In the U.S. Supreme Court’s recent decision in Moyle v. United States, the Court punted (until after the November 2024 election) on the question whether EMTALA (the Emergency Medical Treatment and Active Labor Act) preempts state abortion bans that fail to include an exception for emergency abortion care necessary to protect a pregnant patient’s health. EMTALA is a federal law mandating that hospitals receiving federal Medicare funds provide stabilizing treatment to protect a patient’s health for any individual arriving at an ER with an emergency medical condition. The ongoing litigation in Idaho, and other well-publicized cases in Texas, have spotlighted the public health crisis caused by post-Dobbs abortion restrictions especially with regard to health exceptions. Moyle leaves in place, at least for now, total bans on abortion without EMTALA’s protections in Texas and other states.
In her draft article, Disabling Abortion Bans, Robyn Powell focuses on the impact of stringent abortion bans on people with disabilities. She examines the adverse health effects of narrowly defined health exceptions, particularly on patients with chronic illnesses, including mental health conditions—serious health concerns that have been largely overlooked in litigation over health exceptions. While media attention has been primarily focused on women with urgent pregnancy complications unable to obtain emergency abortion care, less attention has been paid to individuals with chronic conditions or mental health issues who need abortion care but might not qualify for “emergency” abortion care under EMTALA or narrowly crafted health exceptions.
Since the Dobbs decision ushered in a slew of abortion bans across the country, legal scholars have critiqued the unworkablity of these so-called health exceptions—so-called because health exceptions to abortion bans are rarely applied in reality. Scholars have pointed out that these exceptions do not work in practice because they are designed to be vague and to have a chilling effect on health care providers’ willingness to offer abortion care except in the most dire circumstances. Disabling Abortion Bans is a significant contribution to the ongoing debate about health exceptions to abortion bans. In particular, the article shows how bringing disability rights into view could help shape an incrementalist strategy to challenge abortion bans and build a broader coalition between disability rights and reproductive justice advocates. By centering people with disabilities, Powell also underscores the public health harms of abortion bans beyond emergency care, especially emphasizing their disproportionate impact on individuals with chronic physical and mental health illnesses.
The first section of the article sets the stage by describing the public health crisis generated by the post-Dobbs policy landscape. Powell explains how health exceptions that are deliberately circumscribed and ambiguous have created a chilling effect on physicians’ ability to provide standard medical treatment for pregnancy-related health concerns. With this background, the second section argues that these narrow health exceptions disproportionately harm people with disabilities. Powell describes how systemic health disparities lead to higher maternal mortality and morbidity rates among people with disabilities (data shows an eleven times higher maternal mortality rate). Additionally, the chilling effect of vague health exceptions erodes trust in the physician-patient relationship, particularly harmful to disabled individuals who already distrust the medical establishment due to its history of abuse and discrimination against disabled patients.
One important contribution of the article is how it shines a light on the impact of abortion bans on individuals with chronic conditions, extending the discussion beyond emergency medical situations highlighted in the EMTALA litigation. Powell elucidates how women with common chronic conditions such as autoimmune disorders, heart disease, and kidney disease, face substantially increased pregnancy risks and are especially vulnerable to suffering health harms from abortion bans.
Powell also highlights how chronic mental health issues have been overlooked in discussions about the impact of abortion bans on access to health care. In Moyle, several concurring opinions emphasized the Biden administration’s concession that EMTALA does not apply to abortion in cases of mental health emergencies, further segregating and stigmatizing mental health concerns. Throughout the article, Powell carefully marshals public health evidence showing the prevalence of mental health disabilities during the perinatal period. Pregnancy can exacerbate existing mental health conditions and trigger new mental health problems.
To illustrate this point, in the article’s introduction, Powell discusses a case involving a patient with bipolar disorder and postpartum psychosis facing an unexpected pregnancy. This situation would not constitute an “emergency” under EMTALA, but the patient and her doctor believed terminating the pregnancy was necessary for her health. Yet, most health exceptions in abortion bans exclude mental health indications entirely. Powell argues that this “divergence reveals a troubling inconsistency between growing efforts to achieve mental health parity and the unbalanced approach being taken in abortion policy.” (P. 22.) The lack of mental health exceptions in most abortion bans is particularly troubling given the public health evidence Powell recounts, including that at least one in five pregnant people experience mental health issues during or immediately after pregnancy and that mental health conditions are a leading cause of pregnancy-related deaths in the United States. Powell also provides a historical account of the push to exclude mental health as a ground for health exceptions, originating from proposed Congressional bills seeking to ban adults from assisting adolescents traveling for out-of-state abortion care.
In the final sections, Powell analyzes potential legal and advocacy strategies to chip away at draconian abortion bans. First, Powell proposes that narrowly defined health exceptions should fail even under the rational basis standard set by Dobbs. Although this legal theory may not succeed with the current U.S. Supreme Court, developing arguments using the rational basis test is crucial for making incremental changes and laying the groundwork for a longer-term effort to overturn Dobbs. Powell suggests challenges could also be brought under state constitutions, arguing that health exceptions that are too vague and narrow are irrational.
Second, in addition to potential constitutional challenges under rational basis review, Powell also proposes a range of strategies that are both pragmatically incremental and call for a longer term vision to protect both disability rights and reproductive justice. In the short term, she explores expanding and clarifying health exceptions and protecting providers’ good faith medical judgment through statutory reforms. Powell suggests using the Americans with Disabilities Act (ADA) as a framework for a broader understanding of protecting health in the law. She argues that by “integrating [the ADA’s] expansive understanding of disability into abortion exceptions, pregnant people with disabilities would receive more comprehensive protection.” (P. 65.) Powell acknowledges the limits of proposals to broaden and clarify health exceptions—particularly because overmedicalized framings can perpetuate ableism—as well as the need to move beyond a focus on these exceptional abortion cases. Nevertheless, incremental strategies focusing on health exceptions, disability rights, and medically indicated abortions may be necessary steps to provide limited access to abortion care in the short term.
For the long term, Powell emphasizes building coalitions between the disability rights and reproductive justice movements. These movements have historically been in tension regarding abortion, particularly around prenatal genetic testing and disability-selective abortion bans. Powell’s focus on amplifying the voices of people with disabilities in the abortion law health exception debate is an excellent starting point for building coalitions across these two movements. The article’s arguments on the intersection between disability rights and reproductive justice also build nicely on Powell’s earlier work on Disability Reproductive Justice. Powell convincingly argues that “the disability community is uniquely positioned to lead the way” in challenges to abortion bans, and that by “centering the experiences and needs of people with disabilities, advocates can catalyze incremental changes that pave the way for broader systemic reforms.” (P. 69.)
Disabling Abortion Bans is essential reading for scholars and advocates seeking to understand the full public health impacts of post-Dobbs abortion bans beyond the emergency room context. As litigation and scholarly commentary continue to focus on the problems with health exceptions, Powell makes a persuasive case that centering the disability rights framework is a productive way to advance these challenges.
