Arizona’s 15-week abortion ban too confusing for doctors, Dem lawmakers say

Kris Mayes at an April 3, 2024, event for Joe Biden's presidential campaign. Photo by Gloria Rebecca Gomez | Arizona Mirror

A group of Democratic lawmakers is calling on the state’s attorney general to clarify the exception in Arizona’s 15-week abortion ban, saying that women and doctors need better guidelines when faced with life or death situations.

“We have been hearing from concerned constituents that pregnant people throughout the state may be denied medical treatment and turned away from obtaining an abortion after the 15-week gestational age limit established in Arizona law,” reads the emailed request sent on June 11.

Doctors in the state are currently barred from performing abortions after the 15-week deadline, unless their patient faces a medical emergency critical enough to warrant one.

State law defines a medical emergency as a condition that, based on the doctor’s good faith judgment, has the potential to result in death or a “substantial and irreversible impairment of a major bodily function.”

Bodily functions are defined broadly, and include everything from cell growth to the normal performance of the digestive, bowel, bladder, endocrine, reproductive, neurological, respiratory or circulatory systems.

Four Arizona Democrats, Senators Eva Burch and Christine Marsh and Representatives Judy Schwiebert and Stephanie Stahl Hamilton, urged Arizona Attorney General Kris Mayes to issue an opinion that could provide better explanations for doctors across the state.

The lawmakers are all vocal reproductive rights advocates, and made clear to note in their request that they don’t support the 15-week ban but simply wish to obtain legal clarity.

Burch made headlines earlier this year for sharing her plans to receive an abortion on the floor of the state Senate , in order to highlight the cruel and invasive process GOP lawmakers have created for women in the state.

The lawmakers argue that the definitions baked into the law are too vague, and risk causing delays that could jeopardize a woman’s health. The gestational ban punishes doctors who carry out unlawful abortions with a class 6 felony, which may result in a prison sentence of between 4 months and 2 years.

Doctors in other states with restrictive laws on the books have reported hesitating to provide care for fear of criminalization , and studies have found that, in states with abortion bans, maternal mortality rates far exceed those where the procedure is easier to access .

In Tennessee, where it’s a felony for doctors to perform any abortion unless their patient faces death or irreversible impairment to a bodily function, one woman’s doctor refused to provide an emergency abortion and she was instead transported by ambulance six hours away to North Carolina to receive care. She arrived with dangerously high blood pressure and signs of kidney failure.

To minimize the impact on women in Arizona, wrote lawmakers, clarity for health care providers is imperative. There’s no existing case law for doctors to lean on to justify their actions, they said.

“These pregnant people face, while in the midst of a medical emergency, a situation in which their future reproductive health is being threatened as well as a potentially life-threatening situation wherein the life of a pregnant person would be endangered or even lost due to confusion by doctors as to what constitutes a medical emergency under state law,” reads the letter.

The Democratic lawmakers requested a response by July 11. Opinions issued by the state attorney general’s office are not binding, only advisory, but they do hold weight as counsel issued by Arizona’s top legal officer.

While a legal opinion can help settle pressing questions for doctors in Arizona, it’s unlikely that any health care provider in the state will be prosecuted under the gestational ban. Last year, Gov. Katie Hobbs issued an executive order centralizing all prosecutorial authority for abortion law violations in the state attorney general’s office and Mayes has vowed never to take doctors to court. Several county attorneys threatened to launch a lawsuit against that executive order, saying it infringed on their authority as elected officials, but no such challenge has yet materialized.

In an interview with 12News reporter Brahm Resnik , Mayes confirmed that she plans to respond to the request from the group of Democratic lawmakers, and said she, too, finds the law’s vagueness concerning.

“I had one Banner emergency room doctor say to me, ‘Kris, how close to death do I have to allow a woman who is in a crisis, (an) emergency pregnancy situation — ectopic pregnancy, for instance — how close to death do I have to allow her to get before I can avoid being prosecuted under the 15 week abortion ban? That is a crazy, crazy question for him to have to ask me and it is insane that in this day and age doctors are having to talk to their lawyers on a nightly basis about the kind of care they can provide women,” she said.

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