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Abortion Could Be Criminalized in Arizona if Roe v. Wade Gets Overturned

The state’s pre-Roe abortion ban includes mandatory prison time for people who provide or obtain abortions. Candidates for top prosecutor in Maricopa County differ on whether they would prosecute such cases.

Incumbent Maricopa County Attorney Allister Adel (left) and challenger Julie Gunnigle (right).(Photos via Maricopa County Democratic Party and Julie Gunnigle)

Justice Ruth Bader Ginsburg’s death has reignited fears about what could happen if Roe v. Wade, the landmark decision that protects a woman’s right to have an abortion, gets overturned. Such a reversal could have an enormous impact in states like Arizona, where a pre-Roe abortion ban was never repealed and could be enforced. And local district attorney’s offices would suddenly find themselves in the position of shaping the state of reproductive rights in their jurisdictions.

“Roe v. Wade being overturned is a very real threat,” said Eloisa Lopez, executive director of the Abortion Fund of Arizona. “It’s an even more frightening threat to Arizona specifically because we do have a law pre-Roe v. Wade that would criminalize abortion, criminalize anyone performing an abortion, criminalize people seeking abortions, and criminalize certain forms of birth control.”

For years, President Donald Trump has said he wants to appoint Supreme Court justices who would vote to overturn Roe. Now he has nominated federal appeals court Judge Amy Coney Barrett, who is widely believed to be against abortion, to replace Ginsburg. In 2006, she signed a statement in a newspaper advertisement opposing “abortion on demand” and calling for “an end to the barbaric legacy of Roe v. Wade.” Her confirmation would push the court to the right for a generation to come and entrench a 6-3 conservative majority on the nation’s highest court. 

With an abortion case, Food and Drug Administration v. American College of Obstetricians and Gynecologists, already before the Court, it is possible Roe could be overturned or at least weakened even further in the near future. That could allow states to dictate the legality of abortion—and Arizona is far from the only state with an abortion ban on the books. Other statescould criminalize abortion overnight if Roe were to fall.

Under Arizona’s pre-Roe ban, anyone who provides a woman with an abortion faces a mandatory minimum sentence of two years in prison but could also receive up to five years in prison. Any woman who gets an abortion will be sentenced to at least one year in prison but could face up to five years as well. And even advertising abortion services is a misdemeanor under the pre-Roe ban.

“What’s going to happen on an extreme level is every miscarriage that happens naturally on its own is going to get scrutinized,” said Lopez. “It will get questioned. Did you abort your pregnancy?”

The Maricopa County Attorney’s Office may play an outsized role in deciding whether abortion is criminalized in the state. It is the third-largest prosecuting agency in the country, overseeing a county that includes Phoenix and 4.5 million of the state’s 7 million residents. 

One of the two candidates running for Maricopa County attorney, Democrat Julie Gunnigle, has vowed not to prosecute people for seeking abortion. The other candidate, Republican incumbent Allister Adel, said in March that she has “an ethical and legal obligation to enforce the law” when asked if she would prosecute people for seeking or providing abortions. More recently, on an Oct. 7 appearance on KJZZ, Phoenix’s NPR affiliate, Adel said “Your duty as a top prosecutor is to enforce the laws that are on the books whether you agree with them or not.”

From the beginning of her campaign, Gunnigle has committed to declining to prosecute abortion. Meanwhile, on at least three separate occasions, Adel has dismissed the idea that her office could be asked to prosecute women for obtaining abortions as farfetched, and essentially stated that her hands are tied and she’d have to prosecute abortion.

During an Oct. 10 appearance on KTAR, a local radio show, Adel was asked by Gunnigle whether she would prosecute women for seeking or obtaining an abortion if Roe were overturned. “During my more than seven years as a prosecutor and my time leading the office now, we have never prosecuted a woman for an abortion,” Adel said, ignoring that she has never been asked to because Roe is still in effect. “As a prosecutor, you can’t pick and choose what cases you prosecute, but if law enforcement doesn’t submit the cases to you, they’re not investigated.”

But county attorneys do have prosecutorial discretion, which means they can decline to prosecute at their choosing.

On KTAR, Gunnigle said that Adel had not answered the question, prompting Adel to audibly scoff and say, “I would love to see where there’s a case out there right now if Roe v. Wade were to fall. Certainly we would have that conversation in a sensible manner as a community, but to speculate is simply irresponsible.”

But when contacted by The Appeal for this article, Lorna Romero, Adel’s campaign spokesperson, articulated a different position. “In the rare event that Roe v. Wade is overturned, Allister will not support any law that criminalizes a woman for their health care choices,” Romero said in a statement emailed to The Appeal.

Asked whether that meant Adel would use her discretion to decline to prosecute cases that criminalize women for seeking abortions or birth control, Romero said, “She will not prosecute a woman for their health care decisions.”

Romero did not answer questions about when and why Adel changed her mind on this issue. Instead, she said only, “the information I sent you yesterday provides clarity about her position on this hypothetical scenario.”

“The day Roe v. Wade falls, Arizona women will face felony charges for their personal healthcare decisions,” Gunnigle said in a statement emailed to The Appeal. “We know that this decision will lead to a criminal justice system that is incredibly intrusive and plays politics with the lives of women rather than giving them the dignity and bodily autonomy they deserve. I will continue working to uphold all women’s reproductive rights in our community.”

Asked about Adel’s apparent change of heart, Gunnigle’s campaign manager, Tom Williams, said, “Allister Adel will say and do anything to keep her appointed seat. No one knows where she stands on any issue because she’s constantly backtracking, stumbling over her words, and lying.”

Arizona already has some of the strictest abortion laws in the country. Besides the pre-Roe ban, Arizona bans the use of telemedicine to administer medical abortions, only allows physicians to administer abortions, and requires women seeking abortions to wait 24 hours between the initial appointment and the abortion. Prohibiting other healthcare providers, like physicians assistants, from administering abortions reduces the number of people available to provide abortions in the state, and banning telemedicine requires women to travel long distances to one of the handful of remaining clinics that provide abortions. 

Together, these restrictions make it extremely difficult for many women in Arizona to obtain an abortion. “If you live in rural Arizona, you have to travel elsewhere to obtain an abortion,” said Lola Bovell, executive director of Planned Parenthood Advocates of Arizona. “Then you have a 24-hour waiting period. That’s a lot of travel time, and you have to take off work, stay at hotels, pay for food and travel. It creates this additional barrier that’s absolutely unnecessary.”

Polling shows that a majority of voters in battleground states like Arizona reject abortion bans and support access to reproductive healthcare. And an even more recent poll from Data for Progress and The Justice Collaborative Institute shows that a bipartisan majority of Maricopa County voters say they are more likely to vote for a county attorney who pledges not to prosecute women for seeking abortions if Roe were overturned. (The Justice Collaborative Institute and The Appeal are both independent projects of The Justice Collaborative.)

“With Roe on the line, we know that Maricopa County needs a county attorney that will defend against ideological attacks on abortion,” said Caroline Mello Roberson, NARAL’s Southwest regional director. “If Roe v. Wade falls, Arizonans could see abortion criminalized in their state overnight.”