Why Doctors Won’t Use Legal Abortion Exceptions in 2024 Despite Rising Deaths

With the upcoming election and recent revelations about Amber Nicole Thurman and Candi Miller losing their lives under Georgia’s abortion ban, it’s tempting to stick to partisan political scenarios when pregnant women become emergent. According to liberals, conservative lawmakers cannot write clear exceptions to the abortion ban. Liberals argue that they routinely write vague exceptions as a smokescreen. According to conservatives, liberals label the exceptions as vague and confusing to scare voters into supporting abortion rights, leading to fearful doctors refusing to perform abortions.

Here’s what I know: Several women besides Amber and Candi have died. The the numbers paint a bleak picture. In Texas alone, infant mortality increased 12.9 percent in the year following an abortion ban—compared to just 1.8 percent in states without bans. Even before Dobbs, more than 80 percent of pregnancy-related deaths were preventable. Now, according to a KFF survey, 68 percent of obstetricians and gynecologists report that the Dobbs decision has made it harder for them to respond to pregnancy emergencies. For black women, who already die from pregnancy-related causes at three times the rate of white women, these bans made the dire situation worse.

Even if we elect Harris as our next president, nearly half of the states will maintain restrictive abortion bans. This problem will not go away.

Today, doctors, lawyers, ethicists, activists, journalists and others are confronting this tragedy. Now is the time for action rather than hand wringing and blame. We must move beyond the narrative and imagine a solution, however imperfect. To quote Angelica Schuyler in Lin-Manuel Miranda’s “Hamilton”: “You want a revolution? I want a revelation!”

The solution requires using the exceptions as they are currently written, supplemented by guidance from court decisions, Attorney General (AG) opinions and other directives. I’m tired of hearing people say it can’t be done. If Dr. Henry Morgentaler could practice civil disobedience in Canada by performing abortions and change national law, today’s medical professionals can see how to interpret the statutory terms such as “serious”, “substantial”, “irreversible” and “reasonable medical judgment”. If American women without clinical training could provide underground abortions in defiance of the law, American doctors can uphold their Hippocratic Oath despite legal language covering a variety of medical scenarios. Laws are written to be implemented through jurisprudence and the guidance of the executive branches. Abortion law is no exception.

In particular, no state has prosecuted a doctor for performing an abortion.

Critics may argue that the absence of prosecutions does not eliminate occupational risk. They point to potential medical license investigations, hospital privilege reviews and civil liability. However, these fears overlook key protections. State medical boards typically defer to doctors’ “reasonable medical judgment” — the same standard used in abortion exceptions. Hospital ethics committees can provide institutional support for emergency care decisions. And medical malpractice insurance generally covers care provided under statutory exceptions. The greater risk of liability may actually come from the delay or refusal of necessary care.

The Emergency medical treatment and Labor Law (EMTALA), a federal law that guarantees stabilizing treatment in hospital emergency departments, defines “emergency medical condition” using terms such as “acute symptoms of sufficient severity” and “serious impairment of bodily function.” Doctors and hospitals have interpreted this 1986 law with court decisions and guidance from the Medicare program; no court has held EMTALA to be too vague or imprecise.

“Reasonable medical judgment” is a phrase commonly used in medical malpractice law.

Since the Dobbs decision, advocacy groups, obstetricians and women who have survived pregnancy-related emergencies have sued states with abortion bans, arguing that the exceptions are unclear. The results have been mixed—not strong enough to await litigation and appeals in all states with abortion bans.

In State of Texas v. Zurawski a Texas Supreme Court decision denied help to two obstetricians and a group of women who survived horrific pregnancy complications. Plaintiffs sought to extend the mother’s lifetime exception. The court ruled that the sole obstetrician with standing had based his trial on hypothetical emergencies, which was fatal to the trial. The pro-choice movement vilified the court as misogynistic. However, this overlooks essential guidance in the judgment. The decision includes very helpful verbiage such as: “(T)he law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law allows a doctor to address the risk of a life-threatening condition before a woman suffers the consequences of that risk … to demonstrate that no reasonable doctor would have concluded that the mother had a life-threatening physical condition that put her at risk of death or substantial impairment of a major bodily function, unless the abortion was performed… The law does not make life-threatening physical assistance a condition of to have already caused damage before a physician can act to preserve the mother’s life or major bodily function” (emphasis in original).

In his concurring opinion, Judge Lehrmann cited an Oklahoma court with approval: “(R)equiring a patient “to be in real and present danger” or to “wait until there is a medical emergency would further endanger life of the pregnant woman and does not serve a compelling state interest” (emphasis added). She also said, “A woman’s right to access life-saving medical care without undue government interference is deeply rooted in our history and tradition, central to our Nation’s orderly scheme of liberty, and enshrined in the explicit language of the fifth and fourteenth. Amendments (of the US Constitution).”

Several other states have provided guidance, including the attorneys general of Oklahoma and Kentucky and the South Dakota Department of Health (DOH). The DOH included a non-exhaustive list of 14 potentially life-threatening medical conditions under the state’s exemption.

Women are dying, let’s wake up to reality. Exceptions to the abortion ban are not unclear as a general matter; doctors are afraid to use them. The Center for Reproductive Rights has even filed EMTALA complaints against two Texas hospitals for failing to timely resolve ectopic pregnancies, which are explicitly exempt from the statutory definition of “abortion” in Texas.

What was unclear about aborting an ectopic pregnancy? Additionally, state guidance—including case law—regarding exceptions provides some reassurance and should be taken seriously by the medical community.

We need doctors to overcome their fears and stop using rhetoric as an excuse not to provide the care these women need. They must apply the standard of care to pregnant women as they would any patient. They should provide the appropriate treatment based on each patient’s particular circumstances. This will involve interpreting statutory terms as they have previously been interpreted in other, less politically charged contexts.

Let’s get off the “can’t” and understand that pregnant women deserve proper care—and the chance to live and have the best outcome—in every state in this country.

Gloria Frank recently co-wrote a six-opinion series in Arizona Copper Courier regarding the SCOTUS EMTALA file/abortion and the new domestic terrorism against pregnant women. Previously, she founded and wrote a monthly publication for healthcare providers, “The Credentialing & Peer Review Legal Insider”, under the auspices of Brownstone Publishers in New York City. An expert in health care and employment law, she has assisted the Medicare and Medicaid programs for over two decades on EMTALA, fraud investigation and prosecution, and other legal topics.