Doctors can’t be prosecuted for providing emergency abortions if they act in ‘good faith,’ AG says

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. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Arizona doctors have the final say when deciding if a woman needs an emergency abortion, according to Attorney General Kris Mayes. 

The Grand Canyon State is currently under a gestational ban that prohibits abortions from being performed after 15 weeks. The only exception is for procedures performed to prevent a patient’s death or the impairment of a “major bodily function.” Doctors who violate the law’s mandates can be punished with a class 6 felony, which may result in a prison sentence of between 4 months and 2 years, and certainly carries with it consequences for medical licenses.

Concerned about the threat of criminalization and how it might lead doctors to delay care, a group of Democratic lawmakers called on Mayes to clarify the situations under which medical professionals can offer an abortion. On Thursday, the state’s top prosecutor said the judgment for what constitutes a medical emergency lies in the hands of doctors — and they can’t be taken to court over the care they provided in good faith. 

“As long as those requirements are met, and 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 in a formal legal opinion. 

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. A doctor’s reasoning relies on years of training and experience as well as their interpretation of a specific patient’s condition. Every situation is unique, Mayes said. 

“Whether a ‘medical emergency’ exists…hinges entirely on the treating physician’s “good faith clinical judgment” that one exists,” she wrote.

And the conclusion that a woman is facing a medical emergency that warrants an abortion doesn’t have to be agreed with by other doctors or prosecutors after the fact. Nor does the danger of a woman’s death have to be imminent. It’s enough, Mayes wrote, that a doctor honestly believes that denying their patient an abortion will cause irreversible harm or lead to the patient’s eventual death to justify the procedure. That, Mayes said, means that women don’t need to wait until they’re sufficiently at risk of dying to receive an abortion. 

“Nothing in the statutory language requires the treating physician to delay providing an abortion as necessary medical care until, for instance, the patient is in sepsis, hemorrhaging, or otherwise at death’s door,” she wrote.

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