Without Roe, Prosecutors Will Be The Abortion Police

by Meg O’Connor

In a few weeks, the nation’s highest court may overturn the landmark ruling that legalized abortion, paving the way for over a dozen states to immediately criminalize abortion. According to a leaked opinion, the U.S. Supreme Court’s conservative majority is poised to overturn Roe v. Wade.

This means that prosecutors across the country could soon be tasked with enforcing laws that require people to reproduce against their will.

Some district attorneys have already pledged not to prosecute abortion cases. But in Arizona, the impending Supreme Court decision has significantly raised the stakes in the race for the top prosecutor role in Maricopa County, home to Phoenix and 4.5 million residents. It’s an extremely powerful position, as Maricopa is the fourth most populated county in the country.

The current county attorney, Rachel Mitchell, is most well known for her highly-criticized questioning of then-Judge Kavanaugh and Christine Blasey Ford, during his Senate confirmation hearings in 2018. Mitchell has said she will enforce Arizona’s many anti-abortion statutes if Roe falls. Her challenger, Julie Gunnigle, has said the opposite. Gunnigle, the lone Democrat in the race, told The Appeal that if elected in November, she will exercise prosecutorial discretion and decline to prosecute people who provide or obtain abortions.

Arizona has several anti-abortion laws that could be enforced if Roe falls. One, a 15-week ban which will be effective this September, states that any doctor who performs an abortion after 15 weeks can be prosecuted for committing a Class 6 felony and can have their medical license suspended or revoked.

The state also has a pre-Roe abortion ban on the books that dates back to 1864 and requires two years mandatory prison time for anyone who provides an abortion (except in cases of medical emergencies). While that ban is currently enjoined and cannot immediately go into effect— a court would need to lift the injunction for it to be enforceable, according to the CEO of Planned Parenthood of Arizona—its existence threatens the long-term safety and legality of abortions in Arizona.

When asked by local media if she would prosecute abortions if Roe falls, Mitchell has repeatedly misstated that Arizona law only criminalizes providers. Last year, the governor signed a sweeping “fetal personhood” law that could give prosecutors the ability to charge people who obtain abortions.

The law gives “an unborn child at every stage of development all rights, privileges, and immunities available to other persons, citizens, and residents” of Arizona. Such a law means that without Roe, prosecutors can theoretically charge abortions as anything from civil-rights violations to homicides, given that a fetus at any stage of development in Arizona is now legally considered a “person.”

Mitchell, a “pro-life” conservative who supports the death penalty, told The Appeal she will “follow the law” when asked whether she will prosecute people who provide or obtain abortions if Roe falls. Mitchell did not respond when asked if she would use the fetal personhood law to prosecute people who provide or obtain abortions.

Six of Arizona’s nine abortion clinics are in Maricopa County. Two are in Pima County, where the county attorney, Laura Conover, said earlier this month that her office will “do everything in our power to ensure that no person seeking or assisting in an abortion will spend a night in jail.”

The remaining abortion provider is in Coconino County. Bill Ring, the county attorney for Coconino, told The Appeal that he thinks the state’s 15-week ban is too “vague and illusory” to be enforceable, though he only said he was “unlikely” to actively prosecute under it. He said that he was not aware of the 2021 fetal personhood law when asked about it by The Appeal.

“Having these people elected and holding this much power over perpetuating harm to our communities is really scary,” said Eloisa Lopez, executive director of the Abortion Fund of Arizona.

She stressed, for instance, that many people who seek abortion care are already parents. “We are looking at a future of criminalizing parents, putting them in prison, stripping them away from their existing families, and those people will probably be funneled into child protective services.”

Lopez added that it would make a difference if county attorneys instructed their staff to hold off on prosecuting abortion. “These prosecutors are one of those few lines of defense against the criminalization of pregnancy outcomes,” she said.

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