Ohio AG says prosecutors who won't pursue abortion providers can be removed from office

If locally elected prosecutors refuse to pursue criminal charges against abortion providers, Ohio Attorney General Dave Yost argues states have the power to remove them from office.

Yost and 14 other Republican state attorneys general filed an amicus curiae, or "friend of the court," brief supporting that position Wednesday with the 11th U.S. Circuit Court of Appeals in Atlanta.The brief was filed in a case involving the ouster of a Democratic prosecutor in Tampa by Florida Gov. Ron DeSantis. Republican DeSantis removed Hillsborough County State Attorney Andrew Warren from office in August after Warren signed on to a pledge to not prosecute abortion cases as crimes. DeSantis said Warren's ouster was for “neglect of duty” in his role as prosecutor.

One of the pledges Warren signed was also signed by Cuyahoga County Prosecutor Michael O’Malley and Columbus City Attorney Zach Klein, both Democrats. Under an Ohio law that is not in effect while it’s being challenged in the courts, providing an abortion after six weeks into pregnancy is a fifth-degree felony punishable by up to one year in prison.

Yost said in a news release that prosecutors do not have the right to veto the law.

“But some are acting as though they do – and they are breaking our system of government. The political preferences of a single prosecutor cannot be allowed to override a lawfully enacted statute,” Yost said.

Klein, whose office does not handle felony cases, responded to Yost's claims in a statement issued late Wednesday afternoon:

“Every day, independently elected prosecutors in Ohio use their discretion in deciding how to allocate limited resources to prosecute cases free from the dictates of the Attorney General. Prioritizing when and how to prosecute the Republican Party’s criminalization of personal health care decisions would be no different. The City of Columbus will continue to use our prosecutorial discretion to put the safety and security of Columbus residents first by targeting violent crime, domestic violence and other serious crimes that threaten public safety far more than any personal healthcare decision ever would.”

Franklin County Prosecutor Gary Tyack has not commented on whether his office would prosecute abortion providers, and a representative of his office declined to comment Wednesday.

Warren sued DeSantis in federal court, avoiding a hearing on the removal before the Republican-controlled Florida Senate and that state's Supreme Court with several DeSantis appointees. He argued that DeSantis violated his First Amendment right to freedom of speech, while also saying his pledges did not represent the prosecutorial policy of his office.

In January, U.S. District Judge Robert L. Hinkle of the Northern District of Florida in Tallahassee decided that DeSantis violated the state constitution and the First Amendment when he removed Warren. But Hinkle, an appointee of President Bill Clinton, a Democrat, also decided that he lacked the authority as a federal judge to restore Warren to office.

Warren is appealing his case to the 11th Circuit Court of Appeals.

Yost contends the First Amendment does not limit a state’s ability to remove prosecutors.

“A world in which each prosecutor is free to ignore the law in favor of his or her own individual sense of what the law ought to be is a world where what will get you arrested depends on who's in office — a government of individual prejudices, not a government of laws,” Yost said.

Joining Yost in signing onto the court brief were Republican attorneys general from Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah and West Virginia.

Warren’s attorney, Jean-Jacques Cabou, released this statement Wednesday:

“It’s scary to see not one, or two, but several states of the United States line up behind Ron DeSantis to argue that the First Amendment doesn’t protect elected officials from speaking their minds. The Supreme Court has long held that the free speech of elected officials is a cornerstone of our democracy; that speech is how the voters decide who to vote for. This brief is out of step with Supreme Court precedent and out of step with basic principles of a free and democratic society. The District Court rejected the arguments they are making and agreed that Mr. Warren’s speech was protected by the First Amendment, and we are confident the 11th Circuit will do the same.”

jlaird@dispatch.com

@LairdWrites

This article originally appeared on The Columbus Dispatch: Ohio AG: prosecutors who won't charge abortion providers can be ousted