Nadia Sawicki

Prof. Maxine Eichner and her co-authors at the University of North Carolina have written a first-of-its kind empirical study and legal analysis that sheds light on the challenges doctors face in interpreting and applying “emergency exceptions” to state abortion bans. In The Inevitable Vagueness of Medical Exceptions to Abortion Bans, they present the findings of in-depth interviews of thirty-five maternal fetal medicine (MFM) physicians in the Southeast United States post-Dobbs, revealing “recurring patterns that create indecision regarding whether statutory exceptions will shield doctors from suit.” They use their empirical findings in support of a robust constitutional argument that state abortion bans with exceptions for medical emergencies are unconstitutionally vague.

Cases like those of Amanda Zurawski in Texas – who experienced preterm premature rupture of membranes (PPROM) at 18 weeks and did not receive an abortion until she developed sepsis three days later and one of her fallopian tubes had closed, compromising her future fertility – and Amber Thurman of Georgia – who died of septic shock because doctors waited 19 hours to remove fetal tissue from a self-managed medication abortion – demonstrate with brutal clarity that abortion ban carveouts for medical emergencies do not effectively protect patients experiencing obstetric emergencies. Troublingly, some legislators and judges in abortion ban states have placed the blame on physicians for these tragedies, arguing that pro-choice doctors are intentionally misinterpreting these laws to make a political point at the expense of patient health and safety. Eichner et al’s robust research demonstrates that this couldn’t be farther from the truth. These statutes, written by legislators with no medical expertise or understanding of the nuances of obstetric emergencies, are so ambiguous that physicians struggle to understand their meaning. And when the penalty for unintentionally violating an abortion ban might be life in prison, it is understandable that these laws have a chilling effect on well-meaning obstetric providers who want to preserve their patients’ health.

The physicians the authors interview highlight several concrete challenges they face in interpreting and applying abortion laws in obstetric emergencies. The overarching challenge is that these statutes are unclear about the degree of medical risk a patient must be facing in order for her condition to qualify as an emergency. According to one physician interviewed, “Nobody knows what the law means until a judge interprets it. So, until you get in front of a judge, it’s just words on paper.”

Uncertainties regarding the level of medical risk required for a condition to rise to the level of an emergency under state law arise from legislatures’ use of language like “necessary to prevent the death” or “save the life” of a pregnant patient. The physicians interviewed pointed out that risk is impossible to predict with certainty in any medical context, can change over time, and varies depending on numerous case-specific factors. The language in abortion statutes, however, not only presumes that it’s possible to predict with certainty the progress of a patient’s condition, but also suggests that the risk needs to approach 100% in order for the abortion to be legally permissible. According to one doctor, “The law was written so poorly, that we couldn’t tell what it meant, like what is dangerous, what counts as lethal. Nothing is 100% lethal, so nothing qualified.” One physician, for example, treated a patient with a cardiac condition that posed a 20-30% risk of heart failure if she continued with the pregnancy. Although medical standards would advise counseling the patient about termination and letting the patient decide, the doctor was unable to do that because (in consultation with hospital counsel) she “ultimately determined that level of risk was insufficient to meet the [state law’s] maternal life exception.” Similar vagueness challenges arise with statutes that permit abortion to prevent “serious health risks,” not just life-threatening emergencies.

Even in cases where doctors feel certain that a patient’s condition rises to the level of risk that would authorize emergency termination under state law, “they were often uncertain about when to perform the abortion in order to comply with statutory requirements.” In cases of infection, for example, a patient can decline into sepsis in a matter of hours, and early intervention is essential to minimizing risk. But physicians, bound by state laws, end up in situations like this: “I watched this woman … she broke her water, she was 17 weeks, she didn’t want to go home … So, we just let her sit on our floor and I just watched, her temperature went up and then her white count went up … And I was like, how long do I have to sit here and watch this before I’m allowed to do something?” The narratives collected by Eichner et al are consistent with quantitative evidence – for example, a 2022 study of patients with pregnancy-related complications at Texas hospitals found that patients waited on average nine days between presenting with complaints and finally receiving medically necessary abortion after the state legislature passed SB8.

Eichner et. al rely on their empirical findings to make a robust argument that because these laws don’t give adequate guidance as to when emergency abortions are lawful, they violate the constitutional prohibition on vagueness. They argue that although Dobbs eliminated the constitutional right to abortion, these laws nevertheless implicate the fundamental right to life and therefore should be subjected to heightened scrutiny.

Some commentators have argued that it is impossible to craft a statute that clearly and effectively outlines the circumstances in which emergency abortions are permissible. Eichner et al agree to some extent, recognizing that abortion “is too complicated to be regulated without risking the lives and health of pregnant persons.” However, they conclude the article by offering a creative proposal for what they refer to as “least-vague abortion exceptions.” Such exceptions would be “clear enough to physicians that they would pass void-for-vagueness standards, significantly reduce chilling, and save some pregnant persons’ lives.” Key elements of their proposed statute include a non-exhaustive list of conditions that satisfy the legal standard, clarification of issues relating to risk and timing, deference to physicians’ good faith medical judgment, and the absence of criminal penalties. The authors’ arguments and proposal are an important starting point for further conversation about the practical implementation of state abortion laws.