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Can Cuyahoga County Prosecutor Michael O'Malley legally refuse to enforce abortion ban?

Michael O'Malley vowed not to prosecute providers or patients who don't follow new abortion law. Is his refusal lawful?

CLEVELAND — “Prosecuting individuals who seek or provide abortion care makes a mockery of justice; prosecutors should not be part of that”. 

This is a quote from the letter around 90 prosecutors across the nation signed after the Supreme Court overturned Roe vs. Wade, including Cuyahoga County Prosecutor Michael O’Malley.

"We’re thrilled to know that, at least at the county level, and in the county that we operate in, that we have the support of the county prosecutor," says Colette Ngana, Chair of the Board of Directors at Preterm.

O’Malley signed the Fair and Just Prosecution Joint Statement of Elected Prosecutors, vowing not to bring criminal charges against abortion providers or patients - even if they violate Ohio’s Heartbeat Law, which bans abortions as soon as a fetal heartbeat is detected.

"I think it’s terrible," says Elizabeth Whitmarsh, Communications Director for Ohio Right to Life. "What those prosecutors are essentially saying is, 'I’m not gonna do my job.' Their job is specifically to uphold the law."

It turns out, prosecutors can refuse to prosecute in many cases, and often do.

"Prosecutors have a tremendous amount of discretion to decide what kinds of cases - and, specifically, which case - they want to prosecute or don’t want to prosecute. Like certain negligence cases – perhaps a baby left in a hot car," says Michael Benza, Case Western Reserve University's Senior Instructor with the School of Law. "Many prosecutors may feel that parent has suffered enough, and will choose not to prosecute. The same goes for minor marijuana possession and other lesser drug crimes. Some prosecutors will say 'We won’t prosecute those. We don’t need to. Why should I punish this person?'"

The Joint Prosecutors letter also mentions the financial strain prosecuting abortion law violators would put on the legal system. “Prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions," reads a portion of the document.

"Oftentimes, the decision to not prosecute is maybe even more important and often more difficult than the decision to prosecute," says Benza.

O’Malley is one of two prosecutors in Ohio who signed the Joint Prosecutors letter. Zach Klein - the city attorney of Columbus – is the other.

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