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Saturday, July 13, 2024 | Back issues
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Mental health conditions could offer exemptions to Arizona abortion law, state AG says

Arizonans with pregnancies past 15 weeks can receive an abortion if they face a threat of death or major bodily harm.

PHOENIX (CN) — Arizona’s attorney general on Thursday issued a legal opinion clarifying which medical emergencies could offer patients exemptions under the state's current abortion ban.

Mental health conditions like depression could be on that list.

While state law provides no exceptions for rape or incest, it does list examples of major bodily functions for which impairment would constitute a medical emergency, including “brain, neurological, respiratory and reproductive functions.”

In a press conference on Thursday, Arizona AG Kris Mayes, a Democrat, suggested but did not directly say that depression and risk of suicide could be among the medical emergencies that would entitle a patient to an abortion past 15 weeks.

When pressed by reporters for clarity, Mayes said the inclusion of “neurological and brain” function in state law implies that doctors can take mental health into account.

“It doesn’t exclude what a doctor might consider other major bodily functions," Mayes told reporters. "I’ll leave it at that.”

For an exemption to be granted, Mayes wrote in her Thursday morning opinion, a physician must make a “good faith” determination that an abortion is necessary to either save the life of the mother or prevent irreversible impairment of a major bodily function.

For the purposes of Arizona abortion law, Mayes defined good faith as an honest clinical judgment based on the physician's knowledge and expertise without intent to deceive. Neither Arizona Senate President Warren Petersen nor House Speaker Ben Toma, both Republicans, returned requests for comment by press time.

Democratic lawmakers had asked Mayes to clarify Arizona abortion law for doctors who are confused about the legality of the treatment in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

“Doctors have a fear of criminal prosecution hanging over their heads,” Mayes said at the news conference on Thursday. “That is chilling how common-sense medicine is practiced.”

Three physicians also addressed the media gaggle, thanking Mayes for the clarification. They recounted difficult decisions they've faced as they've tried to both comply with Arizona law and provide quality health care.

Dr. Jill Gibson, chief medical officer for Arizona’s Planned Parenthood, said such laws don’t always capture the nuance and quick decision-making required to provide emergency care. She shared two stories in which she says patients needlessly suffered because physicians weren’t sure whether they could provide abortions. 

“Please don’t tie our hands,” she pleaded. “Please don’t make us sit and watch our patients suffer in front of us."

Mayes renewed her vow not to prosecute any doctors or nurses under current law. 

“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, and providing abortion care in medical emergencies,” she added. 

In her opinion, Mayes likewise wrote that the decisions of reproductive health care providers cannot be second-guessed unless investigators can prove a doctor didn’t act in good faith.

A reporter asked Mayes whether that good-faith qualifier might open the door for new types of legal challenges against doctors, as abortion opponents try to prove a lack of good faith.

“We’re not opening the door,” Mayes said. “The legislature wrote those words.” She said her only intent is to clarify law — and to take pressure off the shoulders of medical providers. 

In Arizona, the status of abortion care has been up in the air since the state Supreme Court revived a 160-year-old near-total abortion ban in April. The Republican-controlled Legislature and Democratic Governor Katie Hobbs repealed the ban in May, returning the state to the post-15 week ban it operated under since 2022. 

Democrats and abortion rights advocates say 15 weeks isn’t enough time. "These dangerous bans continue to hurt Arizona families and health care providers statewide,” Athena Salman, campaign director for Reproductive Rights for All Arizona, said in a press release in response to Mayes’ opinion. “We are with the 9 out of 10 Arizonans who support the right to abortion and will be mobilizing to elect champions like her up and down the ballot this year.”

Also on Thursday, the U.S. Supreme Court upheld a lower court’s ruling allowing patients in Idaho to receive an abortion in the case of a medical emergency. Idaho previously allowed abortions only in the face of risk to the mother’s life — not just severe injury. 

If you are having thoughts of suicide, call or text 988, or call the National Suicide Prevention Lifeline at 1-800-273-8255 (TALK). Visit SpeakingOfSuicide.com/resources for a list of additional resources.

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Categories / Criminal, Government, Law, Regional

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