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Kris Mayes says Arizona Attorney General's Office is working on a plan to fight abortion ban

Arizonans will soon be subject to the most extreme abortion ban in the country.

The state Supreme Court upheld an 1864 abortion ban Tuesday that will effectively outlaw the practice in our state — except to save the life of the pregnant person. Since Roe v. Wade was overturned in June of 2022, there has been confusion here about what abortion law the state would follow — a 15-week ban enacted by Gov. Doug Ducey or a near-total abortion ban that was adopted before Arizona was a state.

The majority of the Supreme Court justices settled that question on Tuesday, sparking outrage among many and garnering national attention as abortion policy once again shifts in a post-Roe world.

The Alliance Defending Freedom argued on behalf of the state.

“We are incredibly grateful for the Arizona Supreme Court’s ruling today, a tremendous victory for unborn children and their mothers,” attorney Jake Warner said. “The lower court’s ruling misinterpreted state law to allow abortion in circumstances where the Arizona Legislature did not allow it, and it prevented officials from fully enforcing the state’s pro-life law to protect unborn children.”

Planned Parenthood said Tuesday it will continue to offer abortion services for at least the next two months. And many expect further legal challenges.

“We don’t know what Planned Parenthood or its allies will do moving forward, we don’t expect those challenges to prevail,” Warner added. “But we hope that these protections will extend to states around the nation.”

A visibly shaken Gov. Katie Hobbs pointed to the November ballot in her response.

“To the people across Arizona who are concerned about the future of abortion rights in our state, who are worried about their bodily autonomy, who don't want to see the freedom of their wives, sisters and daughters restricted, you can make your concerns known at the ballot box, and I encourage you to do so,” she said.

There is an initiative gathering signatures now that would enshrine abortion rights in the state constitution.

The abortion ban won’t take effect immediately. Legal experts say there should be a 45- to 60-day delay. But, whenever it takes effect, Arizona Attorney General Kris Mayes says she will not prosecute any doctor or woman under the Civil War-era law. Warner challenged her power to do that Tuesday.

“It’s our understanding that her authority does not extend to dictating the prosecutorial decisions of county prosecutors,” he said. “So in our view, county prosecutors are free to enforce the law as written.”

The Show spoke with Mayes more about that assertion and her reaction to the Supreme Court’s decision.

Full interview

KRIS MAYES: Well, this is an absolutely awful and devastating and frankly cruel decision by the Arizona Supreme Court. I think it is likely the worst decision this court has ever made in its long history. And this morning, Arizonans are waking up to the reality that this court has plunged us back to 1864 and an abortion ban that is total, has no exceptions for rape or incest and was passed when Arizona wasn’t a state, women couldn’t vote and the Civil War was still raging.

So it's a bad day, but we’re going to fight. We’re going to continue at the AG’s office to fight this decision. We are looking actively. We started as soon as this decision came down to look at legal avenues to prevent it from ever actually being implemented.

And then of course we’ve got the ballot initiative coming up in November. But we have a period here of months where I think the Supreme Court just put women’s lives in danger.

LAUREN GILGER: So tell me, what are your biggest initial concerns? And then I want to talk some more about enforcement.

MAYES: Yeah. I mean, my biggest initial concerns, frankly, surround doctors and nurses and pharmacists who are potentially putting their licenses on the line to provide care. I mean, we have a 45- to 60-day period where this law will not go into effect. It has to do with another decision. But after two months, this thing could go into effect.

And my concern would be for them. And of course, my concern is with all of the women out there who want to have an abortion or could have a complication with their pregnancy and must have an abortion, and they really are going to need to start thinking about alternatives if our abortion clinics are not going to be operational.

Aas you know, I have said that I will not prosecute any woman, doctor, nurse, pharmacist or a health care professional for doing an abortion. But there are other county attorneys out there. We don’t know exactly what they’re going to try to do. I’ve said I’m going to do everything I can under my supervisory authority over them to prevent them from prosecuting doctors and health care professionals.

But it’s really, the truth is the Supreme Court threw Arizona into a state of chaos when it comes to reproductive care.

And then I don’t think we can go too far without stating the obvious here, which is that the United States Supreme Court and Donald Trump, who appointed the justices that overturned Roe v. Wade and gave us Dobbs, are the ones at fault here, ultimately, because they’re the ones that allowed this to happen across the country. They’re the ones that allowed the Arizona Supreme Court to hand down this insane, unconscionable, outrageous, and frankly enraging decision.

GILGER: Right. So you have said you will not prosecute anyone under this law, this is because Gov. (Katie) Hobbs put the power to prosecute abortion under your control last year, took it away from county attorneys. But as you’re referring to there, this could be challenged by a county attorney in the state. Do you anticipate a challenge to that?

MAYES: You know, I don’t know. It’s a great question. I’ve had conversations with the county attorneys in the past about this issue. I’ve made it clear to them that if they try — if they take one inch forward in trying to prosecute a doctor or nurse, a pharmacist or woman — I will challenge them in the courts. I will do everything I can to prevent them, and I will do so under my statutory supervisory authority as well as that executive order.

Even if the governor hadn't issued that executive order, I have supervisory authority over the county attorneys. It’s not something I take lightly. It’s not something that I want to do. But I will do it if I have to, to prevent a rogue conservative or far right county attorney from doing this.

And we don’t know. They haven’t all been clear about what they intend to do, including Yavapai County Attorney Dennis McGrane. And frankly, (Maricopa County Attorney) Rachel Mitchell has not said that she won’t prosecute doctors under the 1864 law.

GILGER: So even if your office isn’t prosecuting anyone under this law, I wonder what you anticipate in terms of the provider landscape going forward. Like, it’s hard to imagine providers being willing to carry out abortions that are explicitly illegal under this law. What are you hearing from providers at this point?

MAYES: Yeah, well, I think what we’re hearing from them is a lot of uncertainty, and I think they are in the process right now of regrouping. I am going to be having some conversations with them.

And you know, I feel for them so very much. They took an oath to save lives. They are there to provide reproductive care and abortion to women who seek it.

And yet now they have this court that has basically criminalized this and has criminalized what they do. And so I feel for them very much.

We’re going to be in conversations with them. I will say that my office is actively — today, tomorrow and the next day, the day after — putting together a plan. We’re not ready to announce the details of that plan, but we’re going to have a very concrete plan to help those providers, to help women in Arizona seek an abortion when they need one.

I’ve already had calls and text messages from across the country, from my fellow AGs, attorneys general, in other states, offering their help to Arizona women. And I had a call from the vice president of the United States offering the help of the federal government.

This is the most extreme abortion ban in the country. The most extreme abortion ban in the country was just imposed on the people of our great state. And the states around us are reacting. They’re outraged as well. And they want to know how they can help.

GILGER: We also just watched the Alabama Supreme Court rule that IVF is essentially illegal, that embryos should be treated as people. Florida’s supreme court just allowed a six-week abortion ban to go into effect. I wonder, lastly, how you see this decision here in Arizona playing into the national landscape on abortion rights in this country in 2024?

MAYES: It did just enter the pantheon of the most egregious and outrageous abortion bans across the country. And I think we have to look at it and its potential impact on IVF as well. That’s something my office is going to be doing over the next few days. And what’s sort of obviously our main focus is trying to fight this decision and to try to restore reproductive rights to women in Arizona.

But if you want to look at this politically, I think the Republicans are going to reap what they just sowed, and they’re going to reap that in November when the people of Arizona pass a ballot initiative to enshrine abortion rights in our Constitution.

I think it’s entirely possible they will reap what they sowed in the form of a Democratic Legislature, a flipping of the Legislature. And they are certainly going to reap what they sowed in the (U.S.) Senate race. They made a huge miscalculation here, and they’re going to pay a high political price for it.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.