HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, November 24, 2014

Guest Blogger Professor Maya Manian: Health Exceptions in Anti-Abortion Legislation

ManianIn the recent midterm elections, Tennesseevoters approved a ballot measure thatstripped protection for abortion rights from the state constitution. Legislators have wasted no time in proposing new bills to restrict access to abortion. Tennessee state representative Rick Womick, a Republican, has quickly filed an anti-abortion bill that would impose mandatory ultrasounds and waiting periods for women seeking abortion care. Abortion providers already routinely perform an ultrasound as part of pre-procedure abortion care and give the woman the option to view the ultrasound image—a step that rarely changes a woman’s mind about choosing abortion. The crucial difference between general medical practice and the proposed Tennessee legislation (which is similar to mandatory ultrasound laws in other states), is that the law forces the woman to either view the image or listen to a description of the image regardless of her wishes. Abortion foes push mandatory ultrasound legislation to shame and demean women seeking abortion care.

Although there are many reasons to critique anti-abortion ultrasound legislation, I am particularly interested in the so-called health exceptions carved out in these and other anti-abortion laws. The proposed Tennessee law supposedly makes an exception to its forced information and waiting period requirements for medical emergencies, but it defines medical emergency as follows:

"‘Medical emergency’ means any condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function”

Numerous other abortion restrictions have a similarly cramped definition of a medical emergency and thus shockingly scant protection for women’s health. For example, a number of laws banning abortion at twenty weeks post-fertilization provide an exception only if the woman will suffer from a “substantial and irreversible impairment of a major bodily function.” It is no coincidence that the paltry carve outs for women’s health in various anti-abortion laws use identical language. Anti-abortion advocates have long sought to limit protections for women’s health by crafting exceedingly narrow definitions of what constitutes medical need.

These so-called health exceptions in anti-abortion laws define physical health extremely narrowly and provide no exception for mental health concerns.In comparison, the U.S. Supreme Court’s opinion in Doe v. Bolton, the companion decision to Roe v. Wade handed down in 1973, provided much more capacious protection for women’s health:

“[T]he [physician’s] medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman’s age relevant to the well-being of the patient. All these factors may relate to health.”

The remarkably circumscribed definition of medical emergency in recent anti-abortion legislation fails to provide sufficient protection for women’s health. Furthermore, it is not at all clear how physicians should apply these medical emergency exceptions in practice.When is the risk “serious” and “substantial” enough?What bodily functions are sufficiently “major” to warrant an exemption?Medicine, particularly in the context of pregnancy-related care, is not an exact science. The overlay of vague legal rules on complex and time sensitive medical decision-making threatens women’s health.

For example, recently in Ireland, a woman died from a miscarriage at seventeen weeks pregnancy, despite the abortion ban in that country theoretically containing an exception to protect women’s lives.In the United States,research on “conscience” refusals at Catholic hospitals also undermines the claim that health exceptions to abortion restrictions will always be sufficient to preserve women’s health in the case of medically necessary pregnancy terminations.

Women’s health advocates need to be vigilant in pushing back against anti-abortion legislators’ meager definitions of medical emergency and what constitutes health protection for pregnant women. Legislators insert health exceptions (and sometimes rape and incest exceptions) into abortion restrictions to appear more reasonable to the public, but the efficacy of these laws in actually protecting women’s health remains in question.3

-Professor Maya Manian

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