1864 Arizona law to send abortion providers to prison may apply, county prosecutor says

  • In US
  • 2022-06-29 01:23:34Z
  • By AZCentral | The Arizona Republic

A 158-year-old law that calls for mandatory prison time for abortion providers could be in effect in Maricopa County, Maricopa County Attorney Rachel Mitchell said.

An injunction from enforcing the law placed by the Arizona Court of Appeals in 1973 after the landmark Roe v. Wade ruling covered the Arizona Attorney General's Office and Pima County, she said.

"The issue is whether it covers the other 14 counties. That's going to have to be addressed by the court," Mitchell said during a brief news conference about abortion laws on Tuesday. "If that's how the court rules - that the injunction does not cover Maricopa County - then yes, it would be in effect here."

Mitchell said that a new law signed this year by Gov. Doug Ducey that bans abortions after 15 weeks of pregnancy, with no exception for survivors of rape or incest, would go into effect 90 days after the end of the legislative session.

Her statements didn't go far in clearing up public confusion over the legality of abortion since the June 24 release of a U.S. Supreme Court opinion that overturned Roe v. Wade, allowing states to set their own abortion policies.

Roe v. Wade overturned: What is the law for abortions in Arizona now?

Eight of the nine abortion clinics in Arizona halted abortion services after the June 24 ruling out of fear of prosecution over the old law and one that passed last year that grants fetuses the same rights as other children.

The pre-statehood law hasn't yet been challenged in any court, so abortion providers and their lawyers still have no clear answers.

Asked what she would tell abortion providers, Mitchell seemed to suggest caution: "I can't give them advice, obviously. What I would say is there is a law on the books that says abortion is illegal."

Looking back: Abortion ruling may lead to reappraisal of Justice Sandra Day O'Connor

Some states are moving to ban abortion, while those with laws on the books that make abortion legal expect to see a flood of patients from other states.

But the legal status of abortion in Arizona hasn't been clear since the bombshell ruling.

The first territorial Legislature in Arizona codified a ban on providing abortions when it adopted its first package of laws in 1864. The wording of the law, which mandates a two- to five-year prison sentence for anyone helping a woman get an abortion, remains on the books as ARS 13-3603.

Maricopa County Attorney Rachel Mitchell answers reporters
Maricopa County Attorney Rachel Mitchell answers reporters' questions on abortion laws in Maricopa County during a news conference on June 28, 2022.  

A companion law from the territorial days that called for a minimum one-year sentence for a woman seeking an abortion was repealed only last year in the law giving rights to fetuses. It also banned abortions sought because of a fetus' "genetic abnormalities.

That law is now as much of a threat as the pre-statehood law, according to reproductive rights groups. The law calls for an interpretation that would allow prosecutors to charge people with assault or child abuse for providing an abortion. The rights groups, along with two abortion doctors, asked a federal judge on June 27 for an injunction blocking that part of the law from taking effect.

Mitchell said no one has submitted a potential case for prosecution to her yet.

"I'm not looking for a novel way to charge these cases," she said. "Those are the law that I'm going to look at to address this issue."

She understands that people feel strongly about the issue, she added.

"My role is to enforce the law and to look at cases as they come to me," she said.

In a statement she released before the news conference, Mitchell said she expects legal challenges to the law.

"This important legal review will take time and any such rulings will guide my decision-making on these matters," she said.

Mitchell told Channel 12 News (KPNX-TV) back in May that, given her experience in prosecuting sex crimes, she would not prosecute anyone for providing an abortion to survivors of rape or incest and would use prosecutorial discretion in those cases.

She would not use her power to "wholesale" stop prosecuting all aspects of a law, she said.

Mitchell, a veteran deputy county attorney, drew national attention in 2018 at the U.S. Senate's judicial nomination hearings for now-Supreme Court Justice Brent Kavanaugh, where she grilled Christine Blasey Ford over Ford's sexual assault allegation against Kavanaugh.

Mitchell was appointed to the office after the April death of Allister Adel, who was elected in 2020 as the first woman to serve in the position.

She's running to stay in the office. She is challenged by Gina Godbehere in the Aug. 2 Republican primary.

Mitchell's position on the potential prosecution of abortion providers stands in contrast to that of Julie Gunnigle, the Democrat running unopposed in her primary.

Gunnigle, who narrowly lost to Adel in the 2020 election, has said she will not prosecute anyone for an abortion-related crime either under the pre-statehood law or the new 15-week ban.

The state Attorney General's Office was ordered by a federal judge last week to conduct a review of the Supreme Court decision and expects that to be completed next week.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.

Subscribe to azcentral.com today.

This article originally appeared on Arizona Republic: 1864 Arizona law to send abortion providers to prison may apply now


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