Maricopa County Attorney Says Abortions Are Illegal In AZ

PHOENIX, AZ — Several days after the Supreme Court overturned Roe v. Wade, doctors in Arizona still don't know what kinds of procedures they're legally allowed to perform.

Even the state's top prosecutor, Arizona Attorney General Mark Brnovich, could not or would not provide a clear answer to Patch on whether abortion is currently illegal in Arizona. His office said that for now, the issue is up to individual county attorneys to decide.

Arizona has multiple laws on the books that predate Roe v. Wade, as well as other laws that were passed within the last year that pertain to abortion as well.

Maricopa County Attorney Rachel Mitchell told ABC 15 on Tuesday that in her interpretation, abortion is illegal in Arizona, per Arizona law 13-3603, unless it is done to save the life of the mother. This law makes it a crime for doctors to perform abortions or to administer drugs to induce abortion. Under this law, a doctor could be charged with a felony for performing an abortion and could face 2-5 years in prison, if convicted. Mitchell told ABC 15 that she would not prosecute abortions of pregnancies that were because of rape or incest, although those stipulations are not included in the law.

Dr. Cadey Harrel, Arizona State Lead for the Committee to Protect Health Care and a Tucson family physician, expressed frustration last week at the lack of information from the state about what kinds of procedures were legal to perform on pregnant women, including to save the life of the woman.

"There is no news, because the state hasn’t clarified what is legal and what is not," Harrel told Patch on Tuesday.

While Mitchell said that the law predating Roe v. Wade, and passed in Arizona prior to its statehood, is in effect now, others say that law was enjoined by Roe v. Wade and court action would be required to reinstate it.

The Arizona Attorney General's office is engaged in ongoing litigation in the Ninth Circuit federal court to weigh in on Arizona's abortion laws, Brittni Thomason, spokesperson for the Arizona Attorney General’s Office, said in a statement to Patch. The office plans to file a brief in the case next week.

Until the attorney general's office is through with a legal analysis of Arizona's abortion laws, Thomason indicated that enforcement of any laws that might be in effect would be up to individual county attorneys.

“It is unclear in the state of Arizona exactly what laws are in effect or will be in effect or will remain enjoined or will become enforceable,” said Dr. Laura Mercer, a Phoenix OB-GYN, during a media call on Friday. “It really is a waiting game as we wait for leaders in the state of Arizona to give us direction on what laws are in effect and how those laws will be interpreted."

Mercer is the chair of the Arizona section of the American College of Obstetricians and Gynecologists.

Mercer and Harrel both agreed that a lack of clarity when it comes to abortion laws in Arizona could lead to doctors waiting longer than they would have in the past to intervene and perform an abortion to save the life of a mother, potentially risking women's lives.

Laws that could impact the legality of abortion in Arizona include one passed in 1864 that bans abortion outright, except to save the life of the mother and another passed in 1901.

More recently, the Arizona Legislature passed a law that Ducey signed in March that would ban abortions after 15 weeks of pregnancy, unless to save the life of the mother. That law is set to take effect this fall. Ducey had previously told reporters that law would supersede the abortion laws on the books from more than a century ago, but whether that is true remains uncertain.

In addition to the confusion caused by the several abortion laws in Arizona, the American Civil Liberties Union of Arizona and an abortion rights group filed an emergency motion Saturday seeking to block a 2021 “personhood” law that might also be used to stop abortions in Arizona.

The ACLU is asking a federal judge to block enforcement of the law, which says the state will interpret all laws to confer the rights of people on unborn children, subject to the Constitution and U.S. Supreme Court rulings.

The Associated Press contributed reporting.