When can an Arizona physician perform an abortion under the 'medical emergency' exception, and how close to death does the patient have to be before doctors can act without risking criminal prosecution?

Plain-English summary

Arizona's 2022 law (S.B. 1164) prohibits abortions after 15 weeks of pregnancy except in a "medical emergency." A medical emergency exists, the statute says, when "on the basis of the physician's good faith clinical judgment" a condition either makes immediate abortion necessary to avert death or means a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

Lawmakers, physicians, hospital lawyers, and patients all wrestled with what that language actually requires. Did "good faith" mean a physician's honest belief, or did it mean an objective standard that another doctor could later second-guess? Did "to avert her death" mean the patient had to be near death? Senators Eva Burch and Christine Marsh and Representatives Judy Schwiebert and Stephanie Stahl Hamilton asked AG Kris Mayes to interpret the statute, citing real harm: hospitals were waiting too long, doctors were unsure when they could act, patients were facing preventable damage to their long-term health.

The opinion concludes:

1. The standard is subjective. A treating physician must (a) actually exercise clinical judgment, and (b) form a good-faith honest belief that one of the two statutory conditions is met. That judgment cannot be overruled by hindsight or by a different physician's view. Bad-faith conduct can be prosecuted, but a physician who honestly believed a medical emergency existed cannot.

2. Death does not have to be imminent. The statute says abortion is permitted to "avert" death. "Avert" includes preventing a future harm, not only an immediate one. A physician does not have to wait until the patient is hemorrhaging or in sepsis. The temporal urgency in the statute attaches to the abortion (it must be immediate once the judgment is made), not to the death.

3. Major bodily function is interpreted broadly. The statute lists examples (immune, digestive, neurological, etc.) but says "includes," not "limited to." Other bodily functions can qualify, and treating physicians decide how to assess "serious risk" and "substantial and irreversible" impairment.

4. Different patients can make different choices. A patient's personal decision to wait and try other treatment first does not undermine the physician's good-faith finding for a different patient who chooses to proceed.

5. Some procedures are not "abortions" at all. Removing a non-living fetus or treating an ectopic pregnancy is excluded from the statutory definition of abortion. The 15-week law does not apply, and physicians do not need to find a medical emergency before treating.

What this means for you

If you are a treating physician in Arizona caring for a pregnant patient

You decide. The opinion is the AG's published statement that the medical-emergency standard is subjective and patient-specific. Document your clinical reasoning: the condition, the risk, why an immediate abortion is the indicated treatment, and that you have considered both prongs (death and major-bodily-function impairment). Document genuinely; do not write boilerplate. The good-faith protection is meaningful, but it is built on a contemporaneous record that shows you actually exercised clinical judgment. If your assessment is honest and based on the facts in front of you, it cannot be successfully second-guessed in a later prosecution.

If you are caring for a patient with sepsis, hemorrhage, hypertensive crisis, severe pre-eclampsia at viability, or an analogous condition where the standard of care points to abortion as part of stabilization, you do not have to wait until the patient is sicker. The opinion cites the principle that the medical-emergency exception "operates for the benefit, not the disadvantage, of the pregnant woman."

If you are treating an ectopic pregnancy or removing fetal demise, you are not performing an "abortion" under § 36-2151(1) and the 15-week law does not apply at all. You do not need to make a medical-emergency finding.

If you are a hospital general counsel or risk manager

Update your written guidance to clinicians. The standard is subjective good-faith clinical judgment. Document, document, document. Train your physicians on the two-prong "death" and "major bodily function" framework and on the explicit examples the AG gives (you do not have to wait until hour 23 of a 24-hour death timeline; you do not have to find a percent-chance threshold of death). Make sure your transfer-and-EMTALA policies recognize that delay-by-EMTALA is not a substitute for performing the indicated procedure where you are.

If you are a patient or family member

If a doctor or hospital tells you they are required to wait until your condition gets worse before they can intervene, this opinion is the Attorney General's published statement that the law does not require waiting. Ask whether the doctor has documented their clinical judgment about your condition. Ask whether the procedure being declined is technically an abortion under the law (it is not always; ectopic-pregnancy treatment and removal of a non-living fetus are not). If you cannot get answers on the spot, you have grounds to ask for a transfer or for a second opinion.

This opinion does not let you compel a particular doctor to perform a procedure they are not willing to perform. It removes a legal barrier they may have feared, not a personal or institutional one.

If you are a prosecutor or law enforcement agency

The opinion is the AG's statement of how A.R.S. § 36-2322 should be enforced. A criminal case under the statute requires proof that the physician acted without good faith. Showing that a different physician would have made a different call, or that hindsight reveals the abortion was not strictly necessary, is not enough. The standard is honest belief; bad faith is the offense.

If you are a state legislator

The opinion does not prohibit you from changing the law. It interprets the statute as written. If you want a different standard, you would need to amend § 36-2321(7) to add objective-reasonableness language (the way Texas and Ohio have, as the opinion notes). The current text is what the AG calls a "subjective standard focused on the treating physician's mindset," and that is how she will interpret it as long as the words remain.

Common questions

Q: Does the AG opinion change the law?
A: No. It interprets the existing statute. AG opinions are persuasive authority, not binding precedent, but they reflect the state's official position on enforcement.

Q: Does my doctor have to be 100% certain that I will die before performing an abortion?
A: No. The standard is honest belief, not certainty. The opinion explicitly rejects the idea that a particular percent-chance of death is required.

Q: How does this interact with the federal EMTALA law?
A: EMTALA requires hospitals to stabilize emergency patients. State law cannot block care that EMTALA mandates. The AG's opinion gives Arizona physicians more room to act under state law in the first place, which reduces the conflict between state and federal duties.

Q: What about ectopic pregnancy and miscarriage?
A: The statutory definition of "abortion" excludes ectopic pregnancy treatment and removal of a non-living fetus. The 15-week limit does not apply to those procedures. They are governed by ordinary medical practice, not by the abortion statute.

Q: Can a hospital's lawyers tell my doctor not to perform an abortion even when the doctor thinks one is needed?
A: A hospital can have its own policies. State law does not require any particular hospital or doctor to perform a procedure. But the AG's opinion makes clear that fear of criminal prosecution is not a sound basis for delaying care when the treating physician honestly believes an abortion is the indicated treatment.

Q: Does this apply to abortions before 15 weeks?
A: § 36-2322(B) is the 15-week law. Before 15 weeks, abortion remains lawful in Arizona without needing a medical-emergency finding. § 36-2322(A) requires gestational-age determination before any abortion (with the same medical-emergency exception). The opinion's interpretation of "medical emergency" applies to both subsections.

Q: What if two doctors disagree about whether a patient meets the medical-emergency standard?
A: That is exactly what the subjective standard is meant to handle. The treating physician's honest judgment controls. A second physician's contrary opinion does not retroactively make the first physician's judgment wrong, because the law focuses on the treating physician's mindset at the time of treatment.

Background and statutory framework

Arizona's regulation of abortion has changed several times in recent years. In 2022, before the U.S. Supreme Court decided Dobbs, the legislature passed S.B. 1164, codifying the 15-week law (A.R.S. § 36-2322) and the related definitions in § 36-2321. Dobbs then overruled Roe v. Wade and Casey, eliminating the federal constitutional right to abortion. The Arizona Supreme Court read that as reviving an older 1864-vintage near-total abortion ban that had been on the books but enjoined since 1973 (Planned Parenthood Ariz., Inc. v. Hazelrigg, 545 P.3d 892 (Ariz. 2024)). The legislature then repealed the 1864 statute (A.R.S. § 13-3603), leaving the 15-week law in effect as the governing statute on temporal limits.

Within that framework, § 36-2321(7) defines "medical emergency" as a condition that, "on the basis of the physician's good faith clinical judgment," either necessitates immediate abortion to avert the pregnant woman's death, or for which delay will create serious risk of substantial and irreversible impairment of a major bodily function. The same definition appears in two other Arizona abortion statutes (§ 36-2151(9) and § 36-2301.01(C)(2)) and the AG's analysis applies equally to them.

The opinion methodically works through three central interpretive questions. First, it concludes the definition is disjunctive: either prong is sufficient. Second, it concludes the modifier "on the basis of the physician's good faith clinical judgment" applies to both prongs. Third, it concludes that the legislature's choice of "good faith clinical judgment" rather than "reasonable medical judgment" or similar objective formulations signals a deliberate subjective standard.

The opinion then deals with practical questions. "Avert death" does not mean death must be imminent. Major bodily function is broadly defined (the listed examples are illustrative, not exhaustive). Patient choice does not undermine physician judgment for other patients. And the abortion definition excludes ectopic pregnancy and fetal-demise treatment.

The opinion contrasts Arizona's statute with those of states that explicitly require objective reasonableness. Texas's In re State and Ohio's Voinovich show what objective standards look like and confirm that Arizona's legislature wrote something different.

Citations and references

Arizona statutes:
- A.R.S. § 36-2321 (definitions, including medical emergency)
- A.R.S. § 36-2322 (15-week law and gestational-age determination)
- A.R.S. § 36-2151 (similar definitions in Title 36)
- A.R.S. § 36-2301.01 (similar definitions)
- A.R.S. § 36-449.03(D)(5) (objective gestational-age standard, by contrast)
- A.R.S. § 1-215(14) (statutory rule that "including" is non-exhaustive)
- A.R.S. § 13-3603 (repealed 2024)

U.S. Supreme Court:
- Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022)
- Roe v. Wade, 410 U.S. 113 (1973)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
- Hall v. Florida, 572 U.S. 701 (2014)

Arizona courts:
- Planned Parenthood Ariz., Inc. v. Hazelrigg, 545 P.3d 892 (Ariz. 2024)
- Tucson Women's Ctr. v. Ariz. Med. Bd., 666 F. Supp. 2d 1091 (D. Ariz. 2009)
- Stafford v. Burns, 241 Ariz. 474 (App. 2017)
- Shepherd v. Costco Wholesale Corp., 250 Ariz. 511 (2021)
- In re Riggins, 544 P.3d 64 (Ariz. 2024)
- In re Drummond, 543 P.3d 1022 (Ariz. 2024)
- Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193 (2016)

Out-of-state guidance:
- Planned Parenthood Great Nw. v. State, 522 P.3d 1132 (Idaho 2023) (parallel subjective good-faith analysis)
- Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004)
- A Woman's Choice-East Side Women's Clinic v. Newman, 671 N.E.2d 104 (Ind. 1996)
- Fargo Women's Health Org. v. Schafer, 18 F.3d 526 (8th Cir. 1994)
- Womancare of Orlando, Inc. v. Agwunobi, 448 F. Supp. 2d 1293 (N.D. Fla. 2005)
- Women's Med. Pro. Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995) (contrast: objective standard)
- In re State, 682 S.W.3d 890 (Tex. 2023) (contrast: objective standard)

Source

• Landing page: https://www.azag.gov/opinions/i24-009-r24-011
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I24-009.pdf

Original opinion text

To:

The Honorable Eva Burch, State Senate, District 9;

The Honorable Christine Marsh, State Senate, District 4;

The Honorable Judy Schwiebert, House of Representatives, District 2; and

The Honorable Stephanie Stahl Hamilton, House of Representatives, District 21.

Question Presented

For purposes of providing medical care permitted by A.R.S. § 36-2322(A) and (B), when does a "medical emergency" exist, as that term is defined by A.R.S. § 36-2321(7)?

Summary Answer

To comply with the "medical emergency" exception in A.R.S. § 36-2322(A) and (B), as defined in A.R.S. § 36-2321(7), the treating physician must do two things. First, she must exercise clinical judgment. Courts have recognized that clinical judgment is a well-understood medical concept that involves a physician applying her personal knowledge, training, experience, and discernment to the facts before her in light of the patient's unique circumstances and other medically relevant considerations. Second, the treating physician must determine in good faith that, based on her 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." A.R.S. § 36-2321(7). In this context, good faith means that the treating physician's assessment must be based on an actual and honest belief, without malice or an intent to deceive, that a medical emergency exists. It does not mean that the treating physician's assessment must be objectively correct if later evaluated by others with the benefit of hindsight.

Once a treating physician forms a good faith clinical judgment that one of the two foregoing circumstances is satisfied, the statute allows her to perform an abortion immediately and does not require her to wait for a patient to deteriorate or inch closer to death. The treating physician's clinical judgment that a "medical emergency" exists cannot be second-guessed after the fact and cannot be prosecuted under A.R.S. § 36-2322—or any other abortion law with the same "medical emergency" exception—unless there is proof that she acted without good faith.

Background

In March 2022, the Arizona Legislature passed and the Governor signed S.B. 1164, which added A.R.S. §§ 36-2321 through 36-2326 to the statutory scheme regulating abortion. See 2022 Ariz. Legis. Serv. Ch. 105 (S.B.1164), § 1. Relevant here is A.R.S. § 36-2322, which states in part:

A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being.... The determination of probable gestational age shall be made according to standard medical practices and techniques used in the medical community.

B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

A.R.S. § 36-2322(A)-(B). In short, subsection (A) prohibits physicians from performing an abortion without determining the gestational age of the fetus, and subsection (B) prohibits abortions after 15 weeks gestational age. But neither prohibition applies when there is a "medical emergency." A "medical emergency" is defined as:

a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

A.R.S. § 36-2321(7). This definition in S.B. 1164 is identical to earlier "medical emergency" definitions that the Legislature adopted in relation to other abortion laws. See A.R.S. § 36-2151(9); see also A.R.S. § 36-2301.01(C)(2).

In June 2022, the U.S. Supreme Court held that there is no federal constitutional right to obtain an abortion, overruling Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). See Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 231-32 (2022). The Arizona Supreme Court subsequently concluded that the 15-week law in A.R.S. § 36-2322 was "predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs," and therefore held that an older abortion law enjoined since Roe—A.R.S. § 13-3603—was newly enforceable and governed over the 15-week law. Planned Parenthood Ariz., Inc. v. Hazelrigg, 545 P.3d 892, 895 ¶ 2 (Ariz. 2024).

Several weeks later, however, the Legislature repealed A.R.S. § 13-3603. 2024 Ariz. Legis. Serv. Ch. 181 (H.B. 2677). As a result, the 15-week law in A.R.S. § 36-2322 is the governing law in Arizona regarding the temporal limitations on obtaining an abortion and the exception to those limitations.

Your request of June 11, 2024, indicates that confusion regarding the scope and application of the "medical emergency" exception is creating significant problems within the medical community. Specifically, you stated that "there is an urgent need to inform practitioners as to what is legally appropriate under current state law" because Arizonans are facing threats to "their future reproductive health" and "potentially life-threatening situation[s]" as a result of "confusion by doctors as to what constitutes a medical emergency."

In light of that confusion and the significant stakes for Arizona families and healthcare providers, we issue this Opinion in response.

Analysis

I. Whether a medical emergency exists under A.R.S. § 36-2321(7) is based on the treating physician's personal "good faith clinical judgment."

Whether an abortion is permitted under the "medical emergency" exception to A.R.S. § 36-2322(A) and (B) is dependent on the treating physician's personal "good faith clinical judgment" that the facts at hand satisfy the statute. That "good faith clinical judgment" test requires only two things: first, the physician must use clinical judgment, and second, the physician must act in good faith in forming a clinical judgment that a "medical emergency" exists. 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.

A. The "medical emergency" exception is disjunctive.

We begin, as we must, with the plain text of the medical emergency exception. See In re Riggins, 544 P.3d 64, 67 ¶ 12 (Ariz. 2024). Two aspects of the definition's structure are especially instructive as a threshold matter. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012).

First, the definition is disjunctive. It is comprised of two main clauses separated by "or": the "so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death" clause, and the "delay will create serious risk of substantial and irreversible impairment of a major bodily function" clause. See A.R.S. § 36-2321(7). It is well settled that "[t]he word 'or' generally means '[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things.'" See State v. Bowsher, 225 Ariz. 586, 587 ¶ 7 (2010). This means that if either part of the definition in § 36-2321(7) is satisfied, then a "medical emergency" exists and the prohibitions and requirements in A.R.S. § 36-2322(A) and (B) do not apply.

Second, the phrase "on the basis of the physician's good faith clinical judgment" prefaces the whole definition and modifies both parts. A.R.S. § 36-2321(7). When the same modifier applies to "two disjunctive terms … each possibility must make sense standing alone." Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 197 ¶ 18 (2016). Thus, whether a "medical emergency" exists under either clause hinges entirely on the treating physician's "good faith clinical judgment" that one exists. A.R.S. § 36-2321(7).

B. With the statutory language "good faith clinical judgment," the Legislature clearly chose a subjective standard focused on the treating physician's mindset.

Unlike other statutes that refer generically to "good faith," the medical emergency definition refers more specifically to "good faith clinical judgment." A.R.S. § 36-2321(7) (emphasis added). The "good faith clinical judgment" requirement is also different because "good faith" is not a noun and end in itself; it is a phrasal adjective that describes "clinical judgment." See Scalia & Garner at 140. Accordingly, "good faith" in this context must be construed in conjunction with the bottom-line requirement that it modifies. And therefore, we first discuss the meaning of "clinical judgment" and then the nature of the "good faith clinical judgment" inquiry as a whole.

1. "Clinical Judgment"

Courts "understand the term 'clinical judgment' to be a shorthand for a physician's judgment of his patient's condition made in the light of his professional training and experience and based on both his physical observation of the patient and the patient's own description of her symptoms." A Woman's Choice-East Side Women's Clinic v. Newman, 671 N.E.2d 104, 109 n.7 (Ind. 1996). In various contexts, "clinical judgment" has been similarly described as "a special type of judgment rooted in a high level of clinical expertise and experience," which "emerges directly from extensive data," the provider's "explicit training," and "familiarity with the [patient] and the [patient's] environments."

Although clinical judgment is based on objective information, it is distinct from the data and training that inform its exercise. Indeed, clinical judgment is necessarily fact-specific and unique to each physician because it requires "the physician's medical knowledge [to be applied] to an individual patient's circumstances." Grier v. Goetz, 424 F. Supp. 2d 1052, 1062 (M.D. Tenn. 2006).

Clinical judgment "is of significant importance" in medical matters of "relative subjectivity," and matters that require "a timely assessment" and "involve[] an ambiguous set of circumstances." But whatever the situation or area of medicine, the "'good-faith clinical judgment' standard is a familiar one to physicians," and they "routinely make medical emergency determinations … in [the exercise of] their 'good-faith clinical judgment.'" Womancare of Orlando, Inc. v. Agwunobi, 448 F. Supp. 2d 1293, 1307 (N.D. Fla. 2005). In sum, the caselaw makes clear that "clinical judgment" has "a common meaning ascribed by the populace" to which A.R.S. § 36-2123(7) applies—physicians. Heath v. Kiger, 217 Ariz. 492, 494 ¶ 8 (2008).

The Arizona Legislature has used "clinical judgment" several times in various contexts without ever defining it, including in S.B. 1164. See, e.g., A.R.S. §§ 32-1263(D)(16), 32-1263.02(Q)(1) (dentistry), 36-509(A)(8) (mental health services), 36-3605(1). These repeated uses of a key term without any accompanying definition indicate that, just like many courts and any healthcare provider, the Legislature has consistently understood "clinical judgment" to be a straightforward and unambiguous medical concept that requires no statutory elaboration.

Furthermore, the Legislature explicitly advised that S.B. 1164 did not "alter generally accepted medical standards." S.B.1164, § 2(1). That express preservation of generally accepted medical standards in S.B. 1164 confirms that the 15-week law in A.R.S. § 36-2322 did not change the standard of care or otherwise change how providers have long been—and should continue—applying their clinical judgment to assess the existence of a "medical emergency."

2. "Good Faith"

As a general matter, "good faith" requirements "appear[] frequently in various statutory contexts" and court rules, but that language's meaning and whether it calls for "a subjective measuring approach or … an objective standard" can vary. In re Est. of Gordon, 207 Ariz. 401, 405 ¶ 20 (App. 2004). Some statutes call for an objective approach to good faith, which requires a comparison to "what a [similarly situated person] would do in similar circumstances." Villa De Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, 96 ¶ 14 (App. 2011). By contrast, a subjective standard focuses only on a person's internal understanding and simply requires a person to act with "an honest belief without malice or a design to defraud or to seek an unconscionable advantage," without requiring that conduct to be reasonable as compared to others. Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, 515-16 ¶¶ 20, 23-25 (2021).

Relevant here, then, is whether compliance with A.R.S. § 36-2321(7) turns on the treating physician's state of mind the moment she forms a clinical judgment that a medical emergency exists. Or, whether the treating physician's honest judgment is irrelevant because the statute instead requires an after-the-fact comparison of the treating physician's assessment to what a hypothetical reasonable physician would have concluded. Although there might be ambiguity in other statutory contexts about whether an objective or subjective approach is the correct standard, there is no such ambiguity here as to "good faith clinical judgment." "By its very nature, a physician's clinical judgment is not objective. It is a subjective application of the physician's medical knowledge … to an individual patient's circumstances." Grier, 424 F. Supp. 2d at 1062.

Reflecting that principle, there appears to be no real dispute in the caselaw that the phrase "good faith clinical judgment" requires an analysis of whether the treating physician acted honestly—it does not require a comparison to what other physicians would have done. For example, the Ninth Circuit has found language identical to A.R.S. § 36-2321(7) "plainly included a subjective standard—an allowance that a physician may act by his own medical judgment so long as he acts in good faith—rather than [an] objective, 'prudent physician' standard." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 933 (9th Cir. 2004).

Other courts have similarly taken it as a given that this sort of "reference to the physician's best clinical judgment certainly places in the physician's hands the medical judgment that would satisfy the requirements of the statute." Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 535 (8th Cir. 1994). The Idaho Supreme Court recently recognized the same, explaining that the statutory language "in his good faith medical judgment and based on the facts known to the physician at the time" left "wide room" for the physician's discretion and was "clearly a subjective standard, focusing on the particular physician's judgment" not "objective certainty." Planned Parenthood Great Nw. v. State, 522 P.3d 1132, 1203 (Idaho 2023).

Unlike the language the Arizona Legislature chose in A.R.S. § 36-2321(7), some states have included references to reasonableness in their medical emergency definitions. That sort of language, such as "in good faith and in the exercise of reasonable medical judgment," clearly indicates "that the physician cannot rely solely on his or her own best clinical judgment … instead, that determination must be objectively reasonable as well." Women's Med. Pro. Corp. v. Voinovich, 911 F. Supp. 1051, 1077, 1082-83, 1085 (S.D. Ohio 1995); see also In re State, 682 S.W.3d 890, 894 (Tex. 2023).

Consistent with the apparent consensus among these courts, the Legislature plainly understands the difference between subjective good faith and objective reasonable care, and it knows how to require the latter when that is what it intends. See, e.g., A.R.S. §§ 36-2266(C), 36-2228(C); A.R.S. § 32-1979(D); A.R.S. § 32-1979.01(D); A.R.S. § 36-420(C). The same is true in the abortion context in particular, where the Legislature knows how to require an objective determination based on specific procedures. See, e.g., A.R.S. § 36-449.03(D)(5).

Notably, the Legislature did not include any similar language in the "medical emergency" definition in A.R.S. § 36-2321(7). Rather, the medical emergency exception hinges on language that unquestionably calls for an analysis of the treating physician's honest clinical judgment alone. The statute does not mention "reasonableness" or otherwise call for an objective comparison of the treating physician's determination to what other physicians would have done.

That A.R.S. § 36-2321(7) establishes a subjective standard just means that the treating physician must exercise clinical judgment and make "a good faith judgment call" about whether a medical emergency exists, but the statute does not require (or allow) a post-hoc inquiry into whether that judgment call was "objectively 'correct.'" Planned Parenthood Great Nw., 522 P.3d at 1205.

Relatedly, the "medical emergency exception does not require certainty …. It calls only for a physician's 'good faith clinical judgment.'" Tucson Women's Ctr. v. Ariz. Med. Bd., 666 F. Supp. 2d 1091, 1102 (D. Ariz. 2009). And to act in good faith, a physician must simply "act[] under an honest belief, without malice or a design to defraud." Shepherd, 250 Ariz. at 516 ¶ 25.

In other words, the statute does not require the treating physician to be certain about the consequences of failing to provide an abortion and precisely when those consequences will occur, only to arrive at her clinical judgment in "good faith." If the treating physician forms an honest clinical conclusion that something "so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death," or that a "delay will create serious risk of substantial and irreversible impairment of a major bodily function," then a medical emergency exists. It does not matter for purposes of Title 36 whether a prosecutor (or other doctors) might later believe that the physician objectively erred in her conclusion. 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.

II. A physician's exercise of "good faith clinical judgment" is highly fact-specific.

Pregnancy is complex and there are myriad combinations of unique circumstances and risk factors that can lead to any number of complications. It would be impossible and inappropriate to speculate in a factual vacuum about how the statute should apply to particular circumstances. Cf. Stafford v. Burns, 241 Ariz. 474, 480-81 ¶ 12 (App. 2017).

Nonetheless, the statutory text and relevant caselaw offer some general guideposts for treating physicians exercising their "good faith clinical judgment" under A.R.S. § 36-2321(7).

A. "Necessitate the immediate abortion of her pregnancy to avert her death."

Under the first part of the statutory definition, a "medical emergency" exists when "a condition … so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death." A.R.S. § 36-2321(7).

Notably, the statute does not say "to avert imminent death" or "certain death." Nor does the ordinary meaning of "avert" entail that the harm to be averted is imminent or inevitable. "Avert" simply means "to see coming and ward off" or "to turn away or aside … in avoidance," and one can "see coming and ward off" a consequence that may occur soon, but not immediately. See Avert, Meriam-Webster (listing "avoid" as a synonym). Instead, the temporal aspect of the statutory definition is linked to the medical care to be provided ("the immediate abortion") not to the consequence to be avoided ("death").

As a result, the statute simply cannot be read to mean that death must be imminent before an "immediate abortion" is permitted. 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. Cf. Planned Parenthood Great Nw., 522 P.3d at 1204. Under the plain statutory text, it is not impending death that "necessitate[s] the immediate abortion," but rather the existence of a "condition that … so complicates the medical condition of a pregnant woman" that an abortion is necessary to avert eventual death.

In other words, the medical emergency exception is triggered as soon as the treating physician forms an honest clinical judgment that an abortion is the indicated treatment for a patient's condition in order to avert death. So, for instance, if the treating physician examined a patient and determined that the patient's condition would lead to death within 24 hours, the physician need not wait until hour 23 (or 22, 21, or 20, etc.) to perform an abortion—the physician need not wait at all. Once the physician has exercised her clinical judgment and concluded in good faith that the condition requires an abortion to avert death, the patient's condition then "necessitate[s]" that care. A.R.S. § 36-2321(7).

Courts have understood similar statutory text in this way. Interpreting nearly identical "medical emergency" language, the Indiana Supreme Court stated that the "statute permits immediate abortion far short of medical calamities" and applies as soon as the physician "concludes in her best clinical judgment that her patient's condition indicates an abortion is medically necessary." A Woman's Choice, 671 N.E. 2d at 110. Likewise, the Idaho Supreme Court recently held that the phrase "'necessary to prevent the death of the pregnant woman' ... does not require objective certainty, or a particular level of immediacy, before the abortion can be 'necessary' to save the woman's life." Planned Parenthood Great Nw., 522 P.3d at 1203.

Requiring a physician to wait until her patient is at death's door would also run afoul of the principle that "[s]tatutes should be construed sensibly to avoid reaching an absurd conclusion." State ex rel. Montgomery v. Harris, 237 Ariz. 98, 101 ¶ 13 (2014). Once a physician has determined in good faith that an abortion is the indicated care for a patient's condition to avert death, it would serve no purpose to require a physician to wait to provide that necessary care solely to allow the patient to inch closer to death. The medical emergency exception expressly "allows the attending physician the room he needs to make his best medical judgment," and that room "operates for the benefit, not the disadvantage, of the pregnant woman." Planned Parenthood Great Nw., 522 P.3d at 1203-04.

The contrary interpretation would also put physicians between a rock and a hard place. On the one hand, the threat of criminal prosecution and regulatory discipline for providing an abortion too soon. And on the other hand, the possibility of a patient dying or experiencing permanent injuries and the threat of civil liability and regulatory discipline for waiting too long. That tension is untenable for the effective practice of medicine and directly conflicts with the Legislature's stated concern in S.B. 1164 for "protecting the health of women," § 3(A)(6) (citation omitted), and its express direction that the "act does not ... alter generally accepted medical standards," § 2(1).

B. "Delay will create serious risk of substantial and irreversible impairment of a major bodily function."

Under the second part of the statutory definition, a "medical emergency" also exists when "a condition … so complicates the medical condition of a pregnant woman … [that] a delay [in providing an abortion] will create serious risk of substantial and irreversible impairment of a major bodily function." A.R.S. § 36-2321(7).

"'Major bodily function' includes functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions." A.R.S. § 36-2321(6). This list is not exhaustive of all major bodily functions a physician may consider, however. The statute's use of "includes" indicates that other bodily functions may qualify as "major," which treating physicians should assess based on the facts of each case and consistent with their clinical judgment. See Vangilder v. Ariz. Dep't of Revenue, 252 Ariz. 481, 487 ¶ 22 (2022).

What constitutes a "substantial[] and irreversibl[e]" impairment, and what degree of risk rises to the level of "serious risk," are likewise questions for the treating physician to determine according to her good faith clinical judgment. The physician's analysis will surely vary depending on the major bodily function at issue and each patient's personal situation and history; nothing in the statute artificially constrains that clinical judgment by imposing a certain percentage threshold at which the events must be likely to occur.

Two final points bear mention. First—and relevant to both prongs of the medical emergency definition—different patients might make different decisions about when to consent to an abortion as the appropriate care, but those patients' personal choices do not undermine the treating physician's good faith conclusion that a medical emergency exists. For instance, suppose a treating physician diagnoses two patients with cancer and concludes in both cases that at least one part of the medical emergency definition is satisfied. One patient with a lower risk tolerance might immediately choose to terminate the pregnancy to begin treating her cancer. But the other patient might choose to wait because of her personal beliefs about abortion. The latter patient's choice to wait based on her personal risk assessment and beliefs does not evidence a lack of good faith by the physician as to the former patient.

Second, there are certain situations that, as a factual matter, might very well qualify as clinical emergencies—either immediately or at some point in time—but which do not implicate A.R.S. § 36-2322 and do not require physicians to find a statutorily defined "medical emergency" before treating the patient. For example, the definition of "abortion" excludes "the use of any means … to terminate an ectopic pregnancy or to remove a dead fetus." A.R.S. § 36-2151(1); see id. § 36-2321(1). Thus, if a fetus is no longer living, the procedure to remove it is not an "abortion," and physicians need not determine that there is a "medical emergency" under A.R.S. § 36-2321(7) before providing the appropriate medical care. Likewise, in the case of an ectopic pregnancy where the fertilized ovum has implanted outside of the uterus, a procedure to treat that situation is not an "abortion," and therefore A.R.S. § 36-2322 and § 36-2321(7) do not apply and do not require anything of physicians before they can provide the appropriate medical care.

Conclusion

To comply with the "medical emergency" exception in A.R.S. § 36-2322(A) and (B), as that term is defined in A.R.S. § 36-2321(7), a physician must do two things. She must exercise clinical judgment, and she must have an actual and honest belief—based on her clinical judgment—that 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." The physician's clinical judgment that an abortion was warranted cannot be second-guessed after the fact and cannot be prosecuted unless there is proof that she lacked good faith in making that determination.

Kris Mayes

Attorney General

[1] The discussion that follows is equally applicable to the identical definition of "medical emergency" in A.R.S. § 36-2151(9) and § 36-2301.01(C)(2), and the many other abortion laws that include the same "medical emergency" exception.