We are entering an era not just of unsafe abortions but of the widespread criminalization of pregnancy.
By Jia Tolentino June 24, 2022
IMAGE - Ball and chained women. Illustration by Chloe Cushman
In the weeks since a draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization—a case about a Mississippi law that bans abortion after fifteen weeks, with some health-related exceptions but none for rape or incest—was leaked .. https://www.newyorker.com/news/daily-comment/whats-missing-from-the-drafted-decision-to-overturn-roe-v-wade , a slogan has been revived: “We won’t go back.” It has been chanted at marches, defiantly but also somewhat awkwardly, given that this is plainly an era of repression .. https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills .. and regression .. https://fortune.com/2019/02/13/us-income-inequality-bad-great-depression/ , in which abortion rights are not the only rights disappearing. Now that the Supreme Court has issued its final decision, overturning Roe v. Wade and removing the constitutional right to abortion, insuring that abortion will become illegal or highly restricted in twenty states, the slogan sounds almost divorced from reality—an indication, perhaps, of how difficult it has become to comprehend the power and the right-wing extremism of the current Supreme Court.
Support for abortion has never been higher .. https://www.wsj.com/articles/upholding-roe-v-wade-is-supported-by-most-americans-wsj-poll-finds-11654162200 , with more than two-thirds of Americans in favor of retaining Roe, and fifty-seven per cent affirming a woman’s right to abortion for any reason. Even so, there are Republican officials who have made it clear that they will attempt to pass a federal ban on abortion if and when they control both chambers of Congress and the Presidency. Anyone who can get pregnant must now face the reality that half of the country is in the hands of legislators who believe that your personhood and autonomy are conditional—who believe that, if you are impregnated by another person, under any circumstance, you have a legal and moral duty to undergo pregnancy, delivery, and, in all likelihood, two decades or more of caregiving, no matter the permanent and potentially devastating consequences for your body, your heart, your mind, your family, your ability to put food on the table, your plans, your aspirations, your life.
“We won’t go back”—it’s an inadequate rallying cry, prompted only by events that belie its message. But it is true in at least one sense. The future that we now inhabit will not resemble the past before Roe, when women sought out illegal abortions and not infrequently found death. The principal danger now lies elsewhere, and arguably reaches further. We have entered an era not of unsafe abortion but of widespread state surveillance and criminalization—of pregnant women, certainly, but also of doctors and pharmacists and clinic staffers and volunteers and friends and family members, of anyone who comes into meaningful contact with a pregnancy that does not end in a healthy birth. Those who argue that this decision won’t actually change things much—an instinct you’ll find on both sides of the political divide—are blind to the ways in which state-level anti-abortion crusades have already turned pregnancy into punishment, and the ways in which the situation is poised to become much worse.
In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime. Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate. Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found.
Five years ago, Latice Fisher, a Black mother of three from Mississippi, who made eleven dollars an hour as a police-radio operator, experienced a stillbirth, at roughly thirty-six weeks, at home. When questioned, she acknowledged that she didn’t want more kids and couldn’t afford to take care of more kids. She surrendered her phone to investigators, who scraped it for search data and found search terms regarding mifepristone and misoprostol, i.e., abortion pills.
These pills are among the reasons that we are not going back to the era of coat hangers. They can be prescribed via telemedicine and delivered via mail .. https://www.newyorker.com/news/daily-comment/midwest-abortion-providers-scramble-to-prepare-for-a-post-roe-world ; allowing for the prescription of an extra dose, they are ninety-five to ninety-eight per cent effective in cases of pregnancy up to eleven weeks, which account for almost ninety per cent of all abortions in the U.S. Already, more than half of all abortions in the country are medication abortions.In nineteen states, doctors are prohibited from providing abortions via telemedicine, but women can seek help from clinicians in other states and abroad .. https://www.newyorker.com/news/news-desk/what-the-us-could-learn-from-abortion-without-borders , such as Rebecca Gomperts, who leads Aid Access, an organization based in Austria that is openly providing abortion pills to women in prohibition states, and has been safely mailing abortion pills to pregnant people all over the world since 2005, with the organization Women on Web. In advance of the U.S. bans, Gomperts has been promoting advance prescription .. https://www.politico.com/news/magazine/2022/06/03/rebecca-gomperts-interview-abortion-00036742 : sympathetic doctors might prescribe abortion pills for any menstruating person, removing some of the fears—and, possibly, the traceability—that would come with attempting to get the pills after pregnancy. Misoprostol can be prescribed for other issues, such as stomach ulcers, and Gomperts argues that there is no reasonable medical argument against advance prescription. “If you buy bleach in the supermarket, that’s more dangerous,” she has said.
There was no evidence that Latice Fisher took an abortion pill. She maintained that she had experienced a stillbirth—an occurrence in one out of every hundred and sixty pregnancies in the U.S. Nonetheless, she was charged with second-degree murder and held for several weeks on a hundred-thousand-dollar bond. The district attorney, Scott Colom, had campaigned as a progressive reformer; advocates pushed him to drop the murder charge, and to provide a new grand jury with information about an antiquated, unreliable “float test” that had been used as a basis for the allegation that Fisher’s baby was born alive. The grand jury declined to indict Fisher again; the ordeal took more than three years.
Even if it remains possible in prohibition states to order abortion pills, doing so will be unlawful. (Missouri recently proposed classifying the delivery or shipment of these pills as drug trafficking .. https://www.senate.mo.gov/22info/BTS_Web/Bill.aspx?SessionType=R&BillID=76856348 . Louisiana just passed a law that makes mailing abortion pills to a resident of the state a criminal offense, punishable by six months’ imprisonment.) In many states, to avoid breaking the law, a woman would have to drive to a state where abortion is legal, have a telemedicine consultation there, and then receive the pills in that state. Many women in Texas have opted for a riskier but easier option: to drive across the border .. https://www.newyorker.com/magazine/2022/06/20/a-texas-teen-agers-abortion-odyssey , to Mexico, and get abortion pills from unregulated pharmacies, where pharmacists may issue incorrect advice for usage. Some women who lack the freedom and money to travel out of state, and who might fear the consequences of seeking a clinical confirmation of their gestational stage, will order abortion pills without a clear understanding of how far along they are in pregnancy. Abortion pills are safe and effective, but patients need access to clinical guidance and follow-up care. Women in prohibition states who want to seek medical attention after a self-managed abortion will, as a rule, have to choose between risking their freedom and risking their health.
Both abortion and miscarriage currently occur more than a million times each year in America, and the two events are often clinically indistinguishable .. https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america . Because of this, prohibition states will have a profoundly invasive interest in differentiating between them. Some have already laid the groundwork for establishing government databases of pregnant women likely to seek abortions. Last year, Arkansas passed a law called the Every Mom Matters Act .. https://www.arkleg.state.ar.us/Bills/Detail?id=HB1195&chamber=House&ddBienniumSession=2021%2F2021R , which requires women considering abortion to call a state hotline and requires abortion providers to register all patients in a database with a unique I.D. Since then, six other states have implemented or proposed similar laws. The hotlines are provided by crisis pregnancy centers .. https://www.newyorker.com/magazine/2019/11/18/the-new-front-line-of-the-anti-abortion-movement : typically Christian organizations, many of which masquerade as abortion clinics, provide no health care, and passionately counsel women against abortion. Crisis pregnancy centers are already three times as numerous as abortion clinics in the U.S., and, unlike hospitals, they are not required to protect the privacy of those who come to them. For years, conservative states have been redirecting money .. https://www.texastribune.org/2021/06/08/texas-abortion-budget/, often from funds earmarked for poor women and children, toward these organizations. The data that crisis pregnancy centers are capable of collecting—names, locations, family details, sexual and medical histories, non-diagnostic ultrasound images—can now be deployed against those who seek their help.
If you become pregnant, your phone generally knows before many of your friends do. The entire Internet economy is built on meticulous user tracking of purchases and search terms. Laws modelled on Texas’s S.B. 8 .. https://www.newyorker.com/news/news-desk/sb-8-and-the-texas-preview-of-a-world-without-roe-v-wade , which encourages private citizens to file lawsuits against anyone who facilitates an abortion, will proliferate, giving self-appointed vigilantes no shortage of tools to track and identify suspects. (The National Right to Life Committee recently published policy recommendations .. https://www.nrlc.org/communications/national-right-to-life-committee-proposes-legislation-to-protect-the-unborn-post-roe/ .. for anti-abortion states that included criminal penalties for anyone who provides information about self-managed abortion “over the telephone, the internet, or any other medium of communication.”) A reporter for Vice recently spent a mere hundred and sixty dollars to purchase a data set .. https://www.vice.com/en/article/m7vzjb/location-data-abortion-clinics-safegraph-planned-parenthood .. on visits to more than six hundred Planned Parenthood clinics. Brokers sell data that make it possible to track journeys to and from any location—say, an abortion clinic in another state. In Missouri, this year, a lawmaker proposed a measure .. https://missouriindependent.com/2022/03/29/missouri-house-blocks-effort-to-limit-access-to-out-of-state-abortions/ .. that would allow private citizens to sue anyone who helps a resident of the state get an abortion elsewhere; as with S.B. 8, the law would reward successful plaintiffs with ten thousand dollars. The closest analogue to this kind of legislation is the Fugitive Slave Act of 1793.
For now, the targets of S.B. 8-type bounty laws are those who provide abortions, not those who seek them. But that seems likely to change. Connecticut, a progressive state on the matter of abortion, recently passed a law that prevents local agencies from coöperating with out-of-state abortion prosecutions and protects the medical records of out-of-state clients. Other progressive states will follow suit. If prohibition states can’t sue out-of-state doctors, and, if abortion pills sent by mail remain largely undetectable, the only people left to target will be abortion advocates and those trying to get abortions. The Stream, a conservative Christian publication, recently advocated mandatory psychiatric custody .. https://stream.org/once-the-law-protects-unborn-kids-should-we-seek-legal-penalties-for-women-who-abort-them/ .. for women who get abortions. In May, Louisiana advanced a bill that would allow abortion patients to be charged with murder. The proposal was withdrawn, but the threat had been made.
The theological concept of fetal personhood—the idea that, from the moment of conception, an embryo or fetus is a full human being, deserving of equal (or, more accurately, superior) rights—is a foundational doctrine of the anti-abortion movement. The legal ramifications .. https://www.newyorker.com/news/our-columnists/how-fetal-personhood-emerged-as-the-next-stage-of-the-abortion-wars .. of this idea—including the possible classification of I.V.F., IUDs, and the morning-after pill as instruments of murder—are unhinged, and much harsher than what even the average anti-abortion American is currently willing to embrace. Nonetheless, the anti-abortion movement is now openly pushing for fetal personhood to become the foundation of U.S. abortion law.
If a fetus is a person, then a legal framework can be invented to require someone who has one living inside her to do everything in her power to protect it, including—as happened to Savita Halappanavar .. https://rewirenewsgroup.com/article/2012/11/18/death-savita-halappanavar-tragedy-leading-to-long-overdue-change/ , in Ireland, which operated under a fetal-personhood doctrine until 2018, and to Izabela Sajbor, in Poland, where all abortion is effectively illegal—to die. No other such obligation exists anywhere in our society, which grants cops the freedom to stand by as children are murdered behind an unlocked door. In Poland, pregnant women with cancer have been routinely denied chemotherapy because of clinicians’ fears of harming the fetus.
Fetal-personhood laws have passed in Georgia and Alabama, and they are no longer likely to be found unconstitutional. Such laws justify a full-scale criminalization of pregnancy, whereby women can be arrested, detained, and otherwise placed under state intervention for taking actions perceived to be potentially harmful to a fetus. This approach has been steadily tested, on low-income minorities in particular, for the past four decades. National Advocates for Pregnant Women—the organization that has provided legal defense for most of the cases mentioned in this article—has documented almost eighteen hundred cases, from 1973 to 2020, of prosecutions or forced interventions related to pregnancy; this is likely a substantial undercount. Even in states such as California, where the law explicitly prohibits charging women with murder after a pregnancy loss, conservative prosecutors are doing so anyway.
Most pregnancy-related prosecutions, so far, have revolved around drug use. Women who used drugs while pregnant, or sought treatment for drug use during pregnancy, have been charged with child abuse, child neglect, distribution of drugs to a minor, assault with a deadly weapon, manslaughter, and homicide. In 2020, law enforcement in Alabama investigated a woman named Kim Blalock for chemical endangerment of a child after she told delivery-room staff that she had been taking prescribed hydrocodone for pain management. (The district attorney charged her with prescription fraud—a felony—before eventually dropping the prosecution altogether.) There has been a string of shocking recent prosecutions in Oklahoma, in which women who used drugs have been charged with manslaughter .. https://www.nytimes.com/2021/10/18/opinion/poolaw-miscarriage.html .. for miscarrying well before the point of viability. In Wisconsin, state law already allows juvenile courts to take a fetus—meaning a pregnant woman—into custody for the fetus’s protection, resulting in the detention and forced treatment of more than four hundred pregnant women every year on the suspicion that they may be consuming controlled substances. A proposed law .. https://www.nationaladvocatesforpregnantwomen.org/testimony-to-the-wyoming-senate-in-opposition-to-sf0089-child-protection-dangerous-drugs/ .. in Wyoming would create a specific category of felony child endangerment for drug use while pregnant, a law that resembles Tennessee’s former Fetal Assault Law. The Tennessee law was discontinued after two years, because treating women as adversaries to the fetuses they carry has a chilling effect on prenatal medicine, and inevitably results in an increase in maternal and infant death.
The mainstream pro-choice movement has largely ignored the growing criminalization of pregnancy, just as it has generally ignored the inadequacy of Roe. (It took Joe Biden, who campaigned on making Roe the “law of the land,” more than a year to say the word “abortion” on the record after he became President; the Democrats, given the chance to override the filibuster and codify Roe in May, predictably failed to do so.) Many of those who support the right to abortion have tacitly accepted .. https://www.nytimes.com/2022/06/06/briefing/roe-v-wade-abortion-access-america.html .. that poor and minority women in conservative states lost access to abortion long before this Supreme Court decision, and have quietly hoped that the thousands of women facing arrest after pregnancy, miscarriage, stillbirth, or even healthy deliveries .. https://www.propublica.org/article/when-the-womb-is-a-crime-sce .. were unfortunate outliers. They were not outliers, and, as the columnist Rebecca Traister noted .. https://www.thecut.com/2022/05/roe-v-wade-limits-of-privilege.html .. last month, the chasm between the impervious class and everyone else is growing every day.
Pregnancy is more than thirty times more dangerous than abortion. One study estimates that a nationwide ban would lead to a twenty-one-per-cent rise .. https://www.colorado.edu/today/2021/09/08/study-banning-abortion-would-boost-maternal-mortality-double-digits .. in pregnancy-related deaths. Some of the women who will die from abortion bans are pregnant right now. Their deaths will come not from back-alley procedures but from a silent denial of care: interventions delayed, desires disregarded. They will die of infections, of preëclampsia, of hemorrhage, as they are forced to submit their bodies to pregnancies that they never wanted to carry, and it will not be hard for the anti-abortion movement to accept these deaths as a tragic, even noble, consequence of womanhood itself.
In the meantime, abortion bans will hurt, disable, and endanger many people who want to carry their pregnancies to term but who encounter medical difficulties. Physicians in prohibition states have already begun declining to treat women .. https://slate.com/news-and-politics/2022/05/roe-dobbs-abortion-ban-reproductive-medicine-alabama.html .. who are in the midst of miscarriages, for fear that the treatment could be classified as abortion. One woman in Texas was told .. https://www.reformaustin.org/womens-rights/texas-abortion-law-already-putting-people-in-danger/ .. that she had to drive fifteen hours to New Mexico to have her ectopic pregnancy—which is nonviable, by definition, and always dangerous to the mother—removed. Misoprostol, one of the abortion pills, is routinely prescribed for miscarriage management, because it causes the uterus to expel any remaining tissue. Pharmacists in Texas, fearing legal liability, have already refused to prescribe it .. https://slate.com/news-and-politics/2022/05/abortion-texas-pharmacies-refusing-prescriptions-misoprostol-methotrexate.html . If a miscarriage is not managed to a safe completion, women risk—among other things, and taking the emotional damage for granted—uterine perforation, organ failure, infection, infertility, and death.
Most miscarriages are caused by factors beyond a pregnant person’s control: illnesses, placental or uterine irregularities, genetic abnormalities. But the treatment of pregnant people in this country already makes many of them feel directly and solely responsible for the survival of their fetus. They are told to absolutely avoid alcohol, coffee, retinol, deli turkey, unpasteurized cheese, hot baths, vigorous exercise, drugs that are not prescribed to them, drugs that they have been prescribed for years—often without any explanation of the frequently shoddy reasoning behind these prohibitions. Structural factors that clearly increase the likelihood of miscarriage—poverty, environmental-chemical exposure, working night shifts—are less likely to come up. As fetal personhood becomes law in more of the land, pregnant people, as Lynn Paltrow, the director of National Advocates for Pregnant Women, has pointed out .. https://msmagazine.com/2021/04/15/abortion-constitutional-rights-unborn-fetus-14th-amendment-womens-rights-pregnant/ , “could be sued, or prevented from engaging in travel, work, or any activity that is believed to create a risk to the life of the unborn.”
Half a century ago, the anti-abortion movement was dominated by progressive, antiwar, pro-welfare Catholics. Today, the movement is conservative, evangelical, and absolutely single-minded .. https://www.thecut.com/article/marjorie-dannenfelser-abortion-roe-v-wade.html , populated overwhelmingly by people who, although they may embrace foster care, adoption, and various forms of private ministry, show no interest in pushing for public, structural support for human life once it’s left the womb. The scholar Mary Ziegler recently noted .. https://www.nbcnews.com/think/opinion/lizelle-herreras-texas-abortion-arrest-warning-rcna24639 .. that today’s anti-abortion advocates see the “strategies of earlier decades as apologetic, cowardly, and counterproductive.” During the past four years, eleven states .. https://www.nytimes.com/2022/06/09/health/abortion-bans-rape-incest.html .. have passed abortion bans that contain no exceptions for rape or incest, a previously unthinkable extreme.
In the face of all this, there has been so much squeamishness, even in the pro-choice camp: a tone that casts abortion as an unfortunate necessity; an approach to messaging which values choice but devalues abortion care itself, which emphasizes reproductive rights rather than reproductive justice. That approach has landed us here. We are not going back to the pre-Roe era, and we should not want to go back to the era that succeeded it, which was less bitter than the present but was never good enough. We should demand more, and we will have to. We will need to be full-throated and unconditional about abortion as a necessary precondition to justice and equal rights if we want even a chance of someday getting somewhere better. ?
An earlier version of this article inaccurately described aspects of the legal process concerning Latice Fisher’s case.
Published in the print edition of the July 4, 2022, issue, with the headline “The Post-Roe Era.”
Georgia Governor Seeks to Keep Distance from Trump Inquiry
"Georgia Just Criminalized Abortion. Women Who Terminate Their Pregnancies Would Receive Life in Prison. "A Missouri Lawmaker Is Trying To Stop Women From Seeking Abortions In Other States""
Lawyers for Gov. Brian Kemp argued on Thursday that he should not have to testify in the ongoing criminal investigation into election meddling. Megan Varner/Associated Press
By Richard Fausset and Danny Hakim
Aug. 25, 2022Updated 9:11 p.m. ET
ATLANTA — Gov. Brian Kemp was one of the Georgia Republican officials who declined to help Donald J. Trump overturn his 2020 election loss in the state — a decision that had him hailed as a hero in some quarters.
And yet, on Thursday, Mr. Kemp’s lawyers showed up in an Atlanta courtroom to argue that the governor should not have to help with the ongoing criminal investigation into election meddling by testifying before a special grand jury. Mr. Kemp’s legal team has accused Fani T. Willis, a Democrat and the local prosecutor leading the inquiry, of politicizing the investigation, and wants any testimony to take place after the polls close on his re-election bid in November.
In a sign of how widely her case is expanding, Ms. Willis also moved on Thursday .. https://www.politico.com/news/2022/08/25/mark-meadows-ordered-to-testify-in-fulton-county-probe-of-trump-election-overturn-efforts-00053817 .. to compel testimony from a number of additional Trump advisers, including Mark Meadows, his former chief of staff in the White House, and Sidney Powell, a lawyer who advanced the most aggressive conspiracy theories falsely claiming that the 2020 election was stolen. And Ms. Willis indicated in court filings that her investigation now encompasses “an alleged breach of elections data” in rural Coffee County, Ga., which was part of a larger effort by Trump allies to infiltrate elections systems .. shorturl.at/IMNUY .. in swing states.
In court, the lawyers for Mr. Kemp made a number of arguments as to why he should not have to comply with the subpoena at all, but they were received skeptically by Judge Robert C.I. McBurney of Fulton County Superior Court, who did not immediately make a ruling.
“The governor doesn’t think he’s beyond any reach of law, but he’s just beyond the reach of this particular subpoena,” said S. Derek Bauer, one of Mr. Kemp’s lawyers.
Mr. Kemp, who is locked in a tight race for re-election with Stacey Abrams, a Democrat, has tried to maintain a difficult balancing act since falling out of Mr. Trump’s good graces. The former president soured on Mr. Kemp in 2020 after the governor declined Mr. Trump’s request to call a special session of the Georgia Legislature so that a group of pro-Trump electors could be named in place of the legitimate ones earned by Joseph R. Biden Jr., who defeated Mr. Trump by just under 12,000 votes in the state.
Jenna Ellis, a lawyer for Mr. Trump, was scheduled to testify before the grand jury in Atlanta on Thursday. Tom Williams/Getty Images
Since then, even as his name elicited torrents of boos from the Trump faithful at rallies and Republican events, Mr. Kemp has found a way to stay alive politically. In May, he crushed Mr. Trump’s handpicked Republican primary candidate, David Perdue, the former U.S. senator, by focusing on his record of conservative policy accomplishments and economic success, and largely avoiding the topic of Mr. Trump.
But the general election fight presents its own complex series of calculations. Though polling in recent months has shown Mr. Kemp leading Ms. Abrams, she is a formidable fund-raiser hoping to ride a wave of changing demographics and fresh concerns about Republican overreach on issues like abortion.
Charles S. Bullock III, a professor of political science at the University of Georgia, said Mr. Kemp might be wary of turning off some centrist voters, but the deeper risk could be turning off Mr. Trump’s considerable base in Georgia. ----- Understand Georgia’s Trump Election Investigation Cards 5 of 5
An immediate legal threat to Trump. Fani T. Willis, the Atlanta area district attorney, has been investigating whether former President Donald J. Trump and his allies interfered with the 2020 election in Georgia. The case could be one of the most perilous legal problems for Mr. Trump. Here’s what to know:
Looking for votes. Prosecutors in Georgia opened their investigation in February 2021, just weeks after Mr. Trump made a phone call to Brad Raffensperger, Georgia’s secretary of state, and urged him to “find” enough votes to overturn the results of the election there.
What are prosecutors looking at? In addition to Mr. Trump’s call to Mr. Raffensperger, Ms. Willis has homed in on a plot by Trump allies to send fake Georgia electors to Washington and misstatements about the election results made before the state legislature by Rudolph W. Giuliani, who spearheaded efforts to keep Mr. Trump in power as his personal lawyer.
Who is under scrutiny? Mr. Giuliani has been told that he is a target of the investigation, and prosecutors have warned some state officials and pro-Trump “alternate electors” that they could be indicted. Senator Lindsey Graham, Republican of South Carolina, has been fighting efforts to force him to testify before a grand jury.
The potential charges. Experts say that Ms. Willis appears to be building a case that could target multiple defendants with charges of conspiracy to commit election fraud or racketeering-related charges for engaging in a coordinated scheme to undermine the election. ----- “He can’t afford to alienate them,” Dr. Bullock said. “I mean, right now he’s positioned pretty well, kind of like Glenn Youngkin was in Virginia,” he added, referring to that state’s governor, a Republican who kept his distance from Mr. Trump during his 2021 campaign.
“He’s not perceived as being Trump’s man,” Dr. Bullock said of Mr. Kemp. “But on the other hand, he has been very careful not to alienate Trump voters. So maybe that’s why he doesn’t want to testify now, the fear that at some later date, things he says will be perceived as negative by Trump people and they might hold it against him.”
Mr. Kemp’s team insists in its legal filings that “through delay and artificial deadlines, the D.A.’s of?ce has engineered the governor’s interaction with the investigation to reach a crescendo in the middle of an election cycle.” His lawyers have also claimed that Ms. Willis’s prosecutorial team reneged on promises and mistreated the Kemp team as they worked behind the scenes to fashion a way for Mr. Kemp to testify voluntarily.
Ms. Willis and her team have forcefully rebutted those assertions and have said that her office has given the governor ample leeway and first began negotiating with him last year, but that his lawyers have made unreasonable demands, including wanting to see questions in advance.
Amid the standoff, Ms. Abrams has apparently calculated that Mr. Kemp has committed an unforced error that allows them to remind centrist voters that Mr. Kemp, before his dramatic break with Mr. Trump, was an early and ardent adopter of Trumpism. One typical 2018 internet ad for Mr. Kemp featured a photo of Mr. Trump and a simple quote from him: “Sooooo important, get out and vote for Brian!”
Already, Ms. Abrams has seized on Mr. Kemp’s move to delay his testimony. A video she shared .. https://twitter.com/staceyabrams/status/1560431353316909062 .. last week, the day after Mr. Kemp’s lawyers filed a motion to quash the subpoena from the district attorney’s office, opened with the words, “Why isn’t Brian Kemp testifying in court?” She also told CNN .. https://twitter.com/bluestein/status/1560426599274745857 .. that Mr. Kemp “has coasted on this notion that he is an anti-Trump moderate, but we know that he has described himself as a Trump conservative.”
She added: “If he is as concerned about the state of our democracy as he would hope for people to think he is, he would show up for this incredibly important subpoena and he would provide testimony in a timely manner.”
Lawyers for Mr. Kemp argued that his subpoena should be quashed for a number of reasons. Calling the governor to testify so close to the November elections, they wrote in a court filing, “reveals, at best, disregard of an unnecessary risk to the political process, and at worst an attempt to influence the November 2022 election cycle.”
On Thursday, they argued that the subpoena should be ruled invalid based on the concept of sovereign immunity, which prohibits the state government from being sued. The chief senior district attorney of Fulton County, Donald Wakeford, pushed back, saying that it was a subpoena that was in question, not a lawsuit. “Why does sovereign immunity apply to that?” he said.
Mr. Kemp’s lawyers also raised the issue of “executive privilege,” the idea that executive branch leaders should be allowed to keep some information related to their official duties confidential.
At one point, addressing the governor’s lawyers, Judge McBurney noted that the concept of executive privilege existed neither in state statutes nor in case law. “You’re seeking to import that concept to this situation,” he said.
The special grand jury began meeting in June and is tasked with one job: looking into attempts to disrupt the lawful administration of the 2020 Georgia election. It does not have the power to return indictments but will eventually make recommendations on whether criminal prosecutions are warranted. Those recommendations could be taken up by a regular grand jury that has the power to indict suspects.
A special grand jury is meeting in Fulton County, Ga., to investigate election meddling by former President Donald J. Trump and his allies. Dustin Chambers for The New York Times
Ms. Willis’s investigation has already named at least 18 people as targets who could face criminal charges, including Rudolph W. Giuliani, Mr. Trump’s former personal attorney. More than 30 people have already come before the special grand jury; Ms. Willis has said that she is considering an array of potential charges, including conspiracy and racketeering.
On Thursday, as Governor Kemp’s legal team was at work, Jenna Ellis, one of the lawyers who advised Mr. Trump on his strategy to reject the outcome of the 2020 election, was scheduled to testify behind closed doors before the special grand jury.
The district attorney’s office has said in its legal filings that Ms. Ellis “personally authored at least two legal memoranda to former President Donald Trump and his attorneys” advising “that Vice President Mike Pence should disregard certified Electoral College votes from Georgia and other purportedly ‘contested’ states on Jan. 6, 2021.” The office called it “part of a multistate, coordinated plan by the Trump campaign to in?uence the results of the November 2020 election in Georgia and elsewhere.” Ms. Ellis’s attorney has declined to comment.
Another attorney who advised Mr. Trump, Kenneth Chesebro, filed a motion on Thursday seeking to quash a subpoena requiring his testimony, arguing that he was shielded by attorney-client privilege. Additionally, Judge McBurney on Thursday rejected an attempt by 11 of the Georgia Republicans who tried to act as Trump electors to remove Ms. Willis from handling their case.
Court records filed on Thursday show that prosecutors are also seeking testimony from Phil Waldron, a Texas bar owner and former Army colonel with a background in information warfare who appeared in December 2020 before a Georgia Senate committee that was investigating election fraud.
Richard Fausset is a correspondent based in Atlanta. He mainly writes about the American South, focusing on politics, culture, race, poverty and criminal justice. He previously worked at The Los Angeles Times, including as a foreign correspondent in Mexico City. @RichardFausset
Danny Hakim is an investigative reporter. He has been a European economics correspondent and bureau chief in Albany and Detroit. He was also a lead reporter on the team awarded the 2009 Pulitzer Prize for Breaking News. @dannyhakim • Facebook
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