The Next Anti-Choice Strategy?
Widening the attorney general's authority to prosecute
Just when you thought the Legislature was on hiatus from its attacks on abortion, they prove it's never too early to start conjuring up new ways to wage war. In what could be a preview of the anti-choice movement's strategy during the next legislative session, the Texas Attorney General's Office, under zealot Ken Paxton, is lobbying for concurrent enforcement authority over the state's abortion laws. That is, more power to enforce draconian anti-choice legislation.
As it stands, enforcement powers fall mostly to local district attorney's offices, but as David Hacker with the A.G.'s Office testified during a Senate State Affairs Committee hearing in February, the office hopes to gain the authority to independently enforce any and all abortion-related laws. (An example offered: The A.G. can only enforce SB 8's dilation and evacuation ban with the consent of individual district attorneys or the county in which the offense occurred.) Hacker also advocated for D.A.s to contact the A.G. when they receive a complaint about a violation of an anti-choice law and update them at every point in the process; if they choose to drop the complaint, the A.G. could then go after it themselves. But in effect, the expansion of power could create a sort of turf war between local D.A.s and the state's top attorney.
The ostensible reason behind the widened jurisdiction is to prevent "safe havens" where laws are not being enforced, said Hacker, who compared the theoretical lawlessness to so-called sanctuary cities that protect immigrants. "Because it's a politically charged issue, not every D.A. is going to want to enforce the pro-life laws of this state," he said, alluding to those in Democratic or left-leaning counties. While the A.G.'s Office sought to drum up drama by accusing "certain counties" of abortion law noncompliance, they failed to actually offer county names. However, court documents obtained by the Chronicle show the A.G.'s Office is referring to D.A.s in Travis, Harris, Bexar, El Paso, and Hidalgo counties. The Attorney General's Office also pointed to assisting allegedly overburdened and under-resourced D.A.s in these cases as another reason for expanding powers.
However, that help isn't sorely needed, at least for Travis County. "The adequacy of resources to enforce the law is not an issue for this office," emailed D.A. Margaret Moore. "When the resources of the Attorney General are needed, local prosecutors can receive and have received A.G. assistance. It is up to the local prosecutor to work with the A.G. on a specific case. For instance, Assistant A.G.s are currently sworn in as Special Assistant D.A.s in my office to join in prosecuting a human trafficking case. I don't see anything wrong with that model."
Paxton's effort to tread on local control spells hypocrisy for conservative Republicans, a fact noted – and then dismissed – by Sen. Charles Schwertner, R-Georgetown: "I would normally be hesitant to expand the A.G.'s power and trump local D.A.s, but in this case, we can't allow someone to stand in the way of protecting innocent little babies."
With no real evidence that widening A.G. powers is actually necessary, it's clear state lawmakers, even in the interim, are looking to create a solution for a problem that doesn't exist, as they often do when it comes to abortion laws. As Blake Rocap of NARAL Pro-Choice Texas noted, state officials are taking a page out of the national strategy to eradicate abortion. Indeed, Americans United for Life, a national anti-choice model legislation mill whose footprint can be found in a slew of Texas laws, promotes granting A.G.s more power over abortion laws in its 2018 policy guide.
While most senators fawned over the idea, caution toward the strategy came from an unlikely source: Kyleen Wright, longtime anti-choice activist with Texans for Life Coalition, told senators that handing increased authority to the A.G. could backfire, reminding them of the Democratic attorney general who went after an anti-abortion crisis pregnancy center in 1995. Ten years from now, they could see an A.G. who's unsympathetic to their right-wing cause. "We need just and fair application of the rules regardless of the A.G.'s politics," she said. "So be careful when crafting such legislation."