Yes, Roe v Wade will be overturned soon. Yes, they can put you in jail for a miscarriage in Arizona once that happens. Here’s how.

20 Sep 2018 11:01 am
Posted by: Donna

abortion prosecution headlineIn 2017, a Tennessee woman was charged under that state’s abortion ban. 2017, not 1917.

Started thinking about writing this article, in the way I have done it, when I had a conversation with our 22 year old legal assistant about Roe v Wade, the Supreme Court, and Arizona’s trigger law A.R.S. 13-3604, which becomes enforceable as soon as Roeis gone.

Our assistant, a bright young college student, did not know what Roe was and did not know about any of this. My guess is reproductive rights as a legal and historical matter are not covered much in AZ public schools, and the press here tends to shy away from covering the topic comprehensively.

I wrote this as a straight-forward, non-political jargon-laden explanation, for young women especially, but everyone should know about this because most people don’t. Please feel free to share this blog post, or to copy the entire article below, with attribution.


Could I really go to jail for an abortion or miscarriage in Arizona?

Yes. Here’s how:

Roe v Wade

Background: Roe v Wade is a famous 1973 U.S. Supreme Court decision that legalized abortion across America. Prior to that, abortion was not safe and legal in most of America. Women often had to have illegal procedures in unsafe conditions, often performed by people with little or no medical training. Some women resorted to performing procedures on themselves with things like knitting needles and coat hangers, which often led to injury and death.

Women who wanted to change that, along with doctors, nurses, and other health care providers, argued their case before the courts and won. Abortion became legal in all 50 states, including Arizona, and health clinics such as Planned Parenthood and others were able to provide safe abortions along with birth control, STD screenings, and other services.

A.R.S. 13-3604

Background: Prior to the 1973 Supreme Court decision, Arizona law banned abortion. The text of the law, which is under our state’s Criminal Code, goes back to the early 1900s, when Arizona was becoming a state. It states the following:

13-3604. Soliciting abortion; punishment; exception
A woman who solicits from any person any medicine, drug or substance whatever, and takes it, or who submits to an operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless it is necessary to preserve her life, shall be punished by imprisonment in the state prison for not less than one nor more than five years.

That law was fought in court in the early 1970s by Planned Parenthood, but the Arizona Supreme Court upheld it in early 1973. Then the U.S. Supreme Court Roe v Wade decision superseded it very soon after. Because of that, the law has been unenforceable since then, though still very much on the books in Arizona.

How could it go back into effect?

According to legal experts at the Center for Reproductive Rights, Arizona is one of 22 states with a Roe “trigger law”, and here’s how the state government could respond to Roe v Wade being overturned:

If Roe were overturned, these laws could be revived in one of two ways. In some states, a ban was never declared unconstitutional or blocked by the courts, and therefore if Roe is overturned, state officials could immediately begin to enforce it. In other states courts have blocked or limited a pre-Roe ban based on the decision; officials could file court actions asking courts to activate the ban if Roe fell.

Clinics could begin closing immediately, leaving women without safe abortion options.

How could women be charged and sent to jail for abortion or miscarriage?

A.R.S. 13-3604 clearly spells it out:

“A woman who solicits from any person any medicine, drug or substance whatever, and takes it, or who submits to an operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless it is necessary to preserve her life, shall be punished by imprisonment in the state prison for not less than one nor more than five years.”

There are many ways Arizona’s state or local governments can interpret this law to investigate you for abortion or miscarriage. Here are some ways:

If they learn you have obtained, or are planning to obtain an abortion.
If they believe you performed a self-abortion, via abortion pills you (or someone for you) obtained out-of-state or online, or other method.
If you are having a miscarriage and a first responder (often a law enforcement officer) or a person at the clinic or hospital believes you ingested something to terminate the pregnancy.
If you ask a neighbor or co-worker where you could go to get an abortion in Arizona, or express negative feelings about your pregnancy prior to having a miscarriage or stillbirth to anyone, including on social media.
You are pregnant and using, or suspected of using drugs or alcohol, even if you were unaware of the pregnancy at the time.

Women are already being prosecuted and jailed under abortion restrictions and laws designed to protect fetuses in several states. (The story in my headline image, about the Tennessee woman charged for trying to give herself a coat hanger abortion is here.)

Recently, in Peoria, AZ, a Walgreen’s pharmacist refused to fill a woman’s prescription for medication to finish her miscarriage, which she was (painfully) in the middle of. Because this medication is sometimes used for abortion, the pharmacist denied the woman the vitally necessary medicine, citing his religious views opposing abortion. He was allowed to do this under current Arizona law.

Imagine people with that pharmacist’s views, but also with the authority to prosecute you in addition to depriving you of needed medical care!

A.R.S. 13-3604 contains no exceptions for rape, or for pregnancy complications that endanger your health.

How is the Roe v Wade decision in danger?

Due to the election of Donald Trump as President in 2016, the people who oppose legal abortion are going to change the Court (which has 9 members) from a 5-4 majority in support of legal abortion, to at least a 5-4 majority against it by 2019. This means there is likely to be a case brought to the Supreme Court that will lead to Roe v Wade being struck down.

Most legal experts say the next step is the issue goes back to each state to regulate. In Arizona, that means A.R.S. 13-3604 is available for people with the authority to do so to use it, as I have explained.

What can we do about this law?

It should be overturned immediately. There is no good reason for this law to remain on Arizona’s books. Period.

Contact the Governor’s office here, and demand Governor Doug Ducey call a special session as soon as possible to repeal A.R.S. 13-3604. Example of a statement:

“Roe v Wade may be overturned soon and women should NOT face prison for an abortion or miscarriage. Governor Ducey, repeal 13-3604 now!”

Contact your state legislators (you have a total of 3 in your district, one Senator and two Representatives). You can find where your district is and who your representatives are from your County Elections office, listed here.

What about the election coming up?

The 2018 midterm election in Arizona is an extremely important opportunity to protect Arizona women from this horrible 13-3604 trigger law going into effect. Be sure to vote, and to vote only for candidates who support keeping abortion legal and safe!

If you need to register to vote for the November 6th, 2018, Arizona election, information is here. The deadline to register is October 9, 2018.

Who are the people running who support keeping abortion legal and safe and never prosecuting a miscarriage?

Most politicians elected in Arizona are from one of the two major parties: Republican or Democratic.

Arizona Republicans hold the majority of elected state government positions in Arizona. All are opponents of safe, legal abortion, and on the record as wanting to overturn Roe v Wade. They are likely to leave the 13-3604 trigger law in place, and possibly push for stronger punishment for abortion or “suspicious” pregnancy issues.

Arizona Democrats running on November 6th support safe, legal abortion, and are for keeping Roe v Wade in place and expanding women’s health care options. They are likely to overturn Arizona’s 13-3604 trigger law as soon as they can, so that when Roe is gone, women will still have safe abortion options and not fear being prosecuted for abortion or unexpected pregnancy problems in Arizona.

I can’t get pregnant but want to help. What can I do?

Support your partners, family members, friends, co-workers, etc., who may need an abortion or help with their miscarriage without fear of being jailed for it, by contacting elected officials about the need to overturn A.R.S. 13-3604 now. Also register to vote and vote only for people who support women’s right to safe, legal abortion.

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