With the rise of social media use and growing concerns about health misinformation that accelerated during the COVID-19 pandemic, there has been increased attention to the role that various social media platforms play in the dissemination of health information, both accurate and inaccurate. Previous KFF polling has found that while few adults say they put a lot of trust in health information they come across on social media, those who use social media more frequently for health advice are more likely to believe false statements about issue like COVID-19 vaccines, reproductive health, and gun safety. This new KFF Health Misinformation Tracking Poll focuses on health and election-related information on the popular social media app TikTok in light of recent developments related to the platform.

In late April, President Joe Biden signed into a law a bill that would ban TikTok in the U.S. if its Chinese-owned parent company does not sell the platform within a year. The bill passed both chambers of Congress with bipartisan support, with many lawmakers, including President Biden, largely citing national security risks. At the same time, some media reports have documented the spread of various different types of health misinformation on the app, including misinformation related to prescription birth control.

Key Findings

• Most adults who use TikTok report seeing health-related content on the app, with the largest shares saying they’ve seen content about mental health (66%) and weight loss (66%). Younger users are particularly likely to report being exposed to health information on TikTok, with large shares of users ages 18-29 reporting seeing advice or information about several different health topics on the app, including mental health (91%), weight loss (79%), while many other younger users report seeing advice or information about abortion (59%), and birth control (52%).
• While about four in ten TikTok users say they trust information about health issues they see on the app, just one in eight say they have ever talked to a doctor (13%) or sought mental health treatment (12%) at least in part because of something they saw on TikTok. Larger shares of younger users ages 18-29 say they trust health information on TikTok (53%), and younger users are also more likely than older users to say they followed up with a doctor (19%) or sought mental health treatment (26%) due to content they’ve seen on the app.
• Most TikTok users say the content they’ve seen on the app has not affected their confidence in science and scientists, birth control, or vaccines. Overall, about one in seven users say content on TikTok has made them “less confident” (15%) in the safety and effectiveness of vaccines and a similar share (12%) say it has made them “more confident.” Among Republican TikTok users, however, a larger share say content on the app has made them “less confident” in vaccines (24%) rather than “more confident” (7%).
• When it comes to TikTok content centered on election issues, most users report either not seeing content related to these issues or seeing content that is a mix of different opinions on these topics. For the most part, TikTok users who identify as Democrats and Republicans report seeing a somewhat different mix of political content on the platform. On the issue of abortion, however, TikTok users across the political spectrum are much more likely to say the content they see on the app is mostly pro-choice or supportive or abortion rights rather than anti-abortion or supportive of abortion restrictions. Even among Republican TikTok users, the share who say they mostly see pro-choice content on the app is roughly three times the share who say they mostly see anti-abortion content (17% v. 5%).

TikTok Use and Exposure to Health Information

Just under half of adults say they use the social media app TikTok, including at least six in ten younger adults, Black adults, and Hispanic adults. About four in ten (44%) adults say they use TikTok, including larger shares of younger adults ages 18-29 (66%) and ages 30-49 (54%) and fewer adults ages 50 and older (27%). The app is more popular among people of color with about six in ten Hispanic adults (63%) and Black adults (62%) saying they use TikTok compared to about one-third of White adults (34%). Women are more likely than men to use say they use TikTok (47% v. 40%).

Similar shares – or at least four in ten – Democrats, independents and Republicans report using TikTok. About one in five adults (18%) report using the app every day, including nearly four in ten adults ages 18 to 29 (37%) and a similar share of Hispanic adults (36%).

Most TikTok users report seeing health-related content on the app, including a majority who say they’ve seen information or advice about mental health (66%) or weight loss (66%). About four in ten TikTok users say they’ve seen information or advice about vaccines (42%) on the platform, while about a third say the same about abortion (36%), prescription drugs (34%), and birth control (34%). Younger TikTok users are more likely than older users to say they’ve seen some of these topics on TikTok, with larger shares of users ages 18 to 29 saying they’ve seen information or advice about mental health (91%), weight loss (79%), abortion (59%), or birth control (52%). Women are more likely than men who use TikTok to say they have seen information or advice about mental health (71% v. 61%) or birth control (41% v. 25%) on the app. About half of women of reproductive age – or those ages 18 to 49 – report seeing information or advice on TikTok about prescription birth control on (54%) or abortion (48%). Democrats (35%) and independents (41%) who use TikTok are more likely than Republican users (23%) to report seeing information or advice about birth control on the app; however, similar shares across partisans report seeing information about most of these other subjects.

Perhaps not surprisingly, there is a relationship between frequency of TikTok use and the amount of health-related content people report seeing on the app. Adults who use TikTok “every day” are more likely than those who use the app monthly or less often to say they’ve seen information or advice about each of the health-related topics included in the survey. Notably, larger shares of younger adults and women report using the app every day compared to older adults and men, respectively, which may at least partially explain why these groups report seeing more health-related content on the app.

Trust and Conversations about Health Information on TikTok

Fewer than half of TikTok users say they trust information about health issues that they see on the app, but younger users, Black adults, and Hispanic adults report higher levels of trust. Overall, four in ten TikTok users say they trust information they see about health issues on TikTok at least “somewhat,” including 9% who say they trust such information a “great deal.” Most users say they trust health information on TikTok “not much” (36%) or “not at all” (23%).

TikTok users between the ages of 18-29 are more likely than older adults to say they trust health information on TikTok, with about half (53%) of these younger adults saying they trust information about health issues on the app at least somewhat – including one in six (17%) who say they trust health information on TikTok “a great deal” – compared to smaller shares of older TikTok users. Similar shares of women and men who use TikTok say they trust information about health issues that they see on the app.

Among those who report using TikTok every day (18% of all adults), six in ten (58%) say they trust information about health issues they see on the app at least “somewhat.” Adults who use the app less frequently are less likely than daily users to report trusting health information they see on TikTok. Notably, daily TikTok users are disproportionately made up of younger adults ages 18 to 29.

Few TikTok users overall and across demographics say they’ve talked to a doctor or sought mental health treatment because of something they saw on the app, but younger users and women are more likely than older users and men to report doing so. About one in eight adults who use TikTok say they have ever talked to a doctor or other health care provider at least in part because of something they saw on TikTok (13%) or decided to seek mental health treatment at least in part because of something they saw on the app (12%). Younger users are more likely than older adults to report either of these, with a quarter (26%) of TikTok users between the ages of 18 and 29 saying they decided to seek mental health treatment and one in five (19%) saying they talked to a doctor or health care provider because of something they saw on the app. Among TikTok users, women are about twice as likely as men to say they talked to a doctor or health care provider (17% v. 7%) or decided to seek mental health treatment due to something they saw on the app (15% v. 8%). The share who report talking to a doctor or seeking mental health treatment at least partly because of something they saw on TikTok rises to about one in five among those who use TikTok every day (20% and 18%, respectively). Nonetheless, most of these daily users say they have not followed up with a doctor or sought mental mental health treatment due to content they’ve seen on the app.

While most TikTok users say content they’ve seen on the app has not affected their confidence in science and scientists, prescription birth control, or the safety and effectiveness of vaccines, users are more likely to say content on the app has made them more confident in science and scientists rather than less confident. At least seven in ten TikTok users say information they’ve seen on the app has not affected their confidence in the safety of prescription birth control (76%), the safety and effectiveness of vaccines (73%), or science and scientists (70%).

When it comes to trust in science and scientists, TikTok users are nearly three times as likely to say content they’ve seen on the app has made them more confident in science and scientists rather than less confident (22% vs. 8%). By contrast, when it comes to confidence in prescription birth control and the safety and effectiveness of vaccines similar shares of TikTok users say content they’ve seen on the app has made them more confident as less confident (12% each for birth control, 12% and 15% for vaccines). Similar shares of women and men – including women of reproductive age under the age of 50 -- who use TikTok say content on the app has made them either more or less confident in prescription birth control, with about three in four saying it has not made a difference.

Most TikTok users across demographics say content on the app has not affected their confidence in the safety and effectiveness of vaccines, however Republicans are more likely to say TikTok content has made them less confident in vaccines rather than more confident. Overall, about one in seven users say content on TikTok has made them “less confident” (15%) in the safety and effectiveness of vaccines and a similar share (12%) say it has made them “more confident.” For most groups across age, partisanship, race and ethnicity, the shares saying TikTok content increased their confidence in vaccines is similar to the share who say it decreased their confidence.

However, one group breaks with this pattern: Republican TikTok users are about three times as likely to say content on the app has made them “less confident” in the safety and effectiveness of vaccines rather than “more confident” (24% v. 7%).

Vaccine misinformation may affect parents’ confidence in vaccinating their young children, and recent KFF polling has shown that about a quarter of parents report believing false information about measles vaccines. Just under one in five (17%) parents who use TikTok say content they’ve seen on the app has made them “less confident” in the safety and effectiveness of vaccines while a similar share of parents say it has made them “more confident” (11%). However, most parents who use TikTok say the content they’ve seen on the app hasn’t affected their confidence in the safety and effectiveness of vaccines.

Election Issues on TikTok

As the 2024 presidential election approaches, TikTok users may be exposed to election-related topics and one-sided political discourse, particularly as growing shares of U.S. adults report regularly getting their news from the app. However, like other social media platforms, the content users see on their TikTok feeds may vary from person-to-person, as it is curated by the app’s proprietary algorithm.

When it comes to TikTok content centered on some key election issues, including the presidential candidates, abortion, guns, and immigration, most users report either not seeing content related to these issues or seeing content that is a mix of different opinions on these topics. For the most part, TikTok users who identify as Democrats and Republicans report seeing a somewhat different mix of political content, particularly when it comes to presidential candidates, but these patterns are not universal across the topics included in the survey.

It’s important to note that this survey measures self-report views of TikTok content, which may not necessarily match up with other studies that look at actual content in users’ video feeds.

Overall, few TikTok users report mostly seeing one-sided content related to the presidential candidates, but slightly larger shares say the content they see on the app is mostly pro-Donald Trump or anti-Joe Biden rather than mostly pro-Biden or anti-Trump, with even larger tilts toward pro-Trump or anti-Biden content among Republican users and young adults. The shares of TikTok users who say the content they see on the app is mostly Pro-Donald Trump or anti-Joe Biden (14%) is slightly higher than the share who say the content they see is mostly pro-Joe Biden or anti-Donald Trump (10%), with one in three (34%) saying the content they see is a mix of both viewpoints, and four in ten saying they don’t see content related to either Trump or Biden on TikTok.

Perhaps not surprisingly, Republican TikTok users are about three times as likely to say the content they see is mostly pro-Trump/anti-Biden rather than pro-Biden/anti-Trump (29% v. 10%), while Democrats are about twice as likely to say the content they see mostly favors Biden rather than Trump (16% vs. 7%).

Notably, TikTok users ages 18 to 29 and Hispanic TikTok users are about twice as likely to say most of the content they see is pro-Trump or anti-Biden rather than pro-Biden or anti-Trump (21% vs. 11% for young users and 18% vs. 8% for Hispanic adults).

Across partisanship and other demographics, the share of TikTok users who say the content they see on the app is mostly pro-choice or supportive of abortion rights (24%) is far larger than the share who say the content they see is mostly anti-abortion or supportive of abortion restrictions (4%). The share of TikTok users who say they mostly see pro-choice content rises to four in ten (42%) among those ages 18 to 29 – larger than the shares who say the same among those ages 30 to 49 (22%) and 50 and older (8%). These younger users are also more likely than older adults to report seeing any abortion-related content on TikTok.

Few users across partisan groups (including just 5% of Republicans) report seeing mostly anti-abortion content on TikTok, though Democrats who use TikTok are more likely than Republican users to say the content they see is mostly pro-choice of supportive of abortion rights (32% v. 17%).

Overall, men and women who use TikTok are each much more likely to report seeing mostly pro-choice content than to say they see mostly anti-abortion content. While about three in four (27%) women who use TikTok say the content they see is mostly pro-choice, this rises to about one-third (34%) among women ages 18 to 49.

Despite these differences, most users – including at least half across partisanship, age, and gender – say the content they see related to abortion on TikTok is either a mix of both pro and anti-abortion viewpoints (22%) or they don’t see this content related to abortion at all (50%).

Most TikTok users who report seeing gun-related content on the app say they see a mix of viewpoints, but Democrats and younger users are more likely to report seeing mostly anti-gun content. One quarter of TikTok users say they see a mix of gun-related viewpoints on the app, while about one in ten each say they mostly see pro-gun content (8%) or anti-gun content (10%) and over half (57%) report not seeing gun-related content on TikTok.

Democrats who use TikTok are about twice as likely to say they mostly see anti-gun content as opposed to pro-gun content on the app (16% v. 7%). Younger TikTok users ages 18 to 29 are about twice as likely to say they mostly see anti-gun content than pro-gun content (18% v. 9%), while other age groups report seeing either viewpoint in similar shares.

Among all TikTok users, and across these demographic groups, most users say the content they see is either a mix of both pro and anti-gun or say they do not see gun-related content on the app.

TikTok users report seeing a mix of immigration-related content on the app, with no clear differences by partisanship. For immigration-related content, somewhat larger shares of TikTok users say the content they see is mostly pro-immigration (15%) compared to those who say they mostly see anti-immigration content (10%). Most users, however, say the content they see is either a mix of both pro and anti-immigration viewpoints (27%) or they don’t see this content on TikTok (47%). Despite often bitter partisan debates over the country’s approach to immigration policy (an issue that has ranked high among voters’ top issues ahead the 2024 election) among Democrats, independents and Republicans who use TikTok, similar shares say the content they see on the app is either mostly pro-immigration or anti-immigration, with at least one in five across these groups saying they see a mix of viewpoints.

Younger TikTok users ages 18 to 29 are about twice as likely to say the content they see on the app is mostly pro-immigration rather than anti-immigration (25% v. 13%), but among older age groups, similar shares report seeing either mostly pro-immigration content or mostly anti- immigration content.

This KFF Health Tracking Poll/Health Misinformation Tracking Poll was designed and analyzed by public opinion researchers at KFF. The survey was conducted April 23-May 1, 2024, online and by telephone among a nationally representative sample of 1,479 U.S. adults in English (1,396) and in Spanish (83). The sample includes 1,201 adults (n=65 in Spanish) reached through the SSRS Opinion Panel either online (n=1,176) or over the phone (n=25). The SSRS Opinion Panel is a nationally representative probability-based panel where panel members are recruited randomly in one of two ways: (a) Through invitations mailed to respondents randomly sampled from an Address-Based Sample (ABS) provided by Marketing Systems Groups (MSG) through the U.S. Postal Service’s Computerized Delivery Sequence (CDS); (b) from a dual-frame random digit dial (RDD) sample provided by MSG. For the online panel component, invitations were sent to panel members by email followed by up to three reminder emails.

Another 278 (n=18 in Spanish) interviews were conducted from a random digit dial telephone sample of prepaid cell phone numbers obtained through MSG. Phone numbers used for the prepaid cell phone component were randomly generated from a cell phone sampling frame with disproportionate stratification aimed at reaching Hispanic and non-Hispanic Black respondents. Stratification was based on incidence of the race/ethnicity groups within each frame.

Respondents in the phone samples received a $15 incentive via a check received by mail, and web respondents received a $5 electronic gift card incentive (some harder-to-reach groups received a $10 electronic gift card). In order to ensure data quality, cases were removed if they failed two or more quality checks: (1) attention check questions in the online version of the questionnaire, (2) had over 30% item non-response, or (3) had a length less than one quarter of the mean length by mode. Based on this criterion, two cases were removed.

The combined cell phone and panel samples were weighted to match the sample’s demographics to the national U.S. adult population using data from the Census Bureau’s 2023 Current Population Survey (CPS), September 2021 Volunteering and Civic Life Supplement data from the CPS, and the 2023 KFF Benchmarking survey with ABS and prepaid cell phone samples. The demographic variables included in weighting for the general population sample are sex, age, education, race/ethnicity, region, civic engagement, frequency of internet use, political party identification by race/ethnicity, and education. The sample of registered voters was weighted separately to match the U.S. registered voter population using parameters above plus recalled vote in the 2020 presidential election by county quintiles grouped by Trump vote share. Both weights account for differences in the probability of selection for each sample type (prepaid cell phone and panel). This includes adjustment for the sample design and geographic stratification of the cell phone sample, within household probability of selection, and the design of the panel-recruitment procedure.

The margin of sampling error including the design effect for the full sample is plus or minus 3 percentage points and is plus or minus 4 percentage points for registered voters. Numbers of respondents and margins of sampling error for key subgroups are shown in the table below. For results based on other subgroups, the margin of sampling error may be higher. Sample sizes and margins of sampling error for other subgroups are available by request. Sampling error is only one of many potential sources of error and there may be other unmeasured error in this or any other public opinion poll. KFF public opinion and survey research is a charter member of the Transparency Initiative of the American Association for Public Opinion Research.

 

Note: Originally published in May 2023, this brief has been updated and expanded to address ongoing litigation in many states that is underway to challenge exceptions laws.

Key Takeaways

Abortion is currently banned in 14 states and many other states have attempted to ban or severely restrict access to abortion. All of these bans have an exception to prevent the death of the pregnant person and some bans include other exceptions that fall into three categories: when there is risk to the health of the pregnant person, when the pregnancy is the result of rape or incest, and when there is a lethal fetal anomaly.

• In practice, health and life exceptions to bans have often proven to be unworkable, except in the most extreme circumstances, and have sometimes prevented physicians from practicing evidence-based medicine.
• Abortion bans and restrictions have led physicians to delay providing miscarriage management care. Many states allow for the removal of a dead fetus or embryo, but pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity or until the miscarriage puts the life of the pregnant person in jeopardy.
• Mental health exceptions are rare despite the fact that 20% of pregnancy-related deaths are attributable to mental health conditions.
• Law enforcement involvement is often required to document rape and incest, which often prevents survivors from accessing abortion care. Furthermore, survivors in states where abortion care is restricted can have difficulty finding an abortion provider.
• In many states there is more than one abortion ban in the books, and in some of those states, the exception provisions in the bans are often at odds with each other. These multiple bans and varying exceptions create confusion among patients and providers.

Introduction

Since the Supreme Court’s Dobbs decision overturned Roe v. Wade, state abortion bans and the exceptions they contain – or lack – have garnered significant attention. The Supreme Court is considering a case this term about whether the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients who present to their emergency rooms, preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient, even when the abortion does not qualify foris not including in an exception to the state’s abortion ban. Discussions about exceptions to state abortion bans often obscure the reality that many of these exceptions can be unworkable in practice. There are reports of people being unable to obtain abortions, despite the fact that their pregnancies fall into these broad exception categories. While there is no accurate estimate of the number of people seeking abortion care in circumstances that qualify for an exception in states than ban abortion, the number of people who have received abortion care post-Dobbs in states that have banned abortion is very low.  Many of the exceptions included in these bans use definitions that are vague, narrow, and non-clinical, and effectively remove the ability of health care providers to best manage the care of pregnant people, instead leaving that decision to the state or the clinician’s home institution. Further complicating matters, several states have multiple bans in effect, often with contradicting definitions, requirements, exceptions, and standards, creating ambiguity for clinicians and their patients. This brief analyzes the exceptions to abortion bans and discusses how their purported aims to provide life-saving care may not be achieved in practice.

What kinds of exceptions do abortion bans contain?

Exceptions to state abortion bans generally fall into four general categories: to prevent the death of the pregnant person, to preserve the health of the pregnant person, when the pregnancy is the result of rape or incest, and when the embryo or fetus has lethal anomalies incompatible with life.

To prevent the death of the pregnant person

All state abortion bans currently in effect contain exceptions to “prevent the death” or “preserve the life” of the pregnant person. As explained in further detail in the section below, these exceptions may create difficulties for physicians, as it is unclear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply and the determination is not up to the physician treating the pregnant patient.

When there is risk to the health of the pregnant person

Many state bans currently in effect – with the exception of bans in Arkansas, Idaho, Mississippi, Oklahoma, South Dakotan, and Texas – contain some form of health exception. Exceptions to preserve the health of the pregnant person can vary (sometimes significantly) from state to state (Table 1).

Most states with bans that contain a health exception permit abortion care when there is a serious risk of substantial and irreversible impairment of a major bodily function. These exceptions are limited by the lack of specific clinical definitions of the conditions qualifying for the exception. Only the Arizona 15-week LMP (last menstrual period) limit explicitly defines the bodily functions that may be considered “major.”  The other states that use this language in their bans do not define what constitutes a “major bodily function,” nor what constitutes a “substantial impairment” to a major bodily function. This vague language puts physicians providing care to pregnant people in a difficult situation should their patients need an abortion to treat a condition jeopardizing their health and can leave the determination of whether an abortion can be legally provided to lawyers for the institution in which the clinician practices. For instance, in South Carolina where the 6-week LMP abortion limit has a health exception, the law lists a couple of conditions that may fall under this exception, such as severe pre-eclampsia and uterine rupture, but with no further detail. Using this language as guidance, it would be difficult for physicians to know if a significant health issue would fall under the exception. The difficulties presented by the simultaneous vagueness and narrowness of the exceptions are exacerbated by the lack of deference given to clinicians’ medical judgment under these bans.

However, even if the terms in the exceptions were defined more clearly, they would still exclude many health conditions pregnant people face. In Georgia, for example, providers challenging the ban note that the exceptions do not permit abortion care when it is needed to prevent: “(1) substantial but reversible physical impairment of a major bodily function, (2) less than ‘substantial’ but irreversible physical impairment of a major bodily function, or (3) substantial and irreversible physical impairment of a bodily function that is not ‘major.’” A medical condition may still be a significant health event, yet not qualify under the exceptions, even if their limits were more clearly defined.

MENTAL HEALTH

Mental health conditions account for over 20% of pregnancy-related deaths in the US, yet almost all states with health exceptions limit them to conditions affecting physical health, with some going further and explicitly precluding emotional or psychological health conditions. Alabama, the only state that includes mental health concerns in its health exception, requires a psychiatrist to diagnose the pregnant person with a “serious mental illness” and document it is likely the person will engage in behavior that could result in their death or the death of the fetus that due to their mental health condition. The law does not define “serious mental illness” and does not allow physicians to determine what serious mental illnesses qualify for the exception. In addition, abortion bans and restrictions in Georgia, Florida, Idaho, Iowa, Kentucky, Louisiana, Nebraska, North Carolina, North Dakota, South Carolina, Tennessee, West Virginia, and Wyoming explicitly exclude mental/emotional health. Several other states (Texas, Oklahoma, Mississippi, the remaining Kentucky ban, and one of Arkansas' total bans) limit their life and/or health exceptions to physical conditions, without explicitly calling out mental/emotional health exceptions.

ECTOPIC PREGNANCIES AND MISCARRIAGES

Some states’ abortion laws specify that care for ectopic pregnancies and pregnancy loss is not criminalized in its statutes. Most states with these provisions in their bans allow for the removal of a dead fetus or embryo, but not for miscarriage care, generally. This means that pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity. There have already been reports of such situations in Texas and Louisiana. In Louisiana, for example, a pregnant woman went to the hospital after experiencing sharp pain and bleeding. She was informed her fetus had likely stopped growing a few weeks prior, as its size did not correspond to the length of her pregnancy, and that it had very faint cardiac activity. Despite the pain and the blood loss she was experiencing, she could not receive the regimen of mifepristone and misoprostol commonly prescribed to pregnant patients who are miscarrying to ensure that the pregnancy is safely expelled from the body completely in a timely manner, thereby decreasing the risk of sepsis and infection. Instead, she had to wait for the miscarriage to progress without medical intervention, which would have expedited the process and reduced her medical risk. In states where the abortion bans do not clarify that miscarriage care is not criminalized – even when there is still detectable cardiac activity – pregnant people may not be able to receive care to manage their pregnancy loss unless and until it becomes a medical emergency.

GREATER RISK TO THE HEALTH OF PREGNANT PEOPLE

In deciding whether or not to provide abortion care to preserve the health of a pregnant patient, physicians now face the risk of a jury or the state disagreeing with their judgment about the gravity of the health risk the pregnant person was experiencing, and as a result, face prison time, monetary fines, and loss of professional license. Before the Supreme Court’s decision in Dobbs, the decision to have an abortion pre-viability when facing a health risk was made by the pregnant person in consultation with medical professionals in consideration of the needs and overall health history of the pregnant patient. In states with abortion bans, when deciding whether or not to provide abortion care to preserve the health of a pregnant patient, physicians now face the risk of prosecution, prison time, monetary fines, and loss of professional license.

In state court challenges against the bans, providers have argued that the vagueness of the bans is unconstitutional, since it places them in a situation where it is unclear how they might follow the law. As a result, physicians may be more reluctant to provide abortion care when pregnant patients present with serious medical conditions and may deny abortion care to pregnant people with conditions that threaten their health until their condition deteriorates and the narrow exceptions inarguably apply. This delay in care, however, creates greater and avoidable risks to the health of the pregnant person. Additionally, many conditions that threaten the health of pregnant people are not included in all or most health exceptions.

The difficulties these bans and their unclear exceptions create may additionally deter physicians from practicing medicine in states that ban abortion. There have already been reports of physicians expressing reluctance or refusing to relocate to these states, as well as physicians leaving these states due to their restrictive laws and fewer medical school graduates applying for residencies in these states. A substantial portion of these states’ residents already live in maternity deserts – areas where there are no obstetric providers or birth centers – and studies have shown that maternal mortality rates are higher in states that restrict abortion. Physicians being deterred from practicing in states with restrictive abortion laws may exacerbate these disparities in access to obstetric care and health outcomes.

THE EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT (EMTALA)

Enacted in 1986, the Emergency Medical Treatment and Active Labor Act (EMTALA) requires Medicare-enrolled hospitals to perform an appropriate medical screening examination to any patient who presents to their dedicated emergency department. If a patient is identified as having an emergency medical condition, the hospital must provide stabilizing treatment within the hospital’s capability or transfer the patient to another medical facility.

As states were starting to implement abortion bans after the Dobbs decision, in July 2022, the Department of Health and Human Services (HHS) issued guidance regarding the enforcement of EMTALA that clarifies hospitals and physicians have obligations to provide stabilizing care, including abortion in medically appropriate circumstances, when a patient presenting at an emergency department is experiencing an emergency medical condition.

After HHS issued this guidance, two lawsuits were filed. HHS sued the State of Idaho to block enforcement of Idaho’s abortion ban to the extent it conflicts with EMTALA, and the State of Texas sued to block enforcement of the HHS guidance in Texas. The Supreme Court is considering the case from Idaho and a decision is pending.

At stake in this case is whether EMTALA preempts state abortion laws and requires hospitals to provide abortion care when it is necessary to stabilize a patient’s condition, even when this abortion care violates state law. While all state abortion bans have an exception for pregnancies that jeopardize the life of a pregnant person, some do not have an exception that would allow an abortion to preserve the health of the pregnant person. Even in states with health exceptions, the exception might be very narrow and not well defined, leaving significant gaps in emergency medical care for pregnant people. EMTALA, however, requires hospitals to provide stabilizing care to patients with emergency medical conditions, including conditions that may harm their health. According to the HHS guidance issued in the wake of the Dobbs decision, EMTALA requires hospitals to provide abortion care to pregnant patients with emergency medical conditions when abortion is necessary to stabilize the patient’s condition. However, Idaho contends that EMTALA does not require hospitals to provide treatment that violates state law. The Court’s decision in this case could impact access to abortion in emergency situations across the country and potentially lay the foundation for future challenges involving state laws granting fetal personhood.

Sexual Assault Exceptions

A few of the state abortion bans contain exceptions for pregnancies resulting from rape or incest, generally requiring that the sexual assault be reported to law enforcement. Some states allow for a Child Protective Services (CPS) report in lieu of a law enforcement report for minors who are survivors of sexual assault or incest.

It is well documented that survivors are often afraid to report sexual violence to the police due to fear of retaliation and the belief that law enforcement would not or could not do anything to help. It is estimated that only 21% of sexual assaults are reported to law enforcement. Even for survivors who do report to law enforcement, state abortion bans do not make clear exactly what information needs to be given to a provider to make it clear that the abortion would be legal in that state. Reporting requirements place barriers in the way of survivors seeking abortion care in these states.

Among the few sexual assault exceptions, some have specific gestational limits. For instance, the total ban currently in effect in West Virginia contains an exception for cases of rape or incest, but it is limited to 8 weeks from the last menstrual period (LMP) for adults and 14 weeks LMP for minors.

Although sexual assault exceptions are intended to protect survivors, experts agree that they rarely work. There is anecdotal evidence of survivors in states with rape exceptions and who have compiled the necessary documentation, but still not being able to access abortion because they couldn’t find any abortion providers in their state.

Lethal Fetal Anomaly Exceptions

Bans in several states contain exceptions for lethal fetal anomalies, usually limited to those anomalies that would result in the death of the baby at birth or soon after. As with health exceptions, lethal fetal anomaly exceptions are poorly defined and limited in statutes. The only state with this kind of exception that has a comprehensive list of conditions that fall under this category is Louisiana, but since the state has multiple abortion bans in effect (one of which does not include exceptions for fatal fetal anomalies), the applicability of this exception is still unclear. Other states, like Indiana, provide some general criteria, such as how long after birth the baby can be expected to live for a pregnancy to fall under the fetal anomaly. Any condition that would result in a life expectancy shorter than three months fits under the exception. The religious freedom lawsuit against the state’s ban – Anonymous Plaintiffs v. Medical Licensing Board of Indiana -- specifically challenges the narrow limits of the exception, arguing that other common conditions, such as Tay-Sachs disease would result in the death very early in childhood.

What happens in states with more than one abortion ban in effect?

In many states there is more than one abortion ban in the books, and in some of those states, the exception provisions in the bans are at odds with each other. In Louisiana, two bans and a 15-week LMP limit are in effect, but only one of the total bans and the 15-week limit have the same exceptions; the remaining total ban does not. One of the total criminal bans in the state has exceptions to prevent the death or substantial risk of death, of the pregnant person and to prevent “serious, permanent impairment of a life-sustaining organ”. The state’s other total ban and the 15-week limit have exceptions for these same cases and additionally in cases of fatal fetal anomalies, and clarify that the bans’ prohibitions do not apply for ectopic pregnancies and miscarriages. The conflicting exceptions in the bans result in a situation where the only real exceptions in the state are for cases where an abortion is necessary to prevent the death of the pregnant person or to prevent serious, permanent impairment of a life-sustaining organ. Providing abortion care under any other exception in the states’ other total ban or 15-week limit would open physicians to criminal penalties and loss of license.

Mississippi is another state with multiple bans in effect that contain contradicting exceptions. The state’s total ban only has exceptions for cases when an abortion is necessary to preserve the life of the pregnant person or when the pregnancy was caused by rape (there is no exception for incest in the state). However, the state’s 15-week LMP ban contains exceptions for fatal fetal abnormalities and serious risk of substantial and irreversible impairment of a major bodily function, along with a life exception. In situations where there is more than one ban in effect, it might seem that the easiest way to follow the law would be to adhere to the abortion ban with the strictest gestational limit. This would not suffice in Mississippi, however, since the total ban contains an exception for pregnancies caused by rape, but the state’s 15-week LMP ban does not contain such an exception. Therefore, following any one of the state’s abortion bans would not remove the legal risk of providing abortion care in the state. Instead, providers must assess how the abortion bans and their exceptions work in conjunction.

Conclusion

Although a lot of attention has been devoted to debates about exceptions in abortion bans, many of these exceptions are not workable in practice. Outside of testimony from providers, it is difficult to assess how many people who qualify for abortion care under the exceptions are actually able to do so, since states underreport or do not report this information. However, it is apparent these bans create barriers to accessing abortion care, even in situations where the exceptions they outline should apply. Most importantly, these bans place the health and lives of pregnant people at risk by potentially preventing physicians from providing medically appropriate care. The Supreme Court’s decision in Idaho v. United States will determine whether EMTALA preempts state laws and requires hospitals to provide abortion care to stabilize pregnant patients when “necessary to assure that no material deterioration of the condition is likely to occur.” If the Court rules in favor of Idaho, the inability to provide evidence-based care may additionally make physicians reluctant to practice medicine in restrictive states, amplifying already-existing discrepancies in ability to access obstetric care and adverse maternal and fetal outcomes.