Immediately after the Supreme Court's Dobbs decision eliminating constitutional protections for the right to abortion, states with socially conservative leanings began restricting access to the procedure. Just as quickly, dissenting local officials announced they wouldn't enforce restrictions. Anybody paying attention could have predicted the battles and noted that the sides flipped from their stances in earlier conflicts. But in the mix of this partisan combat is a hint that, while letting localities opt out of restrictive laws from further up the political food chain hands nobody the victories they want, it could make it easier for the people of a deeply divided country to live in peace.
"As elected prosecutors, when we stand in court, we have the privilege and obligation to represent 'the people,'" reads a letter organized by Fair and Just Prosecution, an organization promoting ideologically progressive approaches to criminal justice, and signed by dozens of prosecutors. "All members of our communities are our clients – they elected us to represent them and we are bound to fight for them as we carry out our obligation to pursue justice. Our legislatures may decide to criminalize personal healthcare decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people. Criminalizing and prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that."
Some signees come from states like California and New York where they're unlikely to be put to the test. But among them are district attorneys in Texas, which even before Dobbs privatized anti-abortion efforts, Missouri, which rushed to implement a restrictive law, and Alabama, where anti-abortion laws on the books are presumably back in effect. Independently, New Orleans Parish Sheriff Susan Hutson said she would not jail anybody who violated Louisiana's abortion laws. The New Orleans City Council voted to deny the use of city funds for anti-abortion enforcement.
As you might guess, opponents of abortion aren't thrilled.
"Some of the same Soros-funded prosecutors accused of going easy on criminals are now refusing to enforce the state abortion laws taking effect after the fall of Roe v. Wade," hyperventilated a report in The Washington Times.
Texas legislators might let prosecutors target alleged lawbreakers outside their own counties.
"I expect the urban county DAs to resist it. And that's why we need to come up with alternative remedies," commented State Rep. Briscoe Cain, a Republican for whom abortion is the defining issue.
But we've been here before, with the sides taking mirror-image positions. In 2020, when mostly Democratic state officials imposed lockdowns, curfews, and mask mandates, I pointed out that "[c]ounty sheriffs in California, New York, North Dakota, Oregon and elsewhere say they'll have nothing to do with enforcement efforts and spar with governors who resent such independence."
The refuseniks at that time were mostly conservative-leaning, as are the local officials across the country who have declared their jurisdictions "Second Amendment sanctuaries." They refuse to use local resources to enforce restrictive state and federal gun laws.
"This draws a line in the sand. It doesn't mince words. And I hope it sends a message to what can be described as the authoritarian control freaks," Lake County, Florida, Commissioner Josh Blake (R) said in 2019 when the county became a sanctuary for self-defense rights.
Those words could have been uttered by proponents of the Sanctuary City movement, which preceded and inspired Second Amendment sanctuaries, but focuses on denying cooperation with federal immigration laws. In 2018, the mayor of Oakland, California demonstrated her sentiments by issuing a public warning of a forthcoming four-day Immigration and Customs Enforcement (ICE) sweep.
"A federal immigration official says about 800 people living illegally in Northern California avoided being arrested because Oakland Mayor Libby Schaaf warned that immigration raids were upcoming," CBS reported at the time.
Schaaf is a Democrat, like most of the opponents of anti-abortion laws and unlike the majority of the resistance to gun restrictions and pandemic lockdowns, so the local uprising comes full circle. You could connect them all with Norman Vroman, the one-time Libertarian district attorney of Mendocino County, California, who had little use for government overall and refused to enforce marijuana prohibition. In fact, giving a cold shoulder to authoritarian laws that don't suit local tastes has a long history in this country, and is constitutionally protected, at least when it comes to the federal government.
"Thanks to the Tenth Amendment, the federal government cannot force states to help them enforce federal law," George Mason University's Ilya Somin wrote in 2016 with regard to immigration restrictions. "It is also limited in its ability to use conditional spending grants to do so."
Selective enforcement is iffier when it comes to state laws, but as a practical matter local police and prosecutors have enormous discretion when it comes to prioritizing the use of their resources and the choice of cases to pursue. That doesn't nullify laws passed at the state level, but with most law enforcement at the local level, it can kneecap enforcement and protect scofflaws.
"These more recent conflicts represent more than 'uncooperative federalism,'" wrote Richard Schragger of the University of Virginia School of Law, who didn't like the implications, about Second Amendment Sanctuaries in 2020. "What has emerged instead is something that could be called 'punitive federalism'—a regime in which the periphery disagrees with or attempts to work around the center and the center seeks to punish those who do so, not just rein them in."
The prevalence of "punitive federalism" on so many issues demonstrates that top-down authoritarianism imposed against local opposition guarantees defiance. Officials pushing abortion bans can emulate their predecessors on marijuana, immigration, guns, and lockdowns by playing a losing game of "whack-a-mole" with dissenters, or they can endorse the localism that returned abortion to the states to begin with. After all, the respect for local preferences that gave us a federal Constitution and the Tenth Amendment also motivates the signers of the Fair and Just Prosecution letter. Embracing that history could defuse tensions at a time when people are, too often, at one another's throats.
Of course, the most local jurisdiction of all is the individual. Perhaps, as we relearn the virtues of local decision-making, we'll also reacquire a taste for individualism. Then, we can limit government to those few (if any) decisions necessary to its functions while leaving people to make the majority of choices for themselves. In the meantime, letting jurisdictions opt out of locally unpopular prohibitions and restrictions is an important step towards a little more social peace.
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