Commentary: Roe and Its Implications for DA’s Races

By Rory Fleming

The leak of a draft opinion from the Supreme Court in an ongoing abortion case, Dobbs v. Jackson Women’s Health Organization, confirms the fears of many who have speculated that the high court would overturn Roe and pave the way for the general criminalization of abortion. A person familiar with the Court’s deliberations told Politico journalists that five Republican appointees (including three Trump appointees) are prepared to join Justice Samuel Alito’s majority opinion overturning Roe, while the three Democrat appointees are preparing dissents. Chief Justice John Roberts, also a Republican appointee, is apparently still undecided.

In Justice Alito’s draft opinion, he swipes at doctors who perform abortions, calling them “abortionists,” which borders on a slur and an accusation of criminality. He calls the opinion in Roe “egregiously wrong,” marred by “exceptionally weak” legal reasoning. He also claimed that Roe “inflamed debate and deepened division” between Americans.  

Justice Alito can wax poetically all he wants about the perceived difficulties accompanying political division, but such division has always existed, albeit buried beneath the surface of American life. He also does not appear that worried about making matters “worse,” since this opinion will undoubtedly be the sole topic of a huge percentage of polarizing political campaign ads in the coming years or decades.

Post-Dobbs, the gloves should come off, on both sides. That requires a deep recognition that, for a huge percentage of Republicans, banning abortion is the only goal that matters. This issue — electing immoral and irresponsible leaders so long as they pledge to “protect the unborn” — extends beyond single-issue voters. Single-issue candidates are also an issue. 

As a veteran political consultant who has worked on upwards of fifteen District Attorney campaigns, I can say that people who run for office, including top local prosecutor seats, are generally motivated by an underlying agenda they wish to further. I saw this up close when I briefly worked for Rory Lancman’s campaign for Queens District Attorney in 2019. Lancman drew me in with his claims that he wanted to be the progressive choice for DA, but I walked out on him when I discovered that his real desire to become DA came from his desire to use the DA seat and his mangled interpretation of the New York criminal law to bully college students who join BDS protests. 

This is especially relevant for Los Angeles, right now, because Steve Cooley, the former LA DA who is leading the campaign to recall current DA George Gascón, is a Republican. While 80 percent of Democrats think abortion should be safe and legal, only a meager 35 percent of Republicans do. Furthermore, 30 percent of “pro-life” voters consider themselves single-issue voters, compared with 19 percent of pro-choice voters. Cooley has also publicly suggested that he may want to use the recall to springboard his own campaign for DA, according to some commentators, even though Cooley has also insinuated that the recall campaign is bipartisan. 

The truth is that a Republican DA in Los Angeles could force the overwhelmingly blue county to criminalize abortion, even absent a specific California criminal law doing so. They can use appeals to tough-on-crime tactics as a Trojan horse to usher in an anti-abortion radical. Then, when a woman tries to get an abortion? In the absence of Roe, that radical right-wing DA could file attempted assault or attempted murder charges, or even both. Prosecutors nationwide have been warping the criminal law to hypercarceral effect for years, such as when they use old-school homicide statutes to harshly punish people who sell drugs for overdoses they may have accidentally caused. 

But Cooley is not just any old Republican; he is an anti-choice partisan who perseverates endlessly and publicly on abortion issues. Since leaving government service, he has become the private defense attorney for anti-choice activist David Daleiden. Daleiden, who runs the Irvine-based Center for Medical Progress (also a Cooley client), has been charged criminally in several states for eavesdropping and secretive filming while trying to goad Planned Parenthood offices into selling fetal tissue. 

Cooley also appears to be tied to creepy anti-abortion activist Lauren Handy, who is affiliated with an organization called Progressive Anti-Abortion Uprising (PAAU). Handy apparently hoarded 115 sets of fetal remains, which they “blessed and buried,” though they are claiming to be a whistleblower. (Handy identifies as nonbinary.) At the beginning of April, PAAU posted a letter addressed to the Homicide Branch of the Metropolitan Police Department in Washington, D.C. The writer of the letter claims to be Cooley and provided an email contact that uses former DA Cooley’s law firm’s email server. Cooley claims in this letter that an “entity,” presumably PAAU, was in possession of fetal remains it obtained from a “whistleblower,” and the intent of the letter appears to be the criminal investigation for homicide of whoever was responsible for the abortions. Cooley even claims, without evidence, that some of the fetuses were possibly the result of “live birth abortions”; this would constitute murder if true. However, nearly a week later, the MPD was still investigating Handy, who also happens to be under federal indictment for blocking access to an abortion clinic in 2020.

Anyone who claims to support women’s autonomy and dignity cannot afford the risk of Steve Cooley taking back the Los Angeles DA seat. Such a turn of events have catastrophic results on the lives of Angelenos. It would also send an awful message nationally. If a woman cannot even access reproductive healthcare in one of the most liberal counties in the nation, what does that mean for women who live in rural areas or the suburbs?

Rory Fleming is a writer and attorney