Lurking Behind Roe

Gordon noted in his written ruling that there was no third party in the Rasmussen case--she had no children and her three siblings had agreed with the decision of the doctor and the public fiduciary to terminate treatment.

But in an abortion case, Holohan says, the court would have to decide whether the fetus is a legitimate third party whose interests also have to be considered.

"What you're really talking about in this whole thing," says the former justice, "is competing interests: a woman's right to treat her body as she wants as opposed to when the fetus has a right to be protected."

Skelly argues that the protection of abortion as a matter of privacy could not possibly be what the framers of the Arizona Constitution had in mind in 1912. He points out that Arizona has had anti-abortion laws dating back to Territorial days, with the roots of the current--but unenforced--statute traced directly back to a 1901 law.

The laws still on the books in Arizona make it a felony for anyone to perform an abortion unless it is necessary to save the life of the mother. The penalty is from two to five years in prison. Another law makes felons of women who solicit an abortion, with a similar penalty. Finally, there is a statute that makes it illegal for anyone to advertise abortion services.

If Roe is overturned, arrests for violation of Arizona's existing anti-abortion laws are likely to follow. At that point, one of two things likely will happen. A doctor charged with performing an abortion will argue that the anti-abortion laws violate rights granted by the Arizona Constitution. The Rasmussen case would be cited as a precedent. It could take years for such a case to wind its way through the court system.

A different scenario is likely if a woman is charged with seeking an abortion or a prosecutor attempts to stop a pregnancy from being terminated. Because of the limited time available--and the fact that an abortion becomes more dangerous the longer a woman waits--lawyers would seek an immediate injunction from the courts, barring police from enforcing the law. That could result in a state Supreme Court hearing on the question within days.

Sweet says she has tried for several years to get lawmakers to take the anti- abortion statutes off the books. But she has had no takers.

"Very few people are willing to go out on a limb on this one," she says, because they would be risking the wrath of the politically active anti-abortion groups "over an issue that, at least today, is moot."

Anyway, Sweet says, if the U.S. Supreme Court overturns the Roe decision, the pro-choice forces in Arizona may have a better chance of arousing the public if performing--and seeking--an abortion is a criminal offense. "We might get more mileage," she says, "by having a law on the books that is unconscionable, like throwing a woman in jail."

"What I see," says Skelly, "is the potential that, despite the overturning of Roe v. Wade, the Arizona court could still declare abortion to be legal."

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