COVINGTON, Ga. — Newton County's DA says other district attorneys’ refusals to consider cases related to abortion under any circumstances is taking the office’s power to decide which cases to prosecute "too far."
DA Randy McGinley of the Alcovy Judicial Circuit said in an opinion piece sent to area media that he did not know "if I will or will not prosecute something" related to abortion because he did not know "based on the facts and circumstances, if going forward with prosecution would be appropriate."
"There are an infinite number of unique facts and circumstances that could arise," he said.
The Supreme Court’s landmark decision June 24 ends federal abortion protections guaranteed under the 50-year-old Roe v. Wade ruling.
The Court’s 6-3 ruling sent the decision on abortion rights to legislators nationwide to pass their own laws on state-by-state basis.
Georgia lawmakers passed a strict "Heartbeat Law" in 2019 that bans abortions at around six weeks of pregnancy before some women know they are pregnant, GPB News reported.
A federal Court of Appeals was considering the Georgia law before the ruling. The law likely will go into effect based on the June 24 ruling after the Court of Appeals asked for new filings within 21 days on the impacts of the Supreme Court's decision.
District attorneys in eight Georgia counties said recently they plan not to enforce the state’s abortion law.
Prosecutors in Gwinnett, DeKalb, Chatham, Athens-Clarke, Oconee, Douglas, Burke and Richmond counties joined more than 80 district attorneys nationwide in signing a letter pledging to push back against strict abortion laws or outright bans anticipated in at least 25 states, GPB reported.
“Not all of us agree on a personal or moral level on the issue of abortion,” the letter reads, "But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions."
McGinley, who oversees prosecution of cases in Newton and Walton counties, told The Covington News he penned his opinion piece because he “had many, many people reach out to me and ask me if a DA can just ignore a law regardless of the circumstances.”
“In my experience, when there are that many people actually asking me a question, that means there are many more that are wondering the same thing,” he said.
He said he also was concerned and frustrated “that only one view of prosecutorial discretion is ever actually reported on” by area news media.
“The public often does not know the duties, or extent of the duties, of a district attorney. I think making sure the public is aware of the role of this office is very important.”
He added he hoped the DAs who signed the letter view his comments in the column as a “disagreement” with them about the duties of district attorneys in Georgia rather than a direct criticism of their actions.
McGinley wrote in his opinion piece that the Heartbeat Law and the topic of abortion "come with extremely high emotions and firmly held beliefs by many."
However, prosecutors "are not super legislators" and "we cannot and should not veto a law."
He said he did not agree that “limited resources” was a reason for not prosecuting cases.
"I do not believe that a lack of resources, even if truly the reason, is a valid justification for a prosecutor to essentially veto a law," McGinley wrote.
He said it was "mostly correct" that a DA is in charge of how resources within the DA's office are used.
"While that is mostly correct, we are still subject to the laws passed by the General Assembly and we are charged with enforcing them, subject to our inherent prosecutorial discretion on a case by case basis," McGinley wrote.
"If a district attorney is not provided the resources necessary to do their constitutional and statutory duty, that is something to be addressed with the governing authorities that determine the budget for the district attorneys’ offices, the state of Georgia and each county’s board of commissioners," he said.
He said a "blanket statement that a prosecutor would not prosecute a certain crime that has been properly passed by our state Legislature, signed into law by the governor, and if found to be constitutional" is an exercise of "prosecutorial veto" — a refusal to prosecute a violation of a law without any knowledge of the facts and circumstances of a specific case.
"Refusing to make a case by case determination of a situation usurps the role of the legislative body, who is the voice of the people," McGinley said.
"Prosecutors have great power and responsibility, but with that comes the responsibility to not take our power too far," he said. "Refusing to prosecute a crime, a category of crimes, or an entire body of law regardless of the facts is taking that power too far.
"If a district attorney has the power to determine what laws are valid and what laws are not, where does that power end? Does a district attorney have the power to not prosecute drug possession regardless of the facts and circumstances of a specific case? Should someone that has 10 prior possession of heroin convictions that is shooting up heroin while sitting in the lobby of a daycare not be prosecuted because a single person believes the law against such actions is not worthy of prosecution?
"Should a district attorney have the power to refuse to prosecute theft cases regardless of the effect on the victim and regardless of the facts and circumstances?
"If a district attorney has that power, what stops them from having the power to refuse to prosecute any rape or child molestation case regardless of the circumstances?" McGinley asked.
He noted that "there are still some crimes in Georgia that have not been repealed but have been held unconstitutional by the courts."
"In no way do I suggest that going forward on a case involving a crime that has been ruled unconstitutional is appropriate," he said.
"Further, it is my opinion that, depending on the facts and circumstances of a specific case, it may be an appropriate use of prosecutorial discretion to withhold making a decision on a case while the constitutionality of a law is currently being challenged in court."