Ideas suffer from flippancy

Fairfax County District Attorney Steve Descano

by Jim McCarthy

Skilled (perhaps even unskilled) polemicists and rhetoricians can present information in a seemingly unbiased way, even intentionally distorting it. A recent Bacon’s Rebellion article lamented Fairfax County Attorney Steve Descano’s assertion in a New York Times editorial that he “would never sue a woman for having an abortion”. The blog post is further placed in quotes, “no matter what the law in Virginia says.” The two quoted selections are, in fact, words from the editorial.

We owe it to the iconic Paul Harvey to be on his guard to hear the rest of the story.

The headline of the original ep-ed column is, in itself, political convenience, a pure campaign bombshell: “My Governor May Pass Bad Abortion Laws, But I Won’t Enforce Them.” Anyone who agrees that the governor of Virginia can pass an abortion law — good or bad — has failed in civics. Don’t judge the content of an article by a headline, which was probably written by the journal’s editor. As for the argument put forward by Descanofollow the Bacon’s Rebellion hyperlink from the publication to the editorial. There you will see the full context of the statement:

…in Virginia today, women suspected of terminating a pregnancy without the help of a certified medical professional can face felony charges if they miscarry.

So when the court’s draft decision reversing Roe v. Wade disclosed earlier this month I pledged never to sue a woman for making her own health care decisions. This means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of causing one.

In context, the full and comprehensive statement of the CA presents a different scope of the matter than that communicated to Bacon’s Rebellion readers.

Currently, Virginia’s abortion laws are generally consistent with Roe and her offspring. Thus, even if Roe were to be overturned, a woman’s abortion suit would be limited to the set of factors cited by the CA, that is, an abortion not assisted by a certified medical professional. To decline to sue in this case would be a decision involving a discretionary power to prosecute which is not the same as annulment as affirmed in the Bacon’s Rebellion article.

Revocation of law is generally understood to apply to state action as a right to refuse to comply with federal law, often citing reservation of powers in the Ninth and Tenth Amendments to the Constitution . This was the legal argument for the secession of the Confederate States. Historically with respect to state/federal jurisprudence, prior to Virginia’s secessionist vote (April 17, 1861), Virginia challenged SCOTUS’s authority (and lost) to interpret federal law or prevent federal courts from interpreting state court decisions and jurisdiction in cases arising in 1813, 1816, and 1821.

To prosecute or not is the equation of prosecutorial discretion and is exercised very often, especially in plea bargains. While CA oaths and state law may seem at odds when it comes to exercising such discretion, a CA (or the General Assembly for that matter) is unlikely to waive to capacity. Nevertheless, if abortions were absolutely prohibited in Virginia, every CA could still refuse to prosecute a woman for having an abortion.

In theory, the discretion could be exercised when it was deemed to be a life-saving intervention for the mother or the unborn child.

There is another collateral behavior known as selective prosecution when a public official refuses to enforce a law. An example might be the traffic stop of a clearly impaired peace officer who was allowed to proceed without a citation. From time to time, other instances of selective enforcement arise that more directly violate the rule of law and pose a threat to others.

The Bacon’s Rebellion The article posed the hypothetical: “What if, to take an equally controversial example, CAs in conservative rural counties refuse to pursue gun control laws?”

The January 20, 2020 issue of The Washington Examiner carried the statement of a VA (Grayson County) sheriff: “If the bills pass as proposed, they will not be enforced; they are unconstitutional. We have sworn to uphold the Constitution of the United States and the Constitution of Virginia, and that is what we will do.

Grayson is one of 100 Virginia jurisdictions that have declared themselves “Second Amendment sanctuaries.” At an August 2020 meeting of the Grayson BOS, according to public records, the sheriff spoke in favor of the resolution that had been drafted by the Virginia Citizens Defense League. In this way, the sheriff-elect encouraged elected BOS members to join in opposition to state law. In the absence of criminal investigation by law enforcement, prosecutorial discretion is moot.

This behavior and actions leave little leeway to conclude otherwise that an act of nullification of the law was intended. There may be a small distinction in mind between the three principles, but they require greater clarity in their use and publication, even when it is only an opinion protected by freedom of expression. Shouting “anarchy” on a crowded blog should be backed up by the rest of the story as Paul Harvey demanded.

To confuse or confuse overruling the law with prosecutorial discretion and selective prosecution falls into the heap of misinformation and misdirection so often condemned by reporters, journalists, media personalities and even bloggers.

Casuality in the use of terms (including buzzwords such as awake) is dangerous for readers and listeners, not to mention the substance of any discussion. Ideas should not simply become victims in discourse through casual use.

Jim McCarthy is a former lawyer from New York who now lives in Virginia.

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