Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts
While all eyes were on Texas and the recent case of Kate Cox, a woman seeking a court order allowing her abortion under an exception to the Texas abortion ban, the conflict could have played out in many states. Like many physicians in states with abortion bans, Ms. Cox’s physician and the hospital where she practices did not want to risk criminal and professional penalties by providing an abortion without obtaining a court order that it qualified for an exception. The KFF 2023 National OBGYN survey found that over half of OBGYNs practicing in states where abortion is banned reported being concerned about their legal risk when making decisions about patient care and the necessity for abortions. The risk to doctors is so high that many doctors are hesitant to provide life-saving abortion care unless the threat to life is imminent. The difficulties presented by the simultaneous vagueness and narrowness of the exceptions in state abortion bans are exacerbated by the lack of deference given to clinicians’ medical judgment to determine when an abortion falls under an exception. This leaves pregnant people who require abortion care in a potentially untenable situation, not just in Texas but any state that has a narrow exception to their abortion ban.
The case in Texas highlights the impossible situation that many doctors and patients find themselves in when faced with a pregnancy that may qualify for an exception. Fearing prosecution for providing abortion care that she believed it fit under the abortion ban’s exception based upon her good faith medical judgement, Ms. Cox’s physician asked a Texas District Court to determine that providing the abortion was not a violation of the state’s ban. After that court effectively signed off on the physician’s judgement by issuing an order blocking the Texas Attorney General from enforcing the abortion ban against Ms. Cox’s physician and hospital, the Attorney General wrote a letter to the hospital stating that his office would still enforce the state abortion ban if the abortion care was provided. The Texas Supreme Court soon overruled the district court order by stating that it did not want to get involved in medical judgments and it is the doctor, not the courts, who decide who qualifies for an abortion. However, if doctors are prosecuted for providing abortions under an exception, the courts will nonetheless end up determining whether the abortions qualified for an exception and physicians will still be vulnerable to having their judgment second-guessed by judges and juries. Unable to get a determination from a court ahead of providing care, yet vulnerable to prosecution after providing care, doctors and their patients caught in a “Catch-22.” In this case, Ms. Cox was reportedly able to leave the state to receive the abortion care her doctor believed she needed, but others may not have the resources to travel out of state to get medically-indicated care.
Medical Exceptions in State Abortion Bans Are Vague
All 20 states with abortion and gestation bans currently in effect contain exceptions to “prevent the death” or “preserve the life” of the pregnant person. Like Texas, these exceptions are not clear 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 explicitly up to the physician treating the pregnant patient.
Five states with abortion bans in effect (Arkansas, Idaho, Mississippi, Oklahoma, and South Dakota) do not have any exceptions for the “health” of the pregnant person, only to preserve “life.” The remaining 15 states with bans and restrictions in effect contain a health exception. Most of these exceptions permit abortion care when there is a serious risk of substantial and irreversible impairment of a major bodily function. The ability to operationalize these exceptions, however, is limited by the lack of specific clinical definitions of the conditions qualifying for the exception. Arizona’s ban explicitly defines the bodily functions that may be considered “major.” Most 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 can put physicians providing care to pregnant people in an untenable situation should their patients need an abortion to treat a condition jeopardizing their health, and ultimately can leave the determination of whether an abortion can be legally provided to lawyers for the institution in which the clinician practices or the courts.
‘Reasonable Medical Judgment’ vs. ‘Good Faith’
The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their “reasonable medical judgement.” This standard leaves physicians in a legally vulnerable situation and understandably reluctant to certify a pregnancy as qualifying for a life or health exception. This reluctance stems from the concern of being found guilty of violating the law if the court relies on the testimony of other medical experts that say that the treating physician didn’t meet the standard for “reasonable medical judgement.” Due to the concern that a court would later second-guess her judgment, in the Texas lawsuit, Ms. Cox’s physician requested an order from the court allowing her to perform the abortion on the basis of her “good faith” belief that her patient fell under the exception. Additionally, she was unsure how close to death Ms. Cox needed to be before she would be permitted to legally perform the abortion in the state and sought the court’s confirmation. While the District court agreed with the plaintiffs that the case qualified for an exception, the Texas Supreme Court did not. They did not rule specifically on the medical situation facing the patient. Instead, they found that the physician’s “good faith belief” was insufficient to qualify for the exception, and only abortions that are certified to be necessary under the “reasonable medical judgement” standard are allowable under Texas law. A similar situation could arise in the other states that have narrow life or health exceptions and don’t grant deference to the physician’s judgment.
Currently, most states with health or life exceptions require a physician to exercise “reasonable medical judgement” to determine if the exception applies, though a few do not specify a standard. Arizona, however, requires only that a physician make the determination based on their “good faith clinical judgment.” Some states with more than one abortion ban or restriction on the books have different standards in each of these laws, further complicating what a doctor needs to do to certify that an abortion qualifies for an exception
While the case in Texas garnered national attention, this situation will inevitably arise again in states with abortion bans or restrictions. People seeking abortion care – even when their physicians believe they may qualify for an exception – will likely have to travel out of state if they are able, risk their health, or wait until the pregnancy jeopardizes their life.