Arizona’s ‘Personhood’ Law Would Criminalize All Forms of Abortion

Reuters reports, Abortion providers urge judge to block Arizona ‘personhood’ law:

Arizona abortion providers on Friday urged a federal judge to block a state law recognizing the personhood of a fetus from the moment of fertilization, saying it was vague and opened them up to prosecution.

Jessica Sklarsky of the Center for Reproductive Rights, who argued for the providers at a hearing before U.S. District Judge Douglas Rayes in Phoenix, also said the provision could conflict with a law allowing abortion up to the 15th week of pregnancy set to take effect in September.

Kate Sawyer, of the Arizona attorney general’s office, countered that the provision, which states that Arizona law must be interpreted to grant fertilized eggs, embryos and fetuses the same “rights, privileges and immunities available to other persons,” was not intended to create any new crime related to abortion.

BULLSHIT! Kate Sawyer owes a duy of candor to the Court, and she lied to the Court, for which she should be sanctioned.

Abortion is what so-called personhood laws are all about. Why So-Called Personhood Laws Are the Next Big Threat After ‘Roe’ Falls (excerpt):

By removing the federal constitutional protection of abortion rights, the Supreme Court will lay a pathway for anti-abortion state officials to be as extreme as they can in limiting abortion access, including equating the life of a pregnant person with that of their fetus.

[T]hese “personhood” bills are modeled on the “Human Life Amendment” and have been introduced into Congress and state legislatures hundreds of times since Roe became the law in 1973. The bill seeks to amend the Constitution to consider a fertilized egg to be the equivalent of a human being from the moment of conception, entitling it to full protection of the law. We are now seeing an increase in attempts to introduce such fetal “personhood” laws at the state level, with five states introducing these bills this year. Additional states have attempted to use or widen the definition of existing laws‚ such as those of homicide or child abuse, to include an embryo in their scope. The result is to place any pregnant person in an adversarial relationship with their own body and to make their health care providers law enforcement agents.
[F]etal “personhood” laws that ban abortion include only limited exceptions when a pregnant person’s life is at risk. However, it is often impossible for medical providers to determine when someone’s life is at risk or whether it’s “merely” their health that’s in jeopardy. But waiting for a patient’s health to decline to warrant treatment is dangerous and immoral, and the effects can be devastating.

Laws that give embryos “personhood” imperil miscarriage management with lethal results. Savita Halappanavar’s death made headlines after physicians delayed providing her with appropriate medical treatment during a septic miscarriage because they could still detect a fetal heartbeat. By the time they acted, it was too late and Halappanavar died of sepsis, bringing the tipping point to a growing cry to abolish Ireland’s anti-abortion law. Polish activists have loudly protested the similar deaths of two pregnant women, one with twins, who were denied appropriate medical treatment because of Poland’s strict abortion ban. The definition of abortion in one Oklahoma bill, which became law on Tuesday, likewise could prohibit the removal of an ectopic pregnancy or miscarriage treatment.

By criminalizing abortion through fetal “personhood” laws, we turn anyone who miscarries into a criminal suspect, condemning them to our racist criminal justice system. Even as Roe’s protections remain in full force today, pregnant people being prosecuted for behavior potentially harmful during pregnancy is not uncommon. Last month, an emboldened Texas prosecutor brought murder charges against a Latina woman, Lizelle Herrera, after she came to a hospital emergency room for excessive bleeding while miscarrying a pregnancy.

Meanwhile, Brittney Poolaw, a member of the Wichita Nation, was sentenced to four years in prison for first-degree manslaughter after she informed health-care providers that she had used illegal drugs during her pregnancy and miscarried at 17 weeks. Although the direct cause of each miscarriage was unknown, the message was clear: Seek medical help for miscarriage, and you may be jailed.

Equating the life of a fertilized egg with that of a pregnant person could force certain forms of contraception off the market and undermine in vitro fertilization and stem cell research too.

“Morning After” pills, and medication abortions – which are legal – could lead to a state murder or manslaughter charge against a mother under the personhood law. In vitro fertilization (IVF) produces a number of fertilized eggs, not all of which are used. A medical provider could not legally discard of any unused fertilized eggs. All stem cell lines come from discarded IVF embryos. Stem cell research – which, to be clear does not always involve embryonic stem cells – has led to some of the most important medical breakthroughs of the past 30 years.

Some states already have appointed independent counsel to represent a fetus. Alabama and Texas have proposed retaining a fetal lawyer when a minor seeks a court’s permission to have an abortion. Cross state lines and your reproductive rights could plummet to a level below those that existed before Roe.

The concept of a “fetal lawyer” is not about representing a client with whom the lawyer obviously cannot confer in confidentiality. The lawyer is actually an agent of the state under the doctrine of parens patriae: the doctrine under which all orphans, dependent children, and persons deemed incompetent are within the special protection, and under the control of the state. So the state prosecutor and the fetal lawyer are both in adversarial relationship to  the mother. It is the state forcing a woman to give birth, or to be prosecuted.

Reuters continues:

Rayes did not rule at the hearing, though he questioned both sides extensively, in particular pressing Sawyer to explain what exactly the personhood law does.

The case is one of many disputes over state abortion laws in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the court’s longstanding precedents in Roe v. Wade and Casey v. Planned Parenthood guaranteeing abortion rights nationwide.

Arizona passed the personhood law in April 2021. Abortion providers sued to block it last August, arclassguing that it was unconstitutionally vague because it did not make clear what conduct, if any, it would prohibit.

Following the Dobbs ruling, the providers filed an emergency motion to enjoin the personhood law, saying it could subject providers to prosecution for aggravated assault, child endangerment or other crimes – though they noted that the state’s homicide statute carves out abortion [for now.]

The state countered in a filing that the provision’s effect would have to be interpreted case by case by courts, making its exact effect “anyone’s guess.”

Well thanks Kate Sawyer for making the plaintiff’s argument that the law is unconstitutionally vague because it did not make clear what conduct, if any, it would prohibit.

Rayes expressed concern about that position at Friday’s hearing.

“How, in defendants’ view, are plaintiffs supposed to comply with the law if it is anyone’s guess what the law in Arizona is?” he asked Sawyer.

Sawyer said the law could not be challenged for vagueness because it merely creates a policy for interpreting other laws.

You would be correct to think this is an obfuscation.

Sklarsky said her clients could not rely on the state’s promise in court that the personhood law did not criminalize abortions.

Without an injunction, she said, the law would be “putting pregnant people in the state in immense danger.”

Arizona in March passed a law banning most abortions after 15 weeks, set to take effect in September.

Attorney General Mark Brnovich has also said he will seek to enforce a law from 1901, before Arizona was a state, banning virtually all abortions.

Actually, this 1901 law was a recodification of an 1864 Civil War era territorial law from the 1st Arizona Territorial Legislative Assembly. Arizona’s first ban on abortion was passed as part of the 1864 Howell Code, a year after the formation of the Arizona Territory (Arizona did not become a state until 1912).

As E.J. Montini of the Arizona Republic explains, Abortion ruling by Attorney General Mark Brnovich sets Arizona women back to 1864 (excerpt):

Attorney General Mark Brnovich announced in a tweet: “Our office has concluded the Legislature has made its intentions clear with regards to abortion laws. ARS 13-3603 (the pre-statehood law) is back in effect and will not be repealed.”

Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws. pic.twitter.com/jvjKXaXKwd

— Mark Brnovich (@GeneralBrnovich) June 29, 2022

Good Catch, Will!

@GeneralBrnovich has tweeted he thinks the 1864/1901 AZ Territorial-era law banning abortion now applies – but he hasn't backed it up with an actual AG's Opinion- simply a tweet.

Super professional.https://t.co/34TNlYS5G2

— Will Humble (@willhumble_az) July 9, 2022

The U.S. Supreme Court’s decision to overturn Roe v. Wade has allowed states to craft new anti-abortion laws or revert to those still lingering on the books. Like Arizona’s 13-3603.

It originated in early territorial days and was codified later.

The law 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.”

When the Supreme Court ruled in favor of a woman’s right to abortion back in 1973, ARS 13-3603 became unconstitutional. But the Legislature never voted to repeal it.

As I pointed out in an earlier post, a critical question which should be answered is “was anyone still being prosecuted under ARS 13-3603 by 1973?” Or had state and county attorneys abandoned prosecutions under this antiquated statute as out of date with modern societal norms at the time? If so, the law has been dormant for an additional 49 years, which weighs heavily in favor of finding that this antiquated law is dead letter law and is unenforceable.

As Montini concludes:

People like Brnovich might want to turn the clock back 158 years, but things have changed.

Women do all kinds of work now. They are independent. They are educated. They have hopes and dreams. They have daughters and granddaughters.

And, yes, they can vote.

You had better vote Republicans out of office to prevent the American Taliban from going apeshit crazy next year trying to make the dystopian “Handmaid’s Tale” a reality in Arizona.

UPDATE: Specialty license plate coming soon!