By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona doctors can’t be prosecuted for performing abortions after 15 weeks as long as they make a “good faith clinical judgment” that the procedure is necessary to prevent a woman’s death or “substantial and irreversible impairment of a major bodily function,” Attorney General Kris Mayes said Thursday.

The attorney general acknowledged under questioning by reporters the law could be read broad enough to permit an abortion in cases of rape or incest, exceptions not included in the statute. And she said doctors are permitted to consider someone’s mental health, especially if there’s a belief a pregnant patient might otherwise commit suicide.

Mayes said the purpose of her formal opinion was to ensure doctors dealing with individual patients do not have to worry that a bad decision will land them in prison. That’s because the law currently in effect allows a pregnancy to be terminated after 15 weeks only in cases of “a medical emergency” — something not defined in the statute.

“Once a treating physician forms a good faith clinical judgment that one of these circumstances is satisfied, the statute allows her to perform an immediate abortion,” Mayes said, adding a doctor “need not wait for the patient to deteriorate or inch closer to death.”

Dr. Jill Gibson, medical director of Planned Parenthood Arizona, said that is critical. She told of a situation where a woman was in pre-term labor at 20 weeks, before the point a fetus could be considered viable.

“The delivery was inevitable,” Gibson said. But she said the doctor, fearing prosecution under the state’s abortion statutes, declined to take action to short-circuit all that through medical intervention even though it would have alleviated the woman’s pain and avoided the possibility of her own sepsis and death.

“What I want to say from the perspective as a physician is, please don’t tie our hands,” Gibson said.

“Please don’t make us sit and watch our patients suffer in front of us,” she continued. “Let us use our years of education, experience and medical expertise to provide care that is dignified and based on our good-faith clinical judgment.”

This issue of how close to death a patient must be to justify an abortion is not just an Arizona question.

In Idaho, doctors were concerned the abortion laws there did not permit them to terminate a pregnancy until a patient was near death. On Thursday, however, the U.S. Supreme Court left in place a lower court order that essentially gives doctors permission to perform abortions in emergency situations .

Thursday’s opinion contains more than what Mayes considers to be a “medical emergency” that allows a doctor to terminate a pregnancy. It also stated once a doctor has concluded there is a medical emergency she “cannot be second-guessed after the fact” and cannot be prosecuted unless there is proof the doctor acted without good faith.

Dr. Dan Schnorr, a board-certified emergency physician, said that is critical.

He detailed situations where a woman comes in with a ruptured membrane and has an infection. Schnorr said he can stabilize the woman with antibiotics.

“But ultimately you get to a point where the antibiotics in the blood is not going to do enough and they need to have an abortion, which is not an elective abortion.

“A lawyer could come back and say, ‘I’m not sure you actually needed to do that,” Schnorr said.

“As physicians, we’re at the bedside with the patient,” he said. “And later on, somebody who maybe has some kind of agenda is going to come and sue us.”

Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said she sees nothing in the written opinion that surprises her or that she considers wrong.

“Since 1999, doctors have known what a ‘medical emergency’ means in Arizona abortion laws,” she said, even if it wasn’t spelled out separately in the 2022 law setting a 15-week limit. “It’s not rocket science.”

But Herrod took specific exception to comments Mayes made under questioning that a woman’s mental health could also be a factor that a doctor considers when deciding whether to terminate her pregnancy.

“ ‘Medical emergency’ and ‘major bodily function’ only goes to the physical health of the mother,” she said.

“The Legislature clearly spelled out ‘major bodily function,’” Herrod continued. “If they intended it to include mental health health, they would have said so.’’

Mayes, however, made it clear she doesn’t interpret the law so strictly as to not allow a doctor to consider a patient’s mental health.

“Suicide has been addressed in case law, in prior years,” she said. “Those are all situations that I think doctors would be able to look at.”

The attorney general drew a different conclusion than Herrod about the meaning of what is — and is not — in the wording of the law about mental health.

“The Legislature was silent on that,” Mayes said

But she also pointed out the definition of what is a “major bodily function” includes both neurological and brain functions. On top of that, she doesn’t read that as a comprehensive list.

“It doesn’t exclude what a doctor might consider other major bodily function,’’ Mayes said.

That interpretation was backed by Josh Bendor, her solicitor general who helped craft the opinion, who said there’s a reason it was worded the way it was.

“We very specifically were not attempting to address every different situation in which a medical emergency might arise because, ultimately, we’re not doctors,’’ he said. “There are innumerable medical situations.’’

The bottom line of all this, said Mayes, is providing a shield for doctors.

“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,” she said.

The attorney general said that also bars action by county attorneys based on an executive order issued last year by Gov. Katie Hobbs stripping them of their ability to prosecute any abortion laws and giving that solely to Mayes.

Still, there are conditions to that immunity, like whether a doctor has acted in “good faith.” Mayes said she doesn’t see that as a loophole that could be used to prosecute doctors.

“It means lacking in dishonesty,” she said. “It means lacking deception. It means without malice.”

The attorney general acknowledged there is no definition in the law of what constitutes “clinical judgment,” one of the qualifiers to avoiding prosecution. But here, too, she said this essentially becomes a commonsense approach, that is “based on their training and their expertise” as applied to “circumstances in front of them.”

“By its very nature, a physician’s clinical judgment is not objective,” Mayes wrote in the opinion. “It is a subjective application of the physician’s medical knowledge to an individual patient’s circumstances.”