Stop Letting Politicians Trick You About Abortion

by Meg O’Connor

Arizona Attorney General Mark Brnovich is fighting to make abortion illegal in Arizona—even though he claimed two months ago that he had already made it illegal. In 1864, Arizona outlawed providing abortions except to save the life of the pregnant person, but that law has been blocked since 1973 by a state judicial order. Last month, with Roe v. Wade overturned, Brnovich filed to lift that injunction—and on Friday his representatives tried to convince a judge to reinstate that near-total abortion ban from 158 years ago.

It’s interesting that Brnovich is fighting in court to get the 1864 law reinstated, given that he falsely claimed on June 29 the law was “back in effect.” Why is he sending his cronies to court to argue for a law that he—and many reporters—unilaterally declared was the law of the land in June? Could it be that he lied?

Yes. Brnovich, who is pro-life, had clear reason to do so, since any confusion anti-abortion politicians and activists can drum up about abortion laws around the country means fewer people will get them. But plenty of journalists fell for the AG’s tactics over the last few months and shared his statement as if it were fact, without clarifying that it was not true. Confusion and misinformation about the legality of abortion was so pervasive that many healthcare clinics stopped providing abortions out of concern that providers could be charged with crimes or lose their licenses.

Arizona isn’t the only state stuck in this situation. In at least 16 states, abortion laws remain tangled in court proceedings, leading to confusing flurries of judicial orders, stays, and injunctions. In some cases, politicians seem to be overstating their hands. In Kentucky, for example, a state appeals court temporarily allowed a pre-Roe “trigger ban” to take effect while a lawsuit over the law proceeds. That legal case remains open, but Republican Attorney General Daniel Cameron has declared that he “ENDED abortion in the Commonwealth of Kentucky.”

In North Dakota, a 2007 “trigger law” states that if the Supreme Court invalidates Roe, abortion will become illegal in the state 30 days later. On June 28, North Dakota’s Republican attorney general, Drew Wrigley, announced that the countdown had begun and abortions would be outlawed on July 28. But a judge later ruled that Wrigley was incorrect. Since the Court did not transmit its formal ruling in Dobbs v. Jackson Women’s Health Organization until July 26, the state’s 30-day countdown could not have begun until then. As a result, abortion is still legal until August 26.

In Arizona, some providers recognized that Brnovich, the attorney general, was lying and resumed services. But the intentional chaos has already hurt patients seeking care. Clinics in California and New Mexico say they have seen an influx of patients from Arizona. A 21-year-old woman who was 26 weeks pregnant was told her pregnancy was not viable—but she was not allowed to get care to help end the pregnancy in Arizona. The woman was left to choose between spending tens of thousands of dollars to end her pregnancy in another state or remaining pregnant with her nonviable fetus until she miscarries or gives birth.

Pima County Superior Court Judge Kellie Johnson will make a decision on Arizona’s 1864 law on or after September 19, meaning abortion will remain legal until the point of “viability” for nearly another month. A ban on abortions after 15 weeks will go into effect in the state on September 24. Arizona advocates were concerned after Roe fell that the state’s so-called “fetal personhood” law could be used to criminalize people who provide or obtain abortions, but a judge blocked that aspect of the law last month. No new laws restricting abortion in Arizona have been passed or triggered into effect since Roe was overturned.

And the near-total ban Brnovich claimed was “back in effect” two months ago remains blocked by that 1973 Arizona Court of Appeals injunction. This is why the AG’s office is fighting in court to get it reinstated. When The Appeal asked in Brnovich’s office in July how the law could be both “back in effect” and enjoined, his office never responded. The AG’s office has also spread confusion by claiming the injunction only applies to one county. The ruling applies statewide. Brnovich didn’t respond to our questions about that either.

Not to be outdone, Maricopa County Attorney Rachel Mitchell—the district attorney for the third largest prosecuting agency in the country—has also incorrectly said the injunction doesn’t apply to her. Mitchell, whose jurisdiction includes Phoenix and 4.5 million of Arizona’s 7 million residents, told ABC15 that the injunction “specifically pertains to the attorney general’s office and the Pima County attorney’s office. It doesn’t pertain to every county attorney.”

Two prominent local news outlets published Mitchell’s erroneous claims without bothering to point out that the injunction itself contradicts her.

Mitchell didn’t respond when The Appeal asked her last month why she thinks the injunction doesn’t apply to her, but it’s concerning that one of the state’s top law enforcers—who has already said she intends to file abortion-related charges—doesn’t think the law applies to her.

It’s highly unlikely that Brnovich and Mitchell, two trained attorneys, are simply confused about what a “judicial injunction” is or how the state court of appeals works. The simplest explanation is that they are lying for party gain: While the Dobbs decision was a massive victory for anti-abortion zealots across the U.S., the ruling did not actually outlaw abortion, and even in many red states, it is still possible to get an abortion.

In some cases, abortion may become illegal in a matter of days or weeks, but that hardly matters—any confusion sown over abortion laws, even for a few days, could mean someone is forced into parenthood, harmed permanently by a traumatic childbirth, or killed. The stakes for getting reporting on abortion right are very high, but it costs nothing to call out politicians on their BS.

ICYMI — from The Appeal

We’ll be closed for our summer break next week. We’ll see you again when we’re back in September. Until then, you can catch up on these very lighthearted and fun beach reads from The Appeal.

A​​ federal monitor issued a damning condemnation of substandard healthcare in Illinois prisons. As Elizabeth Weill-Greenberg reports, the monitor reviewed 25 deaths, concluding that some were “allowed to deteriorate without intervention.”

San Francisco District Attorney Brooke Jenkins has “moved quickly to abandon and undo Boudin’s most impactful reforms,” Rachel Marshall, former San Francisco District Attorney Chesa Boudin’s communications director and policy advisor, writes for The Appeal.

Caleb Brennan writes about the expansion of “assisted outpatient treatment”—or AOT—which usually entails a compulsory regimen of psychiatric medication.

Heather Tirado Gilligan looks at a program to stop gun violence without the use of police.

Elizabeth Weill-Greenberg reports that Legionella bacteria have been found in the water at 12 Illinois prisons since testing began in February.

Incarcerated writer and podcast host Phillip A. Jones writes on the decline of rehabilitative programs in prisons and the myth of our so-called “corrections” system.

Daniel Moritz-Rabson reports on mental health units in Texas prisons, which detained people describe as a shadowy purgatory, where they sit in their cells for days and weeks on end without treatment, showers, or recreation time.

That’s all for this week. As always, feel free to leave us some feedback, and if you want to invest in the future of The Appeal, please donate here.