Dem
55
Ties
1
GOP
44
One of the stories flying under the radar in the wake of last week's election is the big gains in state attorneys general seats by Democrats. We touched on this on Monday and we'd like to do a deeper dive on the implications of what will no doubt be radically different approaches to this job. And note that most of the flips came in states that also elected a Democratic governor, so that partnership will include a shift in priorities and quite probably a return to a more traditional, and less ideological and politically retributive, use of those resources. That's very good news for the people living in these states.
Let's look at some of the places where there will likely be the biggest impacts:
Reproductive Rights: This is the big one. Many Republican state attorneys general have been very aggressive in prosecuting or supporting the prosecution of pregnant women and doctors they claim have run afoul of draconian abortion bans. Not only that, but they've also initiated lawsuits challenging the FDA's approval of mifepristone and pursued out-of-state doctors and organizations that sell abortion medication online.
Texas: Soon-to-be-former AG and serial philanderer Ken Paxton tried to burnish his "pro-life" and "Christian" credentials by criminalizing pregnancy and aggressively enforcing Texas' near-total abortion ban, SB 8. Among his targets were Dr. Maggie Carpenter, a New York doctor and founder of Abortion Access, whom he sued for selling abortion medication to patients who live in Texas. Incoming Democratic AG Nathan Johnson has already said that he won't waste Texas' resources on such overt political endeavors that have no legal basis: "I will not pursue the judicially absurd position that Texas law has extra territorial effect. I can honor other states' shield laws."
Texas is also a plaintiff in a lawsuit challenging the FDA's approval of mifepristone, at least so far. Johnson is "reviewing" all such cases and will determine if Texas' continued involvement is appropriate. If Texas withdraws, Florida would be the only remaining plaintiff, which would call into question whether Texas is the right venue for the case. Paxton also intervened in a lawsuit against Planned Parenthood for billions of dollars on dubious claims of improperly collecting Medicaid payments. Planned Parenthood has argued that the court explicitly permitted the group to continue to collect federal payments while the lawsuit is ongoing. Johnson has hinted that Texas will no longer participate in that case. That said, the Trump administration is seeking to intervene in the case, which is set for trial early next year.
Johnson has also said that he will strike down "abortion trafficking" ordinances at the local level. "If some county thinks they're going to pass an ordinance that says you cannot drive through on our roads on your way to New Mexico to receive abortion services, that's not going to fly," Johnson said.
Aside from that, Johnson's office can also issue clear guidelines to physicians regarding exceptions to the abortion ban and doctors' rights regarding medical discretion, so that patients won't be left to bleed out in parking lots before they can receive the care they need. Abortion bans have caused mortality rates for pregnant women to skyrocket, especially in Texas, whose Maternal Mortality and Morbidity Review board has refused to release any statistics about the ban's effect. That will also change, as Governor-elect Gina Hinojosa (D) appoints people to that board.
Finally, Johnson can investigate and enforce regulations against Crisis Pregnancy Centers, which Texas has showered with taxpayer money and which often masquerade as medical clinics and mislead women about reproductive care options. He can also investigate law enforcement that are arresting pregnant women in hospitals after experiencing miscarriages or for bringing bogus charges like "abuse of a corpse."
Kansas: Soon-to-be-former Attorney General Kris Kobach (R) spent enormous resources targeting clinics and defending anti-abortion laws even after the state Supreme Court held that reproductive care, including abortion, is a fundamental right under the state constitution. Now, Kansas will have an AG in Democrat Chris Mann who will respect the Court's decision and work to get those laws off the books. Kobach was also involved in lawsuits around telemedicine and the provision of medication abortion. Those will likely also be dropped.
Georgia: Georgia also has a draconian abortion ban, the so-called Heartbeat Bill, that essentially bans abortion at 6 weeks. Like the Texas AG, the incoming Democratic AG, Tanya Miller, could issue opinions regarding exceptions to the ban and when doctors can use their medical judgment in providing abortion care. The new Democratic Governor, Keisha Lance Bottoms, could also take a page from Arizona Governor Katie Hobbs (D) and issue an executive order stripping any power from county prosecutors to pursue abortion-related cases and putting that power exclusively in the Democratic AG's hands.
ICE: State AGs are limited in what they can do in this area, as we've seen in Minnesota and California. However, when the federal DoJ fails to do anything to enforce civil liberties and rein in ICE abuses, the state AGs can fill some of that void by initiating investigations and assisting county DAs in prosecuting offenders. And ICE officers who commit crimes will no longer find refuge in Texas to escape accountability. Any extradition requests will be honored. The AGs can also investigate detention centers for violations of state laws, especially inhumane treatment, denial of medical care, and wrongful death.
Corporate Accountability: In New York AG Letitia James (D), we've seen what an attorney general who is committed to enforcing the law against corporations based in her state can accomplish. Look for these Democratic attorneys general to also start holding corporations accountable for their misdeeds. Elon Musk understood the implications of a Texas state government controlled by Democrats when he poured almost $500 million into the election. The reason he moved to Texas is that he didn't like California's efforts to rein in his companies. Well, now those companies—Tesla, SpaceX, AIx, etc.—are going to face the same kind of scrutiny in Texas and won't be given the free pass to skirt regulations, pollute the environment and violate labor laws like they were before under a more compliant Republican government.
Protecting the Public Interest: Democratic AGs can also join lawsuits to protect the environment against federal efforts to kneecap the EPA or water down clean air and water rules as well as fight efforts to sell off or degrade public lands. They can fight general Trump corruption and the misuse of public funds that impact state residents. They can ensure voting rights are protected and be instrumental in drafting regulations around AI and data centers. As Sean Rankin, president of the Democratic Attorneys General Association, notes, these offices will now be "managed fairly." For Texas in particular, "it will not be managed politically. It will do its job and it will take care of the constituents in Texas. And that's a change."
In short, the rule of law is once again reasserting itself across much of the land. (L)