PHOENIX (3TV/CBS 5) — Abortions are now banned across Arizona except to save the mother’s life. And the latest court ruling in Pima County last week leaves a lot of gray areas for pregnant women and providers to navigate. There are a small handful of procedures that aren’t technically considered abortion. Even so, they trigger the same legal intervention for providers trying to sort- out liability for criminal prosecution. We’re talking about things like a D & C after a miscarriage or fetal complications where a doctor says the baby won’t be viable outside the womb.
Extremely personal, private medical decisions to induce and expedite the inevitable heartbreak of losing a child are no longer up to just doctors and parents. As we found out, it’s become a legal landmine for families and providers.
We met up with Isabel, a Valley wife and mother when she was 36 weeks along. She was carrying a little boy, and an unthinkable weight. “His body is about two months behind where he should be and his head is about a month ahead of where he should be,” Isabel said. Genetic testing after abnormalities in the early ultrasound around four months confirmed her son had a condition called Trisomy 18. At least 95% of fetuses are miscarried or stillborn.
“Instead of picking out onesies, we picked out an urn,” Isabel said.
It was important to Isabel to carry him as long as she could. “I couldn’t not try for him. He was my son no matter what and I’m his mom,” Isabel said. As the weeks wore on, the fluid around his brain made it less likely they’d have a live birth. All she wanted was to hold him before he passed.
She says her doctor consulted with a panel of physicians and even got approval from the ethics team at St Joseph’s Hospital and Medical Center before scheduling her induction. She says she and her husband packed their bags and were driving to the hospital, preparing to deliver and say goodbye to their son, when they got a phone call telling them not to come.
“They proceeded to tell us, ‘the legal team told us that we couldn’t deliver, that we would have to wait an additional two weeks from then,’” Isabel said. At a meeting with hospital administrators the next morning, she says they told her people could go to jail or lose their license if any procedure even looks like a termination. “It was not ever the intent to end his life,” Isabel said. “This has caused a huge emotional toll on myself and my family. The pain has been exponential with having to deal with the red tape.”
Hospital, prosecutors respond
St. Joe’s declined an on-camera interview, sending us a statement saying:
Valley attorney Mark Kokanovich, with Ballard Spahr, says no hospital wants to be a test case. “When the law is uncertain, lawyers will frequently recommend no action. Because anyone who’s assisting in these abortions can be prosecuted under these laws,” he said. That means even legal teams advising hospital groups and providers.
State Attorney General Mark Brnovich went on record before the Sept. 23 ruling, saying he would not prosecute any abortion cases until the courts ruled on his injunction to reinstate the broader abortion ban from 1901. Knowing that, Isabel even tried reaching out for further guidance and assurance from the Maricopa County Attorney’s Office. “The idea that you would be forcing one of these people to reach out to their local prosecutor to say, ‘Does my situation fall under a case that you would prosecute,’ is really untenable,” Kokanovich said.
And not just for families like Isabel’s. “Anytime there’s a miscarriage, there’s a potential criminal investigation,” Kokanovich said. He says Arizona’s new abortion law criminalizing medical choices only means more attorneys overriding doctors’ professional advice and directives, not to mention the mother’s mental health and wellbeing. “He’s alive. I’ve always wanted him alive. I would love if he would recover miraculously from this, but these are end of life decisions we’ve had to make for our child,” Isabel said. And not being able to honor that on their terms only added to the weight of her grief.
St Joe’s let Isabel induce at 37 weeks once they got into the 10th month. Baby Liam died three days later. “Chalking it up to poor timing, it’s just not acceptable,” Isabel said.
They considered going out of town but, not knowing if their son would live for hours or days, didn’t want to be away from their family here. They also have a 4-year-old daughter at home. We reached out to other local hospital groups, but none responded. The attorney general and MCAO were unable to give any concrete clarity, which is why the governor’s now considering calling a special session to ask lawmakers to weigh in.
Katie Conner, a spokeswoman for the Attorney General’s Office, tells us county attorneys have primary jurisdiction for enforcing the statue, releasing a statement saying:
“The Attorney General’s role was to seek clarity on this important issue. Earlier this year, the Arizona Legislature passed and Governor Ducey signed SB 1164, the 15-week abortion ban, which included language specifically providing ARS 13-3603 was not repealed. The Superior Court judge agreed – and noted that in her decision. Accordingly, ARS 13-3603 is now in effect. If Arizonans disagree with the law, they should contact their legislators or the governor.”
Maricopa County Attorney Rachel Michell’s office tells us: “Unfortunately, our office is unable to comment on hypothetical situations. We are also not in a position to provide legal or medical advice. Law enforcement is the investigating agency that would determine if there is probable cause of a crime being committed. If a case was submitted to this office, we would review the facts and evidence based on the submitted statute. As the County Attorney stated earlier this week, guidance from either the legislature or courts is needed before potentially charging cases involving an abortion. If we do not have resolution and a case is submitted, we will seek guidance from the courts.”
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