Attorney General Mayes Issues Opinion Clarifying Arizona Abortion Law as it Relates to Medical Emergencies

PHOENIX – In a press conference this morningAttorney General Kris Mayes, alongside medical providers, today issued an opinion clarifying Arizona abortion law as it relates to medical emergencies. 

"As the top legal officer in this state, let me be perfectly clear: Arizona law does not allow for the prosecution of a treating physician who exercises their clinical judgment in good faith to provide an abortion under the medical emergency exception. Full stop," said Attorney General Mayes. "I have said it before and I will say it again today: I will not prosecute any physician, nurse, doctor, or pharmacist under our state’s abortion laws. I am making it clear to all county attorneys that the law does not allow you to prosecute medical providers acting in good faith, according to their clinical judgment, when providing abortion care in medical emergencies."

When does a “medical emergency” exist under the definition in A.R.S. § 36-2321(7), allowing doctors to provide an abortion?

The text and relevant legal authorities are straightforward and clear about what this means.  To comply with the medical emergency exception in state statute, the treating physician must do two things:

  • Exercise clinical judgment: This involves applying personal knowledge, training, experience, and discernment to the facts in light of the patient’s unique circumstances and other medically relevant considerations.
  • And secondly, they must determine in good faith that, based on clinical judgment, either “a condition … so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death,” or “a delay [in providing an abortion] will create serious risk of substantial and irreversible impairment of a major bodily function.”

Good faith means an actual and honest belief, without malice or intent to deceive. Once a treating physician forms a good faith clinical judgment that one of these circumstances is satisfied, the statute allows her to perform an abortion immediately, and he or she need not wait for the patient to deteriorate or inch closer to death.

This clinical judgment that a “medical emergency” exists cannot be second-guessed after the fact and cannot be prosecuted under A.R.S. § 36-2322(A)-(B)—or any other abortion law with the same “medical emergency” exception—unless there is proof that he or she acted without good faith.

The full opinion is available here.