By Jeremy Beren / NewsBreak Pinal County, AZ
(Phoenix) — The Maricopa County Attorney's Office is the largest prosecutorial office on the ballot nationwide in 2022. Two-thirds of Arizona's criminal traffic runs through Maricopa, which nearly five million Arizonans call home.
Six of the state’s nine abortion providers are also based here — and as voters head to the polls in November, how pregnant women who seek abortions in the county will be treated hangs in the balance.
The county attorney race
Reproductive rights have become a central issue for candidates nationwide since June 24, when the U.S. Supreme Court struck down the 1973 Roe v. Wade decision.
In June, Maricopa County Attorney Rachel Mitchell (R) said at a press conference that abortion is “an extremely difficult issue." She said her office would “follow the ethical charging standard … which is the reasonable likelihood of conviction” when presented with these cases.
Mitchell later clarified to Arizona’s Family that her office would not prosecute abortions for incest or rape victims.
“I’ve had quite a few cases where women have gotten pregnant through rape or children have gotten raped pregnant through molestation or incest and that’s a completely different issue,” she said. “I am not here to re-victimize victims.”
Challenger Julie Gunnigle (D) is running to be Maricopa County's top prosecutor a second time following a narrow defeat in 2020. The phrase "not now, not ever" has become her campaign's calling card, referring to how her office would refuse to prosecute any pregnant person seeking an abortion — nor would it prosecute providers who perform the procedure.
Gunnigle has received an endorsement from Planned Parenthood Advocates of Arizona (PPA), the political offshoot of Planned Parenthood Arizona (PPAZ) — which has not supported candidates who have accepted donations from police unions.
"There is a profound conflict of interest (between police and the MCAO),” she told NewsBreak. “The community does not want to see it.”
"Who enforces bans?"
In addition to the six abortion providers in Maricopa, two more are based in Pima County, and one more is located in Flagstaff, the seat of Coconino County.
Pima County Attorney Laura Conover has already said she will not prosecute pregnant people or abortion providers. Coconino County Attorney Bill Ring has said his office finds the 15-week abortion ban that Gov. Doug Ducey signed into law earlier this year to be "too vague and illusory." Ring indicated he would be "unlikely" to prosecute pregnant people or providers under it.
Pinal County has no abortion clinics or providers, and the County Attorney’s Office in Florence did not respond to NewsBreak’s requests for comment on the enforcement of abortion laws in Arizona.
But one Maricopa County abortion provider told NewsBreak that a person can "absolutely connect the dots" between advocates' battle to ensure reproductive rights and who enforces Arizona’s laws.
Dr. DeShawn Taylor, who runs the independent Desert Star Family Planning clinic in Phoenix, said abortion bans increase the state’s interest in surveilling pregnant people, thereby introducing them to the carceral state — which would increase the prison population in a state where roughly 46,000 people are held in state-run or federal facilities.
According to Prison Policy Initiative data, more people are imprisoned per capita in Arizona than in any democratic country on Earth.
"Who enforces bans? The police," Taylor said via phone. "The police already have a (strained) relationship with certain communities ... The people who are already marginalized and vulnerable to policing and police brutality will be the same people who will then be impacted by increased surveillance during pregnancy."
Gunnigle too believes reduced access to providers is another factor that could expose pregnant people to expanded police presence, irrespective of whether they intend to receive an abortion.
“Mark my words — it’s going to be Black Arizonans, Indigenous Arizonans, and Arizonans of color who go to the emergency room presenting with bleeding during a pregnancy, and they are going to be investigated. We saw that (even when Roe was in effect) in literally every other jurisdiction," she said.
Reproductive rights advocates and abortion providers like Taylor want to build a framework where individuals get to make decisions about their bodies and their lives. They view interference from police departments, who enforce a state's laws, as a direct offensive against this goal.
"It is in the state’s interest that abortion be illegal in Arizona," Taylor said. "The only way to bring meaningful access back to abortion in Arizona is to change who runs the state.”
Taylor told NewsBreak that making abortion illegal introduces police presence into pregnant people's lives, and how police enforce the law is not equitable across the population. The maternal mortality rate is three times greater for Black women compared to white women, and advocates agree that abortion bans disproportionately affect people of color and people in marginalized communities.
According to the Mapping Police Violence database, a project under the non-profit WeTheProtesters umbrella, officers around Arizona have killed at least 40 people in each full year except one since 2013. Statistics show the Phoenix PD is unique among major departments in its reliance on violence.
The Phoenix PD, armed with an $850 million budget for the next fiscal year, is among the nation’s largest police forces. Despite the official contention that its officers "fire a weapon very infrequently when interacting with individuals," Phoenix Police officers fired at more people than any other major city's officers in 2018.
A major concern for Gunnigle, Taylor, and other advocates is how Phoenix police officers in particular will respond to pregnant people who are raped or sexually assaulted, especially if a judge reverses a July ruling that blocked Arizona's controversial fetal personhood law from taking effect.
Advocates are further troubled by figures showing the department's low sexual assault clearance and conviction rates. Many are concerned that pregnant people could be found responsible for their own assault and for endangering their fetuses.
Though Phoenix Police has not complied with NewsBreak's request to view official records pertaining to these rates, the Appeal's Meg O'Connor reported in April that the department's clearance rate for such cases in 2020 was abnormally-low.
Previous data compiled by ProPublica reflects the Phoenix PD's years-long failure to clear the vast majority of rape cases. In 2016, the department made only 70 arrests from 1,021 reported rapes. Thirty-nine other cases were cleared by exceptional means, which can include an offender's death.
Planned Parenthood v. Brnovich
Gunnigle is unsure whether everyday Arizonans can stomach the "scope and extent" of the link between policing and bans on safe abortions — especially if Arizona Attorney General Mark Brnovich successfully gets an injunction lifted that currently prevents the enforcement of a territorial-era law criminalizing the procedure.
The 1864 ban, adopted by the territorial legislature under the Howell Code, threatens two to five years' imprisonment for anyone found to have performed an abortion or assisted someone in getting one. Maricopa County Attorney Mitchell has indicated her office will prosecute providers based on the 158-year-old law.
“The law that is on the books right now … does specifically make abortions, except in the danger to the mother’s life, illegal in terms of the provider,” she said in June.
Gunnigle said the old ban does not fit anywhere inside Arizona's present-day criminal law or codes. The law creates only the sentencing scheme if a pregnant person or a provider skirts it, creating more confusion as to its application in 2022.
“Our filing system, quite literally, doesn’t have a way to designate what level of felony that is," she said.
According to Gunnigle's analysis, a ban like the one outlined in the 1864 law threatens to shred privacy guaranteed to Arizonans via the state constitution. Thus, It would impact people who cannot get abortions, as it would have the effect of criminalizing pregnancy itself.
“We’re pretty much status-quo”
On Aug. 19, Planned Parenthood attorneys returned to Pima County Superior Court in Tucson, where they continued to argue against having the 49-year-old injunction on the territorial abortion ban lifted.
PPAZ believes that because the state legislature has passed a number of laws over the years that not only acknowledge abortion but also regulate it, the practically-total ban spelled out in the 1864 law should not be allowed to take effect.
The Attorney General's Office argued that because Roe fell, the enjoined territorial ban should come back into effect, and the state legislature should figure out how best to unify these laws and ensure one does not invalidate another.
Pima County Superior Court Judge Kellie Johnson, appointed to her position by Gov. Ducey in 2017, delayed rendering a decision before Sept. 20. The 15-week ban Ducey signed into law during the last legislative session has been slated to go into effect on Sept. 24.
Meanwhile, Desert Star Family Planning remains on the front lines.
After a pause between June 24 and July 12, Taylor's clinic resumed offering medical abortions. She views the present as "the least-risky time" to continue providing care — precisely because of the legal uncertainty. Her plan is to keep scheduling consultations with prospective patients until further notice.
"The time that we have to help people get abortions has been extended," Taylor said via phone last week. "We're pretty much status-quo."