A Guide to Rachel Mitchell’s Wavering Position on Abortion Prosecutions

County Attorney Rachel Mitchell has repeatedly contradicted herself on her position on abortion-related prosecutions.
County Attorney Rachel Mitchell has repeatedly contradicted herself on her position on abortion-related prosecutions. Katya Schwenk
On September 27, County Attorney Rachel Mitchell posted a brief video to Facebook. Maricopa County's top prosecutor looked at the camera and made a promise that she had avoided for months: "I want the community to know that I will not prosecute women for having abortions," she said. "Likewise, I will not re-victimize survivors of rape, incest, or molestation."

The statement was surprising. Mitchell had spent months refusing to directly answer whether she would prosecute women who have abortions. She even criticized Julie Gunnigle, the Democrat challenging her in the upcoming election, for already adopting the very same position Mitchell was now taking.

It's not clear whether Arizona law allows for people to be prosecuted for obtaining abortions. Currently, Arizona's sweeping territorial-era ban was reinstated in late September before it was blocked again. The state does have a 15-week abortion ban that is currently in effect. Both laws allow for criminal charges for those who provide abortions.

With an abortion ban in place, all eyes are on Mitchell — who now could file charges against those who provide or assist in the procedure. The Maricopa County Attorney's Office is one of the largest prosecutorial agencies in the nation and handles the lion's share of criminal cases in Arizona. It has become a focal point for activists concerned about abortion in the state.

Mitchell has given a variety of answers over the course of her campaign to questions about abortion-related prosecutions and how she will enforce state abortion law.

Gunnigle has centered her campaign on the promise that she will not prosecute people who get abortions or those who provide them. On this issue, at least, Gunnigle has been consistent. In September 2020, during her first campaign for county attorney, she promised to "not prosecute people for their private health care choices," including abortion providers. In March, she told KTAR she would not prosecute abortion cases under the state's 15-week ban or any other law that was revived after the fall of Roe v. Wade. She has remained consistent through numerous debates and interviews, and again reiterated her position to New Times on October 3.

When New Times reached out to the county attorney's office to ask Mitchell to elaborate on her position, spokesperson Jennifer Liewer wrote that Mitchell's statement "stands as to her position" and that she would not be available for an interview.

"We have no cases submitted to our office for review, but should that occur, we will seek guidance from the courts as to which laws the office should use to review a case," Liewer added. Mitchell's campaign did not reply to separate inquiries.

In light of Mitchell's recent change of heart, here's a timeline of her flip-flops on abortion.

April 29: 'Perhaps' Prosecutorial Discretion Should be Used in Cases Involving Rape or Incest

Three days after Mitchell was appointed as county attorney, she sat down with Brahm Resnik of 12News. Asked about abortions, Mitchell quickly emphasized her decades of experience as a sex crimes prosecutor, during which time, she said, she worked with victims of rape and incest.

"Those situations, perhaps, are where prosecutorial discretion could be exercised. Because I do look at that and say, 'That is a very tragic situation,'" she said.

A week or so later, Mitchell again spoke with Resnik, and this time elaborated on her position. She emphasized again her plan to use discretion in cases that involved rape or incest. She noted that she did not believe the law even provided for charges to be brought against a woman seeking abortion — "It's for the doctors," she said — but added, "If it happens, obviously I can use discretion as to whether there's a reasonable likelihood of conviction."

May 31: Mitchell Doesn't Believe Law Will Allow Prosecution of People Seeking Abortions, But Would Pursue Doctors

In an interview with ABC15, Mitchell said for the first time that she doesn't think Arizona law, as written, will target people seeking abortions. This is a point of disagreement between Mitchell and Gunnigle. The territorial-era ban, unlike the more moderate 15-week ban, does not have an immunity provision for women who self-administer their own abortions. That law is not in effect at the moment, but the courts may ultimately reinstate it.

"I read the law as, yes, a person could be prosecuted for self-administration," Gunnigle told New Times. "While I'm delighted that's the way she's reading the law, it gives me absolutely no faith."

As for providers, though, Mitchell voiced her intent to prosecute abortion cases. "We would look at each case that came in. What I'm not going to do is sit here and say I'm not going to follow the law in that regard. That is my role," she said.

June 26 : 'Absolutely' Stands by Statements She Would Use Discretion in Cases of Rape or Incest

In a 12 News interview two days after the fall of Roe v. Wade, Mitchell again rehashed her views on abortion. She said she stood by her April comment to Resnik that she would use discretion in rape or incest cases. "I do think there's a difference between talking about looking at the specific circumstances of a specific case, where it may be a victim of rape or incest, and talking about refusing to follow the law, wholesale," she said.

Mitchell then wavered on what kind of process she would use when prosecuting people who provided or assisted in an abortion involving a rape or incest victim. She would not "re-victimize" these people, she said, but at the same time, she vowed to "still look at whether there's a reasonable likelihood of conviction" in "each individual case."

June 28: Backtracks on Rape or Incest Cases: 'My Role Is to Enforce the Law'

Two days after she claimed to "absolutely" stand by her statements promising discretion in rape or incest cases, Mitchell backtracked when asked pointed questions at a June 28 news conference. Asked whether victims of sexual assault would have to submit a police report to avoid prosecution — or for their doctors to avoid prosecution — Mitchell declined to give any specifics.

"I have to look at each individual case. I think it would be really irresponsible as a prosecutor to sit there and say, 'Well, here's what I'm going to do, and here's exactly what I'm going to require,'" she said. Mitchell then added, "My role is to enforce the law and to look at cases as they come to me, make a decision, and follow the ethical charging standards we apply to every case, which is the reasonable likelihood of conviction."

A reporter then asked how Mitchell planned to use discretion in rape or incest cases under a law that made no exceptions for rape or incest. "What I'm saying is that I'm going to look at each situation. And since the charging standard is a reasonable likelihood of conviction, I have to look at what a jury is likely to do," Mitchell said.
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Julie Gunnigle, a candidate for county attorney, has promised not to prosecute any abortion-related laws.
Ash Ponders Photo

September 9: It's 'Not Appropriate' to Prejudge Cases Involving Rape Victims or Their Doctors

Mitchell and Gunnigle faced off in a debate for the first time on September 15 in an event hosted by 12News. The question of abortion was quickly raised. Asked whether she would prosecute telemedicine abortion providers, Mitchell deflected. "I feel like it's inappropriate for me, as a prosecutor, to say, without looking at a case, here's the decision I'm going to make," she said.

As the debate came to a close, Gunnigle asked Mitchell a pointed question: "I still want to know when it will be in the interest of justice, ever, to prosecute a pregnant rape victim or her doctor for receiving an abortion," she said.

Earlier Mitchell had claimed she would "absolutely" not re-victimize any rape victims. In response to Gunnigle, though, Mitchell said: "Is there anything off limits for you? If you get the county attorney position, you're going to raise your hand and take an oath to uphold the law. And you have already prejudged an entire segment of cases and said, I'm not going to do it, sight unseen. That's not appropriate."

September 15: It's 'Not Responsible to Say' if She Would Prosecute Abortion-Related Cases

At a subsequent debate hosted by Ted Simons of Arizona Horizon, Mitchell again insisted that Gunnigle's stance on abortion was wrongheaded. Asked whether or not she would pursue charges for violations of abortion laws in Arizona, Mitchell said, "I don't think that's responsible to say." She added that she would evaluate each case that came in front of her. (Gunnigle said that she would not prosecute, regardless of the law.)

"I'm keenly aware of how emotional and difficult this situation is," Mitchell said of abortion cases. Then she added, "I'm going to look at those, because it's my responsibility, like I am every other case. … I'm not going to announce in advance that I'm not going to follow a law because I don't like it."

September 27: Promises She 'Will Not Prosecute Women for Abortions'

Four days after a Pima County ruling reinstated Arizona's territorial-era abortion ban — which makes it a crime to provide or assist in any abortion, except in cases where the mother's life is threatened — Mitchell released this video statement.

"I want the community to know that I will not prosecute women for having abortions, and no statute even suggests a woman will ever be prosecuted for her decision," she said. "Likewise, I will not re-victimize survivors of rape, incest, or molestation. … False statements being made about the law and my position in order to sow fear for political gain are simply irresponsible." She repeated this position in an October 4 interview with the Arizona Republic.

She remained mum about how she would approach clinicians — who are explicitly targeted by the law, unlike people who undergo the procedure.

Gunnigle said that she believed Mitchell's statement to be a result of polling that showed that her position on abortions was "incredibly unpopular." Polls show that the majority of Arizona voters want abortion to remain legal in at least some cases.

Gunnigle noted that Mitchell had dodged the question many times before, including at debates between the two. "Had she believed that the law did not apply to patients, [the debate] would have been in the time to say so. Or in any of the press conferences she's had," Gunnigle said.

But Mitchell did not.
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Katya Schwenk is a staff writer for Phoenix New Times. Originally from Burlington, Vermont, she now covers issues ranging from policing to far-right politics here in Phoenix. She has worked as a breaking news correspondent in Rabat, Morocco, for Morocco World News, a government technology reporter for Scoop News Group in Washington, D.C., and a local reporter in Vermont for VTDigger. Her freelance work has been published in Business Insider, the Intercept, and the American Prospect, among other places.
Contact: Katya Schwenk

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