By James G. Hodge, Jr., Jennifer Piatt, Erica N. White, Summer Ghaith, Madisyn Puchebner, and C. McKenna Sauer
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion, laws went into effect in multiple states that restrict when abortions may be provided, including during potentially life-threatening emergencies.
To the extent highly restrictive, amorphous, and indeterminate abortion bans contravene physician implementation of life-saving interventions for pregnant patients — and thus infringe upon the Fourteenth Amendment’s protection of the right to life — they are unconstitutional.
State limits on emergency abortions. Post Dobbs, 26 states’ legislatures have significantly restricted or banned abortion access, including during emergencies. The implementation of some of these laws has been complicated further via litigation. Anticipating Roe’s reversal in March 2022, Arizona’s legislature passed a 15-week abortion ban with limited exceptions when the mother is at risk of permanent injury or death. On September 23, a Pima County judge allowed enforcement of an antiquated 19th-century abortion ban allowing care only to save the mother’s life. Arizona abortion providers do not know which law to follow, much less how to apply narrow emergency exceptions.
In Wisconsin, anti-abortion advocates seek to enforce a 173-year-old ban similarly providing only a limited exception to “save the life of the mother.” Texas’ anti-abortion statute provides exceptions only when the patient “has a life-threatening physical condition,” which are not identified. A Texas federal district court determined in August 2022 that an emergency condition “must be present, rather than likely to be emergent,” which fails to guide real-time decisions of doctors treating pregnant patients in emergencies. Physicians who unlawfully provide abortions in states like Texas (and elsewhere) face criminal sanctions or civil claims.
Determining emergency medical conditions. According to the New York Times and other sources, some pregnant patients experience life-threatening circumstances or profound risks of disability before exceptions to state laws permit abortions to be performed. This raises the question: what constitutes an emergency medical condition (EMC) that comports with limited exceptions to state anti-abortion prohibitions?
The federal Emergency Medical Treatment and Active Labor Act (EMTALA) defines an EMC as one where the “absence of immediate medical attention could be expected to place the health of the individual in serious jeopardy or result in serious bodily dysfunction.” Additional federal guidance typify EMCs as “likely or certain to become emergent without stabilizing treatment,” such as ectopic pregnancies. Pregnancy-related EMCs include hypertension, pre-eclampsia, HELLP syndrome, chorioamnionitis, and placental abruption.
The American College of Obstetricians and Gynecologists (ACOG) and other medical associations identify additional conditions that could become life-threatening in pregnant patients (e.g., Alport syndrome, valvular heart disease, lupus, diabetes, cancers requiring immediate treatment, mental illness). EMCs like pre-eclampsia experienced in a prior pregnancy raise risks of similar subsequent episodes. As ACOG notes, EMC lists do not adequately capture when particular clinical situations constitute emergencies for which abortion care is warranted. Real-time consideration of each patients’ unique conditions or symptoms is essential.
Interfering with doctor’s medical discretion. “[M]edical ethics require doctors to provide the best available treatment to prevent patients from reaching [the] point” at which death is a potential risk. State laws inhibiting abortion care for EMCs, however, require physicians to choose between breaking oaths to prevent patient harms and potential license revocation, civil liability, or criminal prosecution.
Abortion is a specific, efficacious treatment to prevent life-threatening complications for numerous EMCs consistent with medical standards of care. Courts typically defer to physician discretion to determine whether an abortion is medically necessary (e.g., Women’s Medical Professional Corp. v. Voinovich (1995)). While some states’ anti-abortion statutes (e.g., Louisiana) explicitly refer to doctors’ discretion to ascertain these conditions, many do not.
The effects of restrictive anti-abortion laws on physician attitudes are palpable. Doctors claim new anti-abortion laws inhibit their ability to provide emergency services that months ago were consistent with prevailing medical standards of care. In a July 2022 poll of over 240 physicians, 89% of respondents indicated they plan to make treatment decisions based on legal safety rather than medical judgment. Doctors facing vague abortion legal exceptions are reticent to provide some critical services. Medico-legal panels in multiple hospitals are hastily drafting diffuse compliance guidelines regarding emergency abortion care.
Patients’ rights to life. Ambiguous legal exceptions for abortions directly implicate patients’ right to life interests. The Fourteenth Amendment prohibits deprivations of “life, liberty, or property, without due process of law.” Rights arising pursuant to substantive due process are expansive. Supreme Court interpretations of “liberty” interests, for example, include rights to contraception, sexual intimacy, marriage equality, and, previously, abortion. Whether Dobbs threatens other liberty interests is projected but currently unknown.
Supreme Court interpretations of the right to life are most settled in criminal cases. In Tennessee v. Garner (1985), involving a Fourth Amendment challenge to a police shooting, Justice White affirmed for a 7-2 majority that a “suspect’s fundamental interest in his own life need not be elaborated upon.” In criminal contexts, individuals are protected from unwarranted governmental actions that directly threaten their lives.
Like other constitutional guarantees, however, the right to life is not absolute. Governmental interests are at balance. Thus, the Court has declined to support rights to assisted suicide in Washington v. Glucksberg (1997) and Vacco v. Quill (1997). In Cruzan v. Missouri Department of Health (1990) Chief Justice Rehnquist acknowledged a patient’s liberty interests in refusing medical treatment despite states’ interests in preserving life.
How the Supreme Court may address patients’ rights to life under state abortion restrictions is uncertain. Some state appellate court guidance may be instructive. In 1969 Roe-analogue People v. Belous, California’s Supreme Court observed that “[t]he woman’s right to life is involved because childbirth involves risks of death.” In 1995, the Wisconsin Court of Appeals invalidated a statute requiring patient consent for efficacious electroconvulsive treatment, reasoning that an incompetent patient had been denied “the only medical treatment likely to save her life.”
Claims of unconstitutional interference with a patient’s right to life are warranted whenever states legislatively disallow emergency medical care that directly risks pregnant individuals’ lives. Litigants have recently challenged Oklahoma’s anti-abortion exceptions on state constitutional grounds, including patients’ rights to life and liberty. Potential constitutional recognition of fetal personhood, however, may seriously obfuscate right to life analyses.
Overriding state anti-abortion laws. Legal clarification of medical standards of care regarding emergency abortions is desperately needed, but highly contentious. Generally, the judiciary refrains from interfering with medical decision-making. As a Texas state appellate court noted in 2021, “judges are not doctors [and] cannot practice medicine from the bench.”
Conversely, anti-abortion state legislators seek to directly influence medical practice, disregarding best practices, physician discretion, and patients’ lives. Resulting laws lending to medical denials, patient delays, and altered standards of care are not just ill-advised; when these laws expressly and directly interfere with physician discretion to implement reasonable, evidence-based treatments to alleviate patients’ EMCs, they cross a constitutional line.
James G. Hodge, Jr., JD, LLM, is the Peter Kiewit Foundation Professor of Law and Director, Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, Arizona State University (ASU), Phoenix, AZ.
Jennifer L. Piatt, JD, is a Research Scholar with the Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, ASU.
Erica N. White, JD, is a Research Scholar with the Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, ASU.
Summer Ghaith is a Senior Legal Researcher with the Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, ASU.
Madisyn Puchebner is a Senior Legal Researcher with the Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, ASU.
C. McKenna Sauer is a Legal Researcher with the Center for Public Health Law and Policy, at the Sandra Day O’Connor College of Law, ASU.