The Arizona Governor and Attorney General are at odds again about just what Arizona law is.
The two Republicans were in a 2020 dispute over price gouging enforcement in Arizona – with Gov. Ducey directing AG Brnovich to pursue price gougers under the state’s Consumer Fraud Act and AG Brnovich claiming no Arizona law exists to outlaw price gouging.
Considering the Republican-controlled legislature still hasn’t passed a price-gouging law and price gougers still have free reign in Arizona, it makes one wonder whether it was all a rouse to draw media attention for their (failed) 2022 election bids.
Anyhoo, this time it’s about abortion availability in the state.
Ducey claims current law is the recent Republican-passed statute that criminalizes abortions after 15 weeks. While the law allows for medical emergencies after 15 weeks, it makes no exceptions for rape or incest.
That would be beneficial for general access because 95% of abortions in Arizona are performed within 15 weeks.
It would be devastating for the 5% of pregnancy complications that are mostly life-threatening, which doctors are now afraid to perform, while the corps of a lateterm God-given miscarriage must remain in the womb to fester.
And victims of incest and rape are just SOL in Arizona.
Brnovich, on the other hand, contends that pre-statehood legislation prohibiting all abortions except those to save the life of the pregnant patient while imposing a two-to-five-year prison sentence on doctors or anyone else who assists in an abortion supersedes the more recent 15-week statute.
Republicans who agree with Brnovich claim that restoring the century-old statute “affirms the intent of the legislators.”
That is the legislative intent of the white-male-in-charge 19th century, not the co-ed legislature of the 21st century.
I suppose we should be thankful that the Arizona legislature abolished in 2021 a companion law also passed in the nineteenth century that stated a woman could face up to a year in prison for obtaining an abortion.
However, neither Republican has mentioned their backup plan: the Arizona Personhood Law, which grants fetuses, embryos, and fertilized eggs the same “rights and privileges” as “other persons” from conception.
However, “personhood” was not granted to fertilized eggs located in fertility clinics because the Republican-controlled Arizona legislature already classified fertilized eggs outside of a womb as property in 2018, granting fertilized egg ownership rights to the donor who wants to “develop it to birth” without the consent, or even against the wishes, of the other donor.
Rep. Teresa Martinez (R-Casa Grande), while voting for a bill that limits parental rights for LGBTQ children, ironically announced “Children belong to their parents, and their parents are responsible for the morality that they chose for their child.”
Translation: A fertilized egg inside a womb is equal to any female, but a fertilized egg outside a womb is the property of the parent who desires to procreate… unless the parents are “the wrong type.”
Despite the fact that the new Republcan laws across the country grant “personhood” status to fertilized eggs, at least those attached inside the body, unlike Georgia, where tax breaks and child support kick in once an embryo reaches 6 weeks in the womb, most appear to have morality police criminalizing pregnancy as the principle benefit.
From 1973 through 2020, the National Advocates for Pregnant Women monitored almost 1,700 cases in which individuals were investigated, arrested, otherwise incarcerated, or forced to undergo medical intervention by the state for conduct perceived injurious to their own pregnancy.
Cases involved allegedly falling down stairs, drug use harmful to pregnancy (both legal and illegal), and suicide attempts.
Domestic violence victims were also featured in some cases [accusing the victim of causing harm to pregnancy by or while remaining in an abusive relationship].
A judge blocked Arizona’s Personhood Law in July for possible unconstitutional “vagueness,” stating that no one should “have to guess at whether their conduct is on the right or wrong side of the law.”
Brnovich, backed by Ducey, is still in court asking for the ban to be lifted and allow enforcement.
Restoring the law would expose providers and pregnant people to arbitrary prosecution for child abuse, child neglect, assault, or a slew of other offenses – not just for abortions but even for accusations of inducing a miscarriage through ‘behavior.’
Enforcement
In a statement posted to Facebook in September, Maricopa County Attorney Republican Rachel Mitchell said she will not prosecute anyone who receives an abortion, admitting that the law already prohibits prosecuting individuals who receive abortions.
Mitchell’s response appears to have shifted from her debate with Maricopa County Attorney candidate Julie Gunnigle, in which Mitchell stated it was “not responsible” of Gunnigle to say she would utilize prosecutorial discretion never to prosecute a person receiving an abortion.
“I use prosecutorial discretion every single day of my life, but that means I’m going to look at every case for whether there’s a reasonable likelihood of conviction,” Mitchell stated during the debate.
After a Pima County judge declared the 1864 near-total abortion ban enforceable, Mitchell issued a statement saying she does not plan to prosecute women seeking abortions in cases of rape or incest and will seek the court’s advice if asked to do so.
“Survivors have been begging for clarity as to how to get a special ‘sexual assault permission slip’ from the County Attorney to have an abortion,” Gunnigle tweeted.
According to Alabama law, women who have a miscarriage or stillbirth and are ‘revealed’ to have used drugs during their pregnancy face 99 years in prison.
In just the last three months, Etowah County, Alabama has jailed ten then-pregnant women and women who had just given birth, accusing them of exposing their fetuses to drugs.
Etowah County has kept pregnant or post-birth women in jail for weeks or months since implementing its unique policy that demands mothers complete rehab and post a $10,000 bond.
Remember, this is before a trial or conviction.
Ashley Banks was arrested for allegedly carrying a gun without a permit and a small amount of marijuana. Etowah County put her in jail “to safeguard the fetus” after officers pressed her to admit she smoked marijuana on the same day she found out she was pregnant – two days before her police encounter.
Even after her family raised the money for her bail, she was denied release due to the rehab requirement, even though every rehab facility refused to take her because she wasn’t an addict – leaving her in legal limbo to sleep on the jail floor for three months without access to prenatal care.
Another mother tested positive for antihistamine and was imprisoned for allegedly being a meth addict and endangering her fetus, even though she had already given birth and her child was still in the hospital with no drug complications reported.
Pseudoephedrine (Sudafed), which is used to treat sinus and nasal congestion, may generate false positive drug test results for amphetamine or methamphetamine.
Other legal over-the-counter medicines (such as Vicks VapoInhaler) and some foods (such as poppy seeds) may also result in a positive methamphetamine screening drug test.
Lawyers with National Advocates for Pregnant Women (NAPW) filed habeas petitions to challenge the bail restrictions, which were eventually reduced to $2,500 and the rehab requirement removed.
However, Etowah County continues to charge the now non-pregnant victims for pretrial monitoring costs, which includes drug testing every 48 to 72 hours.
Abandoning State’s Rights
The Life at Conception Act has been introduced in both chambers of Congress and would recognize a fertilized egg, including clones, as a person with equal protection as any born person under the 14th Amendment of the United States Constitution.
The bill has the support of 19 Republican senators and well over 100 Republican House members.
Though Republicans were quite vocal after the overturn of Roe v Wade that a 15-week ban on abortion is “not ambitious enough,” Republicans in Congress have proposed a 15-week nationwide abortion ban that includes maternal health but few or no exceptions for rape or incest, contradicting the core Republican Roe argument that abortion should be left to individual states.
Republicans have spent two decades whipping up their base by claiming federal funds are used to pay for abortion while knowing the Hyde Amendment prohibits federal funds from being used for abortion except in cases of rape, incest, or to save a patient’s life.
In the last two years, fellow statehouse Republicans have passed abortion bans without exceptions for rape and incest (including Arizona), some even without exceptions to save the pregnant person’s life.
But now Republican candidates for Congress are promising to protect federal abortion funding in cases of rape and incest in bills passed by Congress… just in time for the midterm elections.
While Republican candidates throughout the country are divided on whether abortion should be legalized in circumstances where the pregnant patient’s life is in danger, incorporating “life or health” language to enable abortion exceptions is a hard Republican pass.
“If we expand it to health, I think it’ll be way too controversial, and they’ll use it to bring in other diagnoses,” said Kansas Republican Sen. Roger Marshall, who worked as an OB-GYN for more than two decades before being elected to Congress.
“Look, every woman is stressed when they’re pregnant with anxiety, and they have nausea, but their life is not being threatened. So I would leave it just like it is,” Marshall add.
[On a side note, I’m unsure whether he did more damage as an OB-GYN or a Congressman.]
Dual-Purpose Prescriptions
In states with abortion bans, patients filling dual-purpose prescriptions are being subjected to delays and denials as well as requirements that doctors attest the prescription is for “a diagnosis unrelated to an abortion” or invasive patient questions in front of other customers about whether they’re pregnant or plan to use the medication for an abortion.
Patients who are over the age of 50 or who have had a histerectomy are not exempt from the invasion of privacy.
And the delays, denials, invasive inquiries, and multiple doctor confirmations are repeated every month when the same patient attempts to pick up prescription refills at the same pharmacy.
Methotrexate combined with other medications treats ectopic pregnancies, in which a fertilized egg implants outside the uterus. Ectopic pregnancies are dangerous for fetuses and can severely jeopardize a pregnant patient’s health.
However, Methotrexate is a dual-purpose medication because it is also widely used to treat autoimmune illnesses such as rheumatoid arthritis, Crohn’s disease, lupus, psoriasis, and cancers such as leukemia, breast cancer, lung cancer, and lymphoma.
Due to its versatility, methotrexate has been designated as an “essential drug” by the World Health Organization.
Just two days after Arizona’s new abortion law went into effect, a 14-year-old Tucson girl with chronic rheumatoid arthritis and osteoporosis which has kept her in and out of the hospital for most of her life was denied a refill of a life-saving prescription medicine she had been taking for years. She takes methotrexate to help control the debilitating symptoms of the illness.
Misoprostol, which prevents stomach ulcers in persons who take aspirin, ibuprofen, or naproxen, is another dual-purpose medication since it can also be used to induce abortion when taken with other medications.
In a joint statement by multiple pharmacy organizations across the country, pharmacists and healthcare providers expressed concern about “state laws that limit patients’ access to medically necessary medications and impede physicians and pharmacists from using their professional judgment.”
Nonetheless, doctors have reported that some pharmacies refuse to carry methotrexate, misoprostol, and other necessary drugs entirely to reduce their own legal liability due to the anti-abortion laws.
And some physicians have declined to provide those medications to autoimmune and cancer patients in need if the physician percieves the patient may have the ability to become pregnant, citing concerns about prosecution.
Targeting Contraception
Passed to regulate women’s bodies before women gained the right to vote, ARS 13-3603 says:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
Some states, such as Texas, are already arguing that they can prosecute someone in another state for performing an abortion on a Texas resident who traveled to that state for an abortion, and Republicans in Congress just blocked a bill protecting those who cross state lines to access abortion in a state where it’s still legal, so it’s not a stretch to think that the Arizona AG and County Prosecutor Offices will similarly argue their right to prosecute someone in another state for mailing such drugs to an Arizona resident.
Kelly Townsend (R-Mesa) and others have argued for over a decade that birth control pills and IUDs, which prevent fertilization, are forms of abortion and should be completely outlawed. Other Republicans have claimed that access to birth control is a “gateway drug” to abortion and that contraception should also be banned.
Last year, the Mesa Republican introduced a bill declaring that a pharmacist has no right to refuse to fill a prescription for ivermectin or any other “off label” drug—even if the manufacturer has not secured federal approval for the drug to be used for that condition.
The bill failed but the irony is off the charts.
Republican Matthew DePerno, a candidate for Michigan Attorney General, wants to outlaw Plan B and compares regulating the contraceptive pill to regulating the dangerous opioid fentanyl.
Plan B is a contraceptive tablet, which prevents conception, rather than an abortive pill that terminates a pregnancy.
When asked if the court system might be used to remove Plan B from pharmacies, DePerno responded, “How do you stop it from coming in? That’s the question.”
He continued: “You have to stop it at the border. It would be no different than fentanyl… The state has to ban it, and it should be banned. But it’s just an issue of how you enforce it; how do you ensure that it stops?”
While Republicans are feeling giddy about their recent anti-abortion success and want to ride that wave to end all safe and legal abortion and birth control access to boot, it might not be the power boon they thought it would be.
Abortion on My Mind
Polls consistently show that the economy is voters’ top concern, but abortion has surged since the Supreme Court’s Roe v. Wade decision in June, placing a greater focus on down-ballot races.
November’s midterm elections for legislative races across the country – including Arizona – will determine whether millions of Americans see abortion access expanded or restricted.
Since 2012, Republicans have held most statehouse seats across the country.
14 state legislatures have totally prohibited abortion, 8 bans are now being challenged in court, and 4 state legislatures have gestational limits ranging from 6 to 20 weeks (weeks of pregnancy are counted since the last menstrual period).
While Republican state legislative candidates have begun to claim the “suggestion that abortion could be imperiled” is a “gaslighting” attempt to divert attention away from “more important issues,” no one can deny that abortion rights or restrictions will continue to take place in state legislatures.
According to a July Public Religion Research Institute study, 74% of Americans and 48% of Republicans oppose making it a felony to perform an abortion.
In a recent Suffolk University/Arizona Republic/azcentral.com poll, nearly 32% of Arizonans selected inflation and the economy as their top concerns, but abortion rights and threats to democracy come in at 17% each.
While 41% of men view inflation as the most important political issue, women are almost evenly divided between inflation and abortion at about 25% each.
The #1 problem for working-age adults in Arizona was inflation and the economy.
Those aged 35 and up mentioned threats to democracy more frequently than younger people.
Abortion remained a source of concern for people of all ages.
Education, election fraud, climate change, health care, and public safety were all distant concerns.
Autonomy Lesson
Meanwhile, the Supreme Court of India ruled on last week that the rights granted to married women under the 1971 Medical Termination of Pregnancy Act, which states that they can abort a fetus at their will, also apply to unmarried women, making “all women entitled to safe and legal abortion.”
Focusing on reproductive autonomy as being closely related to bodily autonomy, the bench ruled that a pregnant person must have the right and final decision to choose contraception, the number of children, and whether or not to abort without regard for any external or social factors.
“Decision to carry a pregnancy or terminate is part of woman’s bodily autonomy,” the court stated, adding that every pregnant woman has the right to choose without seeking or taking anyone’s permission.
“Law shouldn’t decide beneficiaries of a statute based on narrow patriarchal stereotypes on what constitutes ‘permissible sex’,” the court concluded.
The Indian Supreme Court went on to say that the impact of an unplanned pregnancy on a woman cannot be underestimated and that the fetus’s health is equally dependent on the mother’s mental health.
While the United States struggles with the gear shift, other countries are cruising down the twenty-first century highway in fifth gear.
Maybe even with the top down.