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There are two laws that might hold sway in Arizona — one from 1864 and one from March 2022. The older one threatens abortion providers with jail time; the later one threatens them with fines and loss of their medical license. Neither punishes the woman.
Hamadeh said he will always interpret laws as written.
Enforcing either law would likely fall on county prosecutors, but the attorney general has the flexibility and resources to prosecute offenders directly.
In 1864, almost 50 years before Arizona officially became a state, the territory passed a law that said anyone who helps a woman miscarry can be put in jail. More than 100 years later, this law has become a central issue in the state’s attorney general race.
Democratic candidate Kris Mayes claims her opponent, Abraham Hamadeh, would target women and doctors for abortion law violations.
"My opponent, has affirmed he will indeed lock up doctors, nurses, pharmacists, etc. and punish women for abortion, with zero exceptions for rape or incest," Mayes tweeted Sept. 25.
Hamadeh’s campaign called this statement a "blatant misrepresentation."
"Abe has never said he supports the (abortion) ban outright, only that the attorney general has a duty to defend the law regardless of their personal opinion," Hamadeh’s campaign said in an Oct.14 emailed statement, echoing an earlier tweet.
Hamadeh has said that he is pro-life. In March, the state passed a law that bans abortions after 15 weeks, with protecting the mother’s life and physical health as the only exception. There are no exceptions for rape or incest.
Pending court rulings, it is unclear whether Arizona will follow the 1864 version, or the one passed in March. But in either case, health care providers are at risk, and pregnant women are not.
The pre-statehood law criminalizes any action "procuring a misscarriage" as an offense that can put Arizonans in prison for two to five years. Jenn Piatt, an Arizona State University research scholar specializing in public health law, said the law would imprison only people who provide abortions.
"Generally speaking, the 1901 pre-statehood law would subject health care providers to potential criminal sentences, if it eventually is found enforceable," Piatt said. "The way the law is drafted indicates that the law does not specifically aim at targeting a pregnant woman or pregnant person for prosecution."
The 1864 law, which was codified in 1901, faces legal challenges. Although a Sept. 22 county Superior Court ruling allowed the pre-statehood law to take effect, the ruling was blocked two weeks later after the Arizona Court of Appeals accepted a stay filed by Planned Parenthood Arizona.
Arizona’s more recent abortion law also has penalties for physicians, but rather than specifying jail time, the law punishes them with a $10,000 fine and the removal of their medical license. There is no exception for rape or incest.
The law specifically says the pregnant woman will not be prosecuted.
Hamadeh’s campaign said Mayes is wrong to focus on the penalties because enforcing the law would fall outside the authority of the attorney general’s office.
"The attorney general does not have primary jurisdiction to enforce the abortion criminal provisions," Hamadeh’s campaign said in a statement. "Instead the authority falls on the county attorneys."
That generally reflects the state’s rules, Piatt said.
"The Arizona attorney general’s position on an abortion ban may differ from county prosecutors in Arizona," said Piatt. "Those county prosecutors retain their own prosecutorial discretion and may choose either to bring or not to bring specific charges."
However, Piatt noted that attorneys general can negotiate a shared approach with the counties, as they hold "supervisory authority" over county attorneys.
Attorneys general also have their own prosecutors who could step in, especially if a criminal activity crosses county lines. That could occur, for example, if a pregnant woman lived in one county and the abortion provider lived in another.
Mayes said that Hamadeh said he would "lock up doctors, nurses, pharmacists" and "punish women for abortion."
Hamadeh has said he would enforce state law, whatever it may be. Whether the abortion law from 1864 or the one passed this year prevails, those who assist in performing abortions face criminal penalities. Under the older law, providers risk imprisonment; under the 2022 law, they don’t.
Under neither law would the pregnant woman herself face that risk.
Part of Mayes’s claim is accurate, but it ignores important information. We rate this claim Half True.
Kris Mayes, Twitter, Sept. 25, 2022
Abraham Hamadeh, Twitter, Sept. 25, 2022
Arizona State Legislature, Introduced version of SB 1164, Oct. 19, 2022
Arizona Revised Statutes, "13-3603 definition; punishment," Oct. 19, 2022
Arizona Revised Statutes, Title 41-193, Oct. 27, 2022
Arizona Attorney General Mark Brnovich, "About the Office of Attorney General," Oct. 30, 2022
Arizona Attorney General Mark Brnovich, "Criminal Division," Oct. 30, 2022
Press release, Planned Parenthood Arizona, Oct. 7, 2022
Cornell Law School Legal Information Institute, "stay," Oct. 19, 2022
Email exchange, Abe for AG, Abraham Hamadeh’s campaign email, Oct. 14, 2022
Email exchange, Jenn Piatt, research scholar at Arizona State University, Oct. 18, 2022
Emory Law Journal, "Discretion Versus Supersession: Calibrating the Power Balance Between Local Prosecutors and State Officials," 2018
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