Oct 6, 2022 - Politics

Debate brewing in Arizona over whether women can be prosecuted for abortions

Illustration of a silhouette of a pregnant person with prison bars shown in their shape

Illustration: Annelise Capossela/Axios

Some attorneys in Arizona are skeptical that women who use medication or other means to terminate their pregnancies can be prosecuted under the state's pre-Roe ban on most abortions.

Yes, but: That doesn't mean someone won't try to prosecute a woman who administers her own abortion.

State of play: It's unclear which of two conflicting laws is enforceable and in effect — the territorial-era law banning almost all abortions or a prohibition on them after 15 weeks of pregnancy that the legislature passed this year.

Context: Julie Gunnigle, the Democratic nominee for Maricopa County attorney, noted on Twitter last week that the territorial-era law "does not have an immunity provision for patients who self-administer."

  • The pre-Roe ban makes it a felony for someone to perform an abortion or to procure a pregnant woman "to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever" to cause a miscarriage.
  • The law was enjoined in 1973 as a result of Roe v. Wade, but a judge lifted that injunction last month.

Of note: Arizona had a separate pre-Roe law on the books that criminalized women who sought or obtained abortions. The legislature repealed that law last year.

  • Now, only the law making it a crime for someone to perform the procedure remains.

The big picture: Rick Romley, a Republican who served as Maricopa County attorney for more than 16 years, said it's theoretically possible that prosecutors could charge a woman for giving herself an abortion but said he believes they would have a difficult time in court.

  • Stefanie Lindquist, the executive director of ASU's Center for Constitutional Design, was also doubtful that such a charge would hold up in court.
  • Lindquist said the statute implies two people: the one who performs the abortion and the one who receives it.

What they're saying: "The common-sense interpretation of the statute is that the pregnant woman is a separate individual from the person who's administrating the abortion medication and what have you, and therefore would not be prosecutable under the statute," Lindquist tells Axios when asked about whether a woman could be charged for giving herself an abortion.

  • Nonetheless, the theoretical possibility could have a chilling effect that would dissuade women from doing so, she says.

Meanwhile: Maricopa County Attorney Rachel Mitchell, a Republican who was appointed to the position in April and faces Gunnigle in the general election, tells Axios that based on the 2021 repeal of the statute that explicitly penalized women for getting abortions, she doesn't believe prosecuting a woman in that scenario would honor the intent of the law.

  • A spokesperson for the state's attorney general's office declined to comment but noted that the legislature repealed the law making it a crime for a woman to get an abortion.

Catch up quick: Planned Parenthood Arizona is challenging a Pima County judge's decision to lift the 1973 injunction against the pre-Roe ban.

  • The Arizona Medical Association and a Valley doctor are also suing the state to determine which law is now in effect.
  • Mitchell has said she won't prosecute any cases under either abortion ban until the courts clarify which should be enforced.

What's next: Gov. Doug Ducey's office had previously insisted that the 15-week ban would be the law of the land.

  • However, Ducey told reporters on Tuesday that he hadn't said that and said the issue is now up to the courts.

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