute abortion in my district,' there's nothing anybody could do about that. Now, there's an element of lawlessness to it, with a DA essentially saying I understand what the law is, enacted by the Legislature and signed by the governor, but the law doesn't matter to me.”

New Orleans District Attorney Jason Williams affirmed Ciolino’s position with a statement Friday afternoon indicating that his office has no interest in prosecuting abortion doctors.

“The U.S. Supreme Court’s decision to overturn Roe v, Wade demonstrates complete disregard for the long-established constitutional tenets of our democracy, and is a cruel and irresponsible stripping of a woman’s agency,” Williams stated. “It is disappointing, but unsurprising that many of our leaders are focused not on trying to lift our existing children out of the poverty and trauma that are the root causes of crime, but on creating more desperate situations for women and families.”

Williams said his office has much higher priorities to deal with.

“The Orleans Parish District Attorney's Office is focused on pursuing accountability and justice for the most serious crimes committed in our community – the ones that keep mothers, fathers, and families up at night – like murders, shootings, rapes, armed robberies, and carjackings. It would not be wise or prudent to shift our priority from tackling senseless violence happening in our city to investigating the choices women make with regard to their own bodies. The Supreme Court's decision to overturn Roe does not change that.”

Louisiana Attorney General Jeff Landry, who is staunchly anti-abortion, applauded Friday’s Supreme Court ruling, but Ciolino said state law strictly limits the influence that the AG’s office has over local prosecutorial decisions.

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