On Nov. 4, the University of Arizona School of Government and Public Policy held a webinar to discuss the confusing state of abortion law in Arizona as a result of the Dobbs v. Jackson Women’s Health Organization decision back in June.
The panel consisted of three leading experts in fields impacted by the decision: Emeritus professor Barbara Atwood of the UA’s James E. Rogers College of Law, former Pima County public defender Esther Brilliant and private attorney at Myers Strickland Adoption and Assisted Reproduction Law Heather Strickland.
Legal precedent and history
Atwood began the panel by discussing the legal history of abortion law.
“Since the Dobbs decision on June 24 this year, we have seen abortion services be shut down at least twice statewide in what you might call a de facto ban,” Atwood said, adding that calling the state of Arizona law on abortion, chaotic “is an understatement.”
Atwood explained that in the Dobbs decision, Justice Samuel Alito argued that the right to abortion assured in Roe v. Wade should be overruled, and the authority to regulate abortion must return to people and their elected representatives.
Atwood also put forth a discussion about abortion law throughout history. The process of criminalizing abortion took place towards the end of the 19th century, with it being outright banned in 1910.
“There were some accepted practices up until that point, but there was not wide recognition of an affirmative right to terminate your pregnancy … in part, because women were totally missing from the formulation of law at that point. Women weren’t voting members of any [government] body,” Atwood said.
Atwood also offered her insight into Justice Clarence Thomas’s interest in reconsidering decisions based on Roe v. Wade, including Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges. These cases assured rights to contraception, same-sex intimacy and same-sex marriages, respectively.
“I don’t believe that the court is going to overturn the same-sex marriage decision, but there are a lot of smart people that I respect who are very worried about that,” Atwood said.
Atwood also touched on the strict 1864 abortion ban that was blocked with an injunction in 1973 after the Roe v. Wade decision. On Sep. 22, a Pima County Superior Court judge lifted the injunction only days before a 15 week ban was signed into law by Gov. Doug Ducey was scheduled to go into effect. This left many confused as to which law took precedence. Atwood clarified that the Arizona Court of Appeals entered a stay of the Pima County Judge’s order.
“[The 1864 ban] is not in effect, and it will stay that way until the Court of Appeals resolves the case,” Atwood said.
Atwood concluded her presentation by discussing some of the potential legal arguments that we could see in the future if abortion laws are challenged.
One example she cited was religious freedom, as some religious groups believe that a woman retains the right to terminate a pregnancy.
“Really, what the Supreme Court has done is impose a Christian dogma,” Atwood said. “There are even some people who are arguing that forcing a woman or pregnant person to carry a fetus to term is a form of involuntary servitude … those are arguments that are possible, and I think we’re going to see some of them get litigated in the future.”
Legal defense and charges
Brilliant continued the panel with a discussion of criminal defense and prosecution. Brilliant is currently working with attorneys from Planned Parenthood and public defenders in Maricopa County on some of the defenses that Atwood mentioned.
“I can’t give legal advice to any of you. I can basically just share my knowledge and my research and what I think could potentially happen,” Brilliant said. “We’re in an era now where your reproductive care depends on the state in which you live.”
As Brilliant explained, some of the potential criminal liability in Arizona is a result of a fetal personhood law enacted in 2021. The law, which granted personhood to a fetus from the moment of fertilization, was blocked in 2022. Brilliant expressed concern that if the legislature were to decide that abortion is murder based on said law, then even individuals traveling to other states could potentially be prosecuted.
“I don’t think that anybody could be charged with felony murder at this time, but depending on what happens with the personhood statute and whether there’s a ban, we’ll have to see,” Brilliant said.
She then referred to questions that people commonly have about involvement with individuals seeking an abortion, such as “What if I’m helping someone?” and “What if I’m not the person who is seeking this care?”
She clarified that “the court says that an accomplice must knowingly and with criminal intent participate, associate or concur with another person in the process of committing a crime,” and that “liability attaches to all persons who participate in the commission of a crime,” which can include tampering with evidence or interfering with an investigation.
Brilliant also mentioned conspiracy, describing it as when “the person who commits the crime and at least one other person agree to engage in illegal conduct.”
In other words, a conspirator would be somebody who promotes or assists in conduct — in this case, an abortion — knowing that said conduct is a crime and could potentially be prosecuted if future laws warrant it. In the 15 week ban, pregnant people may not be prosecuted for conspiracy; however, physicians can.
In the 1864 ban, conspiracy can apply to “any person, not just physicians,” Brilliant said.
If this seems confusing, Brilliant maintains that you are not alone, describing the state of the law as “a patchwork … nobody really knows what conduct constitutes something criminal or not.”
Since the panel was before the midterm elections, Brilliant concluded that a lot of future prosecution will be dependent on the results. In hindsight, since many positions in Arizona’s government flipped from red to blue, we may see current restrictions rolled back once new leadership is sworn in.
IVF and assisted reproduction law
Strickland concluded the panel by discussing abortion law in the context of assisted reproduction and the associated medical field.
Strickland stated that many challenges in regard to laws about abortion and IVF are because the language of the laws doesn’t align with medical terminology.
“For one is the term fetal heartbeat,” Strickland said. “This is a common term that people use … medically, it actually means the electrical activity that can be heard as the cells are forming. It’s not actually a heartbeat and that’s because the heart muscle doesn’t form until later in development.”
“The biggest [term] where there’s a misalignment is when we define weeks of pregnancy. Medicine can date pregnancies by either a self-reported last menstrual period or by an ultrasound. These dates can be different, and sometimes there’s a question about which one is used for the purposes of interpreting the law,” Strickland said.
Since the last menstrual period method is a self-reported method, Strickland explained that this is where period tracking apps could be used as evidence in a case against a pregnant person having an abortion.
Strickland also explained that there is no consensus in medicine as to when a pregnancy actually starts.
“This is actually information that’s not knowable to medical professionals if it occurs in the body [rather than in a lab] because it varies from case to case,” Strickland said.
With assisted reproduction, such as IVF, the embryo is created in a lab. The ability to track the age of said embryos is much more accurate outside of a human body as compared to traditional conception.
“We think of medicine and science as being very rigid and very exact, but it isn’t all the time,” she explained.
Strickland also raised concern about the impact of Dobbs on surrogacy. Gestational carrier contracts sometimes have provisions in which a gestational carrier agrees to have an abortion if requested by parents. However, under Arizona Revised Statute 13-3603.02 (B)(2) it is a class 3 felony to solicit an abortion for sex-selection, race-selection or because of a “non-lethal” genetic abnormality of a child.
Strickland said this raises complications because an abnormality is found non-lethal when “the child will survive at least three months after delivery … often it’s hard to know if the genetic abnormality that they’re facing will meet that definition of a lethal or non-lethal abnormality.”
She expanded on this, explaining that if it does become a crime to have an abortion, then many Gestational Carrier Contracts that already exist could be rendered unenforceable. Since one cannot contract to commit a crime, lines within these contracts mentioning abortion or potentially the entirety of these contracts could be voided.
The fetal personhood question put forth by Brilliant was expanded upon by Strickland in the context of IVF, as embryo destruction is common when more viable embryos are created than a family intends to use. Currently, Arizona doesn’t consider embryos outside of a womb being destroyed as an abortion, because it is not a product of a clinically diagnosed pregnancy.
“Right now, people do have full control of their embryos in Arizona, and they can discard them. But if the personhood law goes into effect, it’s very likely that they will be unable to discard their embryos,” Strickland said.
Lifetime storage of embryos can be costly, and it is unclear who the burden of paying for this storage would fall on if discarding them became illegal, especially if the embryos were created when it was legal.
In addition, Strickland discussed genetic testing on embryos outside of wombs. This testing screens out embryos that contain diseases such as cystic fibrosis to ensure the healthiest outcome when a pregnancy is achieved and brought to term.
“Right now, there are no prohibitions against doing genetic testing on embryos,” Strickland said. However, “information about that testing is not protected by physician-patient privilege.”
Strickland clarified that if the personhood law went back into effect, it is unknown whether genetic testing would be prohibited under Arizona Revised Statute 13-3603.02 (B)(2) in which only pregnancies with lethal genetic abnormalities are eligible for abortions or if IVF embryos would remain exempt.
Strickland ended her presentation with a discussion of the Safe Haven Baby Program. Under this program, babies under the age of 30 days old can be surrendered to any hospital, on-duty fire station or participating adoption agency or church. The infant must be surrendered by a parent or an agent of the parent. The program allows for no legal repercussions, assuming the infant is unharmed and placed in a properly marked location or handed to a qualifying individual within the stated establishments.
“I just wanted to share that information because I think it is really important for people to know that there is a safe place where if somebody is desperate and is in a situation where she just cannot care for a child … that there is a safe way for her to hand the baby over with no questions,” Strickland said.
Resources
If you or somebody you know needs reproductive healthcare, the Women’s Health Clinic within UA Campus Health offers a variety of services. In an email interview with the Daily Wildcat, representatives from the clinic confirmed they do not share any data regarding pregnancy tests, counseling or prescriptions.
“We offer comprehensive counseling regarding options for unplanned pregnancies, including continuation of the pregnancy, adoption, and termination. Counseling is confidential,” the Women’s Health Clinic representative said.
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