Anti-Life Prosecutors in Texas Threaten to Ignore Pro-Life Laws

Ordinarily, legislatures create the law, executives enforce the law, and courts determine the validity of the law. Separating the duties of government into discrete branches ensures unchecked power concentrates in no single individual or group. This notion of governance is enshrined into our founding documents and manifested in our society’s very function. 

However, four Texas district attorneys, along with the recently-appointed federal Secretary of Health and Human Services, have promoted another idea: prosecutors should have absolute and unfettered authority in our government, at least regarding the enforcement of Pro-Life laws. 

District attorneys and attorneys general from across the country penned a letter declaring their commitment to ignoring Pro-Life laws, even in a post- Roe vs. Wade world. Joining the letter are the following Texas district attorneys: John Creuzot of Dallas County, Joe Gonzales of Bexar County, Mark Gonzalez of Nueces County, and Brian Middleton of Fort Bend County. While their commitment to upholding the law is distinctly lousy, the arguments they peddle to excuse themselves are even worse. Let’s examine each in turn.

First, the attorneys assert that they are unwilling “to criminalize these personal healthcare decisions – as well as actions by healthcare professionals.” Here, they assume abortion is a type of health care. However, health care heals, while abortion kills. Health care enables flourishing, but abortion impedes flourishing. The attorneys claim they do not want to criminalize health care decisions, but they would not—because abortion is not health care. 

Second, the attorneys claim their goal is to uphold the Constitution. Even setting aside that the word abortion is neither mentioned in the U.S. Constitution nor envisioned by the Constitution’s drafters, the attorneys’ claim is misleading. The Supreme Court of the United States interprets (rightly or wrongly) the meaning and contours of the U.S. Constitution. Presumably, the attorneys agree with Roe. But if the Supreme Court reverses Roe, then elective abortion would no longer find protection under the Constitution. Therefore, there would be no conflict between upholding the Constitution and prosecuting abortionists—unless, of course, these attorneys fancy themselves the ultimate arbiters of the Constitution’s meaning. Who needs a Supreme Court, anyway?

Third, the attorneys appeal to an obligation to seek and pursue justice as prosecutors. Justice, however, is a philosophical concept. Many people promote competing conceptions of justice. In our pluralistic society, we reconcile these competing conceptions of justice through elected bodies who negotiate, debate, and represent the perspectives of the public. What the attorneys actually want to do is undermine justice as defined by the legislatures. Just imagine their outrage if a fellow district attorney refused to prosecute Pro-Life citizens who commit crimes against abortionists or abortion clinics. The attorneys are wrongly presuming their philosophy affords them legislative authority. 

Finally, the attorneys fear they may exhaust limited resources by prosecuting abortionists. Maybe this fear is legitimate. Prosecutors often seek plea bargains because they can’t afford to go to trial on every case. However, making a blanket determination that they would not prosecute for certain crimes because of limited resources is nothing more than a justification to ignore a law with which they disagree. That is not prosecutorial discretion but the abdication of duty.

Conspicuous among the signatories is Xavier Becerra, the current Secretary of the Health and Human Services (he signed the letter while still Attorney General of California). Throughout his confirmation hearings, he insisted that he would cease his attacks on Pro-Lifers and adhere to the law. Based on this letter and his previous actions as California’s Attorney General, we know that was a lie. What Becerra, the four district attorneys from Texas, and others across the country seek to do is only uphold the Constitution when convenient to their values, brazenly ignore the law when the law does not conform with those values, and leave preborn children and their mothers vulnerable to the abortion industry.

If nothing else, the letter teaches us that Pro-Life laws need some mechanism of civil enforcement. Empowering private citizens to sue abortionists who violate Pro-Life laws ensures Texas is not reliant on pro-abortion district attorneys to do, or refuse to do, their job. This is precisely what the Pro-Life priorities for the 87th Legislature assure. The Preborn NonDiscrimination Act (SB 1173 and HB 3218) and the Texas Abolition Strategy (SB 1647 and HB 3760) equip the pregnant mother and her family to sue an abortionist who violates the law. The Texas Heartbeat Act (SB 8 and HB 1515) equips any Texan with the power to sue an abortionist who violates the law. All of these bills would be enforceable irrespective of the beliefs of John Creuzot, Joe Gonzales, Mark Gonzalez, and Brian Middleton. Where these district attorneys fail to uphold their responsibilities, Pro-Life Texans will.



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