If Roe v. Wade is repealed, we need prosecutors who won’t interfere in women’s health




Photo by Jordan Uhl | Flickr/CC BY 2.0

Abortion is not a crime. But if Roe v. Wade is overturned, outdated laws that are still on the books in Arizona could go back into effect to make abortion illegal. 

A state law passed in the early 1900s says that a woman who has an abortion should be “punished by imprisonment in the state prison” for a minimum of one year unless the abortion was “necessary to preserve her life.” This law is currently unenforceable only because of Roe v. Wade.

But Roe now faces a real threat with President Donald Trump nominating a third judge to the U.S. Supreme Court after promising to only appoint those who oppose abortion. That is why state and local elections can make all the difference in ensuring reproductive freedom is protected in Arizona regardless of the outcome on the national level. 

The Maricopa County attorney, for instance, has tremendous discretion in criminal cases, deciding what charges people face or whether they will face charges at all. The way your county attorney chooses to interpret and apply the law sets the standard for every prosecutor in that jurisdiction. 

If abortion becomes illegal in Arizona, the county attorney could decide to charge patients with a crime for having an abortion and for other decisions related to reproductive care. Indeed, even a miscarriage could be deemed suspicious and be subjected to a criminal investigation. On the other hand, the county attorney could also choose to not prosecute people for seeking and obtaining abortion care. 

One candidate for Maricopa County attorney, Julie Gunnigle, has said she would not prosecute abortion if Roe were overturned. The current county attorney, Allister Adel, has refused to make the same commitment. 

Instead, Adel told the ACLU of Arizona in a candidate questionnaire that it would be her “ethical and legal obligation to enforce the law” if Roe were overturned. 

This is simply not true. 

Prosecutors use their discretion every day to not prosecute certain crimes. For example, Adel recently announced that she will not prosecute people for marijuana possession if they pay for and obtain a medical marijuana card after their arrest. She could show the same compassion to people who make an intimate health care decision for themselves and their families. She is simply saying she will choose not to.

The criminalization of abortion is not merely a hypothetical future proposition. Even with Roe still in place, overzealous prosecutors across the country have used a variety of state laws to prosecute those suspected of ending a pregnancy themselves or helping others do so: Since 2000, 21 such arrests have been documented so far.  As recently as 2015, a woman from Indiana was convicted for the conflicting charges of feticide and child neglect. She was sentenced to serve 20 years in prison before her conviction was overturned in 2016.

Being arrested, charged with a crime, and spending time in prison is traumatizing anytime it happens. That trauma will be compounded for those who lose access to basic health care and are then forced to suffer the indignity of having a prosecutor pry into their pregnancy. Just like every other aspect of the criminal legal system, this will have a disparate impact on Black, Indigenous, people of color. Their decisions and behavior during pregnancy are already subject to higher levels of surveillance and punishment, and that trend will be exacerbated should abortion become illegal again.