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How prosecutor discretion could play into the upcoming abortion debate in Virginia


Across Virginia, some Commonwealth’s Attorneys are already saying they will not prosecute abortion cases if it becomes illegal. But, lawmakers opposed to abortion could find ways around that.

Prosecutors in these nine jurisdictions say they will not prosecute new restrictions on abortion: Alexandria, Arlington, Charlottesville, Fairfax, Henrico, Loudoun, Norfolk, Portsmouth and Richmond.

Fairfax County Commonwealth's Attorney Steve Descano says elected prosecutors have that right.

"Local prosecutors every single day in every courthouse in America make the decision on what cases to go forward with and which cases not to go forward with," Descano explains. "I would be doing the same thing with abortion that I previously did with marijuana, which was to use that discretion to forgo prosecuting a class of crimes."

But Senator Scott Surovell, a Democrat from Fairfax County, says lawmakers opposed to abortion could craft legislation in a way that bypasses the discretion of local prosecutors to carry out a new law.

"That could include creating some kind of a special abortion task force to go after women if there's local prosecutors that are unwilling to take on these cases," Surovell says. "I think people — voters — should assume that's a definitive possibility."

He says Virginia already has a Medicaid prosecutor task force, and lawmakers could create an abortion prosecutor task force run out the Office of the Attorney General removing that discretion from the nine Commonwealth’s Attorneys who say they won’t prosecute abortion crimes.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Michael Pope is an author and journalist who lives in Old Town Alexandria.