Republican candidates for attorney general, meanwhile, are promising to aggressively enforce state bans and act as a check on whatever efforts President Joe Biden and a Democratic Congress might undertake to expand abortion rights.
While attorney general races tend to have lower voter turnout and spending than gubernatorial contests, especially in “off years” like 2022, the state’s chief law enforcement office has long been a springboard for ambitious politicians and an opportunity to gain national prominence. The candidates will not only decide how and whether abortion bans are enforced in the near-term if Roe is overturned, but also could be tomorrow’s crop of senators, governors and vice presidents who make the laws in a post-Roe country.
Throughout the Trump and Biden administrations, attorneys general have used immigration, voting rights and abortion to try and thwart the president’s agenda, stalling or blocking legislation and regulation at the state and federal level.
With the heightened possibility that abortion rights could, in a matter of weeks, be an issue left to the states, attorney general candidates across the country are reminding voters of the stakes.
“It’s my role to ensure the health, safety and welfare of my constituents and I’m not going to do anything to jeopardize their lives,” said Michigan Attorney General Dana Nessel, who is running for reelection in November. “The AG is an absolutely pivotal position. We are not only the one authority with the power to prosecute cases in all counties in the state, but we also have unique oversight authorities when it comes to licensing and regulation.”
Nessel, along with Democratic Gov. Gretchen Whitmer, is suing to strike down the state’s 1931 abortion ban, which would go back into effect if Roe falls, and has repeatedly gone after her opponent, Republican Matt DePerno, for promising to enforce that law that prohibits abortions even in cases of rape, incest or medical peril to the mother.
“It’s repugnant to me that we’re going back in time a century or more,” Nessel, who recently revealed she had an abortion when she was pregnant with triplets, told POLITICO. “Who the hell do these Republicans think they are to make that decision for me?”
DePerno, who was endorsed by former President Donald Trump, has pledged to enforce the state’s abortion ban with no exemptions for rape, incest or medical threat to the mother. He did not respond to additional questions from POLITICO about how he would approach the issue as attorney general.
While power of attorneys general varies widely among states, all could play a role in how dozens of often vaguely worded abortion bans are interpreted and enforced. In some states, such as Arizona, the attorney general can intervene to stop local prosecutors from filing criminal charges against doctors and patients who terminate a pregnancy.
Where that’s not possible, they can put out guidance that defense attorneys in those cases can use and advise against prosecuting people for having or assisting with an abortion.
And as anti-abortion-rights states try to reach beyond their borders to prevent people from going to neighboring states to end a pregnancy, attorneys general can defend their residents from charges and claims brought by other state officials or individuals.
Conversely, anti-abortion-rights attorneys general can direct local prosecutors to enforce a state ban and can themselves file charges against, say, a Planned Parenthood clinic for alleged violations.
Several Democratic attorneys general have signaled how they could use the powers of their office to protect reproductive rights in a post-Roe landscape.
In January, California Attorney General Rob Bonta released a memo warning every district attorney, police chief and sheriff in the state not to use any state law “to punish people who suffer the loss of their pregnancy” — calling out the cases of two women who were charged with “fetal murder” in Kings County after experiencing stillbirths related to drug use, only one of whom has had the charges dismissed.
That same month, Delaware Attorney General Kathy Jennings sued to block the town of Seaford from requiring an abortion clinic to hold burials for fetal remains at patients’ expense.
Democratic attorneys general have also banded together to challenge federal policies and intervene in other states’ legal battles over abortion. This most recently happened with Texas’ privately enforced six-week abortion ban, when blue state attorneys general argued in an amicus brief that their health systems will likely be strained by a flood of Texas patients coming in for the procedure.
“My opponents will say, ‘Why does he keep sticking his nose into other states’ business?’” Illinois Attorney General Kwame Raoul, who is running for reelection, told POLITICO. “But we’re an oasis for reproductive health care surrounded by states with legislatures who want to undermine access to reproductive health care. So guess where folks are coming when access is restricted.”
Heading into November, Democrats control 24 out of 51 attorney general seats — some of which are appointed rather than popularly elected. Twelve of those incumbents are up for reelection, several of them in states like Michigan where Republicans have or likely will enact abortion bans. Seven other Democratic candidates are challenging Republican incumbents and eight are vying for open seats.
Abortion-rights advocacy groups including NARAL, Planned Parenthood and EMILY’s List are highly attuned to these races and have mobilized — particularly after the release of the Supreme Court draft opinion — to endorse Democratic attorney general candidates, hold rallies with them, coach them on strategy and messaging, and urge their millions of members to donate to Democratic campaigns.
The Democratic Attorneys General Association is also leaning into the issue, announcing on Friday a record $30 million investment in the campaigns of their candidates in Georgia, Arizona and more yet-to-be named battleground states in light of “the national emergency on abortion,” nearly twice what the group raised in 2018.
Not only will the winners of these races play a major role in abortion law, but the post is also a reliable pipeline to higher office — so much so that the National Association of Attorneys General is wryly referred to in political circles as the National Association of Aspiring Governors. Several current and prospective governors and senators are former state attorneys general, as is the current vice president as well as the energy and health secretaries.
While the expected imminent end of Roe is adding fresh urgency to this year’s elections, abortion has long animated Democratic attorney general candidates, who’ve argued that they will be the tip of the spear if the court overturns the 50-year old precedent and pushes the decision back to the states — nearly half of which already have laws on the books banning most or all abortions.
In 2019, after the then-Republican Senate confirmed two of Trump’s nominees to the Supreme Court, the Democratic Attorneys General Association became the first and, so far, only national campaign committee to require support for abortion rights as a condition of its endorsement and financial backing. So while there remains a small cadre of anti-abortion Democratic House members, senators and governors, the group’s litmus test means the current slate of attorneys general is staunchly and uniformly pro-abortion rights.
“We put our mark down and said: ‘If you want to be a Democratic AG, you have to be loud and proud about the right to abortion,” Jennings, the organization’s co-chair, told POLITICO. “We will support you, but you have to support this right.”
Dozens of Democratic attorneys general repeatedly sued the Trump administration over executive actions that limited access to abortion and contraception — including restrictions on the Title X family planning program and Obamacare’s contraception mandate. And Rochelle Garza, the Democrat running for attorney general in Texas, led advocacy groups suing the Trump administration in 2017 for denying abortions to undocumented teenagers in immigration detention facilities.
Now, the draft opinion ending Roe has Democrats saying they feel more pressure than ever to win these races and act as a “backstop” for abortion rights.
“During the Trump years the AGs were trying to protect their constituents from the overreach of the administration and policies they saw as both unconstitutional and likely to hurt people. But what’s interesting is that now AGs are having to stand up to overreach from their own states,” said Georgia state senator Jen Jordan, the Democratic candidate for attorney general who has vowed not to enforce the state’s six-week abortion ban that could go into effect if Roe falls. “Our legislature — House and Senate — is controlled by Republicans and thanks to gerrymandering that’s not going away anytime soon. So the only person standing in the gap would be an AG.”
The Republican Attorneys General Association, which significantly outraised its Democratic counterpart in the first quarter of this year according to a POLITICO review of IRS data, told POLITICO they have no corresponding requirement that GOP attorney general candidates oppose abortion rights.
“A commitment to supporting and defending the Constitution and rule of law is the only litmus test,” said Peter Bisbee, the group’s executive director.
Yet nearly all Republicans running oppose abortion rights — and are promising voters that they’ll defend and enforce state abortion bans and try to block any attempts by Biden and a Democratic Congress to expand access to the procedure.
“Attorney general races are going to be some of the most consequential elections this November,” Bisbee said. “Americans know Republican AGs and candidates are the only thing standing between themselves and the radical progressive agenda.”
Yet even in red-leaning states where those in power oppose abortion rights, Democrats point to polling showing most voters, including large numbers of Republicans and Independents, want to preserve at least some access to the procedure, and predict a political backlash that could help boost them this fall.
“I’m going to make it clear to Arizonans that they can protect reproductive rights by electing me AG,” Kris Mayes, the Democratic candidate in the swing state, told POLITICO. “The Republicans are like the dog that caught the bus. They don’t know what’s coming in November.”
Megan Wilson contributed to this report.