Arizona Doctors Can’t Be Prosecuted for Providing Emergency Abortions if They Act in ‘Good Faith,’ AG Says
Arizona doctors have the final say when deciding if a woman needs an emergency abortion, Attorney General Kris Mayes concluded in a legal opinion her office released Thursday. On Thursday, Mayes said the ultimate determination for what constitutes a medical emergency lies in the hands of doctors — and they can’t be taken to court over an abortion they provided in good faith.
Arizona Attorney General Kris Mayes joined Democrats and abortion rights advocates for a press briefing at the Arizona Capitol on April 9, 2024, shortly after the Arizona Supreme Court ruled that an 1864 near-total abortion ban is enforceable.
Legal Exceptions and the 15-Week Ban
The Grand Canyon State is currently under a gestational ban that prohibits abortions after 15 weeks, though the law includes exceptions for procedures performed to prevent a patient’s death or the impairment of a “major bodily function.” Concerned about how the threat of criminalization might cause doctors to delay care, a group of Democratic lawmakers requested that Mayes clarify the law’s exceptions, to help medical professionals better understand under what circumstances they can legally perform an abortion beyond the 15-week deadline.
Summary of Legal Parameters and Penalties:
- Gestational Limit: Abortions are prohibited after 15 weeks of pregnancy.
- Legal Exceptions: Prevention of death or avoidance of a substantial and irreversible impairment of a major bodily function.
- Criminal Penalty: Doctors face a class 6 felony, which may result in a prison sentence of between 4 months and 2 years.
- Professional Penalty: Violations could lead to a revoked medical license.
- Legal Standard: Physician’s "good faith clinical judgment."
Subjective Clinical Judgment and Medical Emergencies
The law states that an emergency abortion can only be provided based on a physician’s “good faith clinical judgment,” which Mayes pointed out has long been accepted as being subjective. “Whether a ‘medical emergency’ exists…hinges entirely on the treating physician’s ‘good faith clinical judgment’ that one exists,” she wrote. A doctor’s reasoning relies on years of training and experience as well as their interpretation of a specific patient’s condition. And every situation is unique, Mayes said.
The Two-Part Assessment Test
To arrive at that judgment, a doctor must complete a two-part test:
- First, the doctor should carry out an assessment of the patient using their clinical training and medical expertise.
- Then, the doctor must determine, based on an honest review of the information, that a medical emergency exists.
Protections Against Second-Guessing and Prosecution
“Absent proof of bad faith, nothing in the statute allows the physician’s judgment to be second-guessed after the fact, even if other physicians might have come to a different conclusion,” Mayes wrote. That means doctors can’t be prosecuted after the fact for abortions they provided past the 15-week mark unless there’s evidence that they didn’t act in good faith. Simply because other doctors or prosecutors disagree that an abortion was the right decision doesn’t allow for legal action against the doctor who provided it.
It’s enough, Mayes wrote, that the doctor honestly believed that denying their patient an abortion would have caused irreversible harm or led to the patient’s eventual death to justify the procedure. “Because the Legislature chose to focus on the treating physician’s mental state at the moment of her medical emergency determination, no prosecutor can second-guess a treating physician’s clinical judgment that an abortion was warranted, absent proof of bad faith.”
Regarding the immediacy of treatment: Mayes added, abortions intended to prevent the death of the pregnant patient don’t have an immediacy requirement, meaning that doctors don’t need to wait until the patient is at imminent risk of dying before performing an abortion. The law states that abortions beyond 15 weeks are allowed when pregnancy complications “necessitate the immediate abortion of her pregnancy to avert (the woman’s) death,” but it makes no mention of how near to death a woman must actually be to warrant that abortion.
Unlike in other states, where Republican lawmakers have made the doctor’s judgment contingent on a comparison with the hypothetical judgment of other doctors in similar circumstances, Arizona Republicans left the decision-making up to the actual doctor in the room at that moment, Mayes concluded in her analysis.