By Jeremy Beren / NewsBreak Pinal County, AZ
(Phoenix) — Fear and uncertainty remain prevalent in Arizona following the U.S. Supreme Court's choice to strike down the 49-year-old Roe v. Wade decision late last month, as the state's abortion providers paused their services shortly after the ruling was made public.
Arizona Attorney General Mark Brnovich seems clear on what will happen next. His office on Wednesday stated that a territorial-era abortion ban is now state law — not Senate Bill 1164, the 15-week ban Governor Doug Ducey signed during the last legislative session, which would have entered into effect in September.
However, the statement notably mentions that Brnovich's office has not asked "the court" to vacate an injunction that has prevented the original 1864 law from being enforceable. The territorial-era law was enjoined after the Roe ruling was made in 1973, rendering it unconstitutional and therefore unable to be implemented.
Some attorneys and legal analysts think Brnovich is merely trying to score political points as midterms draw closer.
“The extreme right does not care about women at all. And they certainly do not care about the privacy of Arizonans. I want to be very clear — not on my watch," Democratic Arizona Attorney General candidate Kris Mayes said Thursday.
"(Brnovich's statement) doesn't make sense," one source in the Phoenix-area legal community told NewsBreak.
Demonstrations and protests against the Supreme Court ruling and the Attorney General's apparent next move have taken place around the Phoenix metropolitan area during the past two weekends. These gatherings, while largely peaceful, have nonetheless prompted National Guard presence around the Arizona State Capitol. Local far-right extremist Jennifer Harrison got involved Sunday, macing protesters from her vehicle in downtown Tempe. The city's police department on Monday announced it would launch an investigation into the attack.
The Supreme Court's 6-3 decision to overturn Roe v. Wade has drawn widespread condemnation, perhaps enhanced after Justice Samuel Alito's draft opinion leaked in May. The court heard a case from Mississippi centered on that state's Gestational Age Act, in which the Jackson Women's Health Organization sued Thomas Dobbs of the Mississippi State Department of Health to challenge the constitutionality of the 15-week abortion ban at the heart of the law.
Alito authored the court's majority opinion, which was delivered June 24. It overturns both Roe and the 1992 Planned Parenthood v. Casey decision, leaving abortion regulations up to each individual state. Alito and the conservative majority argued that a pregnant person's right to an abortion is not enshrined in the United States Constitution, and neither is it "deeply rooted" within the country's history.
Some may consider it ironic, then, that Arizona's abortion restrictions were first enacted well before the territory gained statehood in 1912. Arizona Territory was formed in 1863 and the legislature's ban criminalizing abortion came one year later, threatening two to five years' imprisonment for any individual convicted of performing the procedure or found to have assisted in obtaining it.
The extreme language in this law, ARS § 13-3603, has broad criminal potential and multiple possible interpretations — such as criminalizing advertising or transmission of information that could help someone procure an abortion, as one source with deep ties to the fight for abortion rights pointed out in conversation with NewsBreak. It has also been submitted that this Attorney General's office could even bring conspiracy charges, applying ARS § 13-1003 broadly, against someone suspected of providing aid.
Allies have known all this for some time, though. For example, in 2019, the Planned Parenthood Advocates of Arizona supported Rep. Athena Salman and Sen. Victoria Steele when the Democratic lawmakers introduced legislation to repeal the pre-Roe ban. Republicans in both chambers shut it down.
Advocates believe that the law Brnovich's office wants reinstated will not stop anyone from helping others access health clinics that perform abortions. On the contrary — they are realistic enough to know it will only drive their efforts deeper underground.
In his concurring opinion on the Dobbs case, Supreme Court Justice Brett Kavanaugh indicated that states where abortion is or will become illegal cannot prevent its residents from traveling elsewhere to receive one. It should be emphasized that no travel ban like this exists — for the moment. One theory positing that officials could move to open a Planned Parenthood clinic on Indigenous lands has met with skepticism from legal analysts who say those promoting the idea are ignoring complicated economic and ethical realities.
"This outside expectation that tribes are going to somehow save everyone, and give up use of their land one more time for outside use — that was the piece of it where we were like, we had to say something, number one, as a resource for people who are presuming that this can happen, but number two, that the presumption tribes would even want to do that when it's not coming from the tribe," Arizona State University Law professor and Cherokee Nation citizen Stacy Leeds told the Arizona Republic.
NewsBreak has been told that advocates in Arizona are acting cautiously amid the current turmoil, but "reciprocity" with clinics in other states — or creating new clinics In Mexico — is a topic being explored. Abortion was decriminalized in Mexico last year, and the procedure remains legal in states that neighbor Arizona and have Democratic governors — California, Colorado, Nevada, and New Mexico.
One source said that those with means will have more options and opportunities, but how to secure abortion access for a wide range of people is under discussion — because the expectation is that the people most in danger following the Dobbs decision, those who will suffer the worst consequences, are low-income people and people of color.
Abortions will always be sought and facilitated, the source said, and irrespective of this ruling there will always be ways to lock in access for a person who needs one, for whatever reason. Unlike "the old days," there should be no need for pregnant people to turn toward “back alley butchers” for help — in part because medication abortion through the use of mifepristone and misoprostol is not only viable, but safe.
Another serious concern currently swirling in these circles is the growing potential for exploitative, illegal economies that sell "ineffectual compounds" touted and sold as the genuine article. These fake, ineffective medications peddled by "nefarious opportunists" are potentially dangerous, and a byproduct of driving abortion underground.
This illegal economy will be further buoyed by Arizona's law prohibiting people from sending or receiving abortion medication — in the United States, commonly a tandem of mifepristone and misoprostol — through the mail without a prescription. The source told NewsBreak that they expect this state law to become problematic, as a mifepristone and misoprostol regimen is FDA-approved and can be self-administered.
Protracted legal challenges will, in no small part, determine how and when state abortion regulations are going to supersede the federal pronouncements that emerged from a decision once regarded as settled law. Indeed, the battle to promote and strengthen reproductive rights does not end here.
Advocates in Arizona believe the Supreme Court, via last month’s Dobbs ruling and through decades of conservative activism, has challenged bodily autonomy for everyone, reinforcing an anti-reproductive justice agenda that props up archaic supremacist power structures along racist, classist, and sexist lines.