Jun 13, 2022 - Politics

Enforcing abortion restrictions in a post-Roe Arizona

Illustration of a giant pencil drawing a line in front of a lone woman looking down at the line.
Illustration: Aïda Amer/Axios

If the U.S. Supreme Court overturns Roe v. Wade, abortion providers and prosecutors in Arizona are unclear whether some procedures will still be permitted or whether they will be almost completely banned.

The big picture: Arizona still has an unenforced pre-Roe law on the books that bans all abortions except those necessary to save the life of the mother.

Yes, but: In April of this year, Gov. Doug Ducey signed a law banning abortions after 15 weeks of pregnancy, which is modeled after the Mississippi law that led SCOTUS to take up the issue of abortion rights in the first place.

  • Ducey's office insists the 15-week ban will be the law of the land, and the pre-Roe ban that predates statehood won't take effect.
  • Others, such as the Center for Arizona Policy, a social conservative advocacy organization that has been the driving force behind most anti-abortion rights legislation at the Capitol for years, believe the old law would become enforceable.
  • GOP lawmakers included a provision in the 15-week ban stipulating that the new law doesn't repeal the pre-Roe prohibition.

The other side: Planned Parenthood of Arizona is uncertain about which law the state will enforce in the event that the Supreme Court reverses the 1973 Roe decision.

  • Brittany Fonteno, president and CEO of the group, told Axios that the courts will likely have to step in and determine which of the two conflicting restrictions goes into effect.
  • "I think it's incredibly concerning and I think that anytime there's a question about what people's rights are is a period of purgatory that we never wanted to be in," Fonteno said.
  • Fonteno said their legal counsel is looking at various scenarios that could unfold in the wake of the Supreme Court's ruling, but the organization isn't ready to share its conclusions yet.

Of note: If the pre-Roe ban goes into effect, it would be illegal for people to perform abortions. But last year the legislature repealed a part of the law making it a felony for women to seek or obtain them.

What they're saying: "Once the U.S. Supreme Court provides new clarity or guidelines, we will commence a formal legal analysis for Arizona," Attorney General Mark Brnovich's spokeswoman told Axios.

  • The prosecutors whose job it will be to enforce the law in a post-Roe Arizona aren't sure which prohibition will go into effect. Many will likely look to Brnovich for guidance, but his office said it would be "speculative and premature" to comment until the high court issues its ruling.

Maricopa County Attorney Rachel Mitchell, a Republican who was appointed in April by the Maricopa County Board of Supervisors, said more guidance is needed to determine which law will be enforceable.

  • "There are many issues to be considered as to what will be the prevailing law in Arizona. I would look to the courts, the legislature, and the voters to make these decisions," Mitchell said in a statement provided to Axios.

Though Mitchell will be county attorney when the court issues its opinion on Dobbs v. Jackson Women's Health Organization, the case from the leaked opinion that would overturn Roe, she might not be in the job for long.

  • She faces Gina Godbehere in the Republican primary on Aug. 2, and the GOP nominee will face Democrat Julie Gunnigle in November.
  • Godbehere took a similar approach as Mitchell. Campaign consultant Chad Willems said it’s for others to determine which law is operative, and that if the courts make a decision on which law should be enforced, she’ll abide by that decision.

Meanwhile: For Gunnigle, the lone Democrat in the race, it's sort of a moot point which law goes into effect because she said she won't enforce either of them.

  • Still, she believes the near-total ban would go into effect if Roe were overturned, campaign spokesperson Dawn Penich-Thacker told Axios.

Reality check: Regardless of whether Gunnigle or other prosecutors are willing to enforce a ban, Fonteno said, Planned Parenthood of Arizona won't provide abortions at all if the courts conclude that they’re illegal in Arizona.

What's next: Planned Parenthood developed a ​​patient navigator program that will assist women in getting abortions in other states if Arizona's pre-Roe ban goes into effect.

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