AG's Refusal Can't Stop Enforcement of AZ's "Draconian" Abortion Law

Legal Challenges Likely; Even Special Prosecutors and Private Enforcement Possible
WASHINGTON - April 10, 2024 - PRLog -- Although Arizona Attorney General [AG] Kris Mayes has publicly vowed not to enforce the State Supreme Court's ruling reviving an 1864 law that prohibits abortions except to save a mother's life, there are several ways the statute could still be enforced, argues public interest law professor John Banzhaf.

AG Mayes called the ruling "unconscionable and an affront to freedom," and said that "as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state."

She also pointed to an order by Arizona Governor Katie Hobbs giving all power to enforce abortion laws to the state attorney general, thereby preemptively barring any of the state's 15 county attorneys from using Arizona's abortion laws to take a doctor to court.

But several county attorneys, including Yavapai's Dennis McGrane, have indicated that the are considering a legal challenge to Mayes' decision and Hobbs' order.

However, even if legal challenges by counties are unsuccessful, there are other ways to help enforce the statute, notes Banzhaf.

One is for county attorneys, or others who want the old law to be followed, to petition judges to appoint special prosecutors to file and prosecute such cases where the AG has refused to do so, thereby nullifying the Supreme Courts' ruling.

Professor Banzhaf made several such filing to help obtain the special prosecutors which helped drive former president Richard Nixon from office, and another court order which would have required the appointment of a independent counsel to prosecute offenders in the "debategate" situation.

Even private enforcement of the Arizona statute might be possible, Banzhaf suggests.

For example, if the biological father learns that his wife or former lover is planning to have an abortion, he can sue for an order preventing the procedure by relying on the Supreme Court's decision that makes such an abortion a serious crime.

Doctors who risk performing abortions in Arizona might also fear a legal action brought by the biological fathers.

They might even fear law suits if no prior legal action was brought to enforce the criminal statute, or if such attempts to enforce the criminal statute pre-abortion were brought but not successful.

Banzhaf, in a comprehensive study of the effects of the anti-abortion movement, notes that a doctor who was sued for prescribing abortion pills in Arizona had her annual medical malpractice insurance rate more than double from $32,000 to $67,000.
Banzhaf, How Fetal Personhood and Fetal Estate Lawsuits Threaten Abortion Rights (   @profbanzhaf


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