American Abortion Laws Do Not Require Delaying Treatment for a Mother’s Life-Threatening Condition

On Friday, Slate published an article by Mark Joseph Stern that contains false and deeply misleading claims about American abortion laws’ exceptions that protect the life and physical health of the mother.

“Many of these laws allow termination only in the case of a genuine medical emergency — a term that is not defined, but suggests the patient’s life must be in imminent peril,” Stern writes. In Texas, according to Stern, “there is an exception for a ‘medical emergency’ (which is undefined).”

In fact, no state abortion law in America requires doctors to wait until a woman’s life is in “imminent peril” to provide life-saving care, and it is simply false for Stern to claim that the term “medical emergency” is undefined in Texas abortion law. Here is the American College of Obstetricians and Gynecologists — an organization that opposes laws restricting abortion such as S.B. 8 in Texas — citing the Texas law’s definition of “medical emergency”:

Medical emergency: An exception to the law exists only for a medical emergency. SB 8 amends Chapter 171, Health and Safety Code, which defines medical emergency as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

So there is the legal definition of “medical emergency” in Texas, and as you can see, there is no requirement that the doctor must wait until the “life-threatening physical condition” puts the mother in imminent “danger of death” or “serious risk of substantial impairment of a major bodily function.”

The lack of a requirement of imminence is extremely important because there have been an increasing number of stories out of Texas and other states indicating that some hospitals are acting on the fear that there might be some requirement of imminence; as a result, they are unnecessarily and dangerously delaying care for women in rare but very real circumstances when the continuation of pregnancy endangers the mother’s life.

Everyone in a position to clear up the misinformation and disinformation — from journalists, doctors, and pro-life groups to medical associations, medical boards, and attorneys general — should be doing it.

But Stern does his part to contribute to the misinformation not only with his false claim about the Texas law but with a very misleading description of the abortion law in Missouri as well. Stern writes:

[Missouri’s] ban has no explicit exception for ectopic pregnancies, which are nonviable and deadly if not terminated; Republican Gov. Mike Parsons has declined to call a special session to clarify this ambiguity. Instead, Missouri law permits abortion when there is an “immediate” need to avert death. This language suggests that even if a patient will surely die if her pregnancy is not terminated, she cannot undergo an abortion until the pregnancy is about to kill her.

As Stat’s Olivia Goldhill has reported, at least one patient with an ectopic pregnancy has been denied care under Missouri’s law. When she arrived at the hospital, her fallopian tubes could have burst at any moment, causing internal bleeding and possible death. Yet she still had to wait for the ethics committee to decide whether an abortion was legally permissible. The panel took half a day to decide that the patient was, indeed, in enough danger to terminate.

But as Richard Doerflinger writes at Public Discourse, Missouri law does exclude treatment of ectopic pregnancy — in which an embryo implants outside the womb and can never survive to viability — from the definition of abortion:

Missouri law defines an abortion in terms of an “intent to destroy the life of an embryo or fetus in his or her mother’s womb” (Id., Sec. 188.015 (1), emphasis added). And it defines a “viable pregnancy” in the first trimester as “an intrauterine pregnancy that can potentially result in a liveborn baby” (Id., Sec. 188.015 (12), emphasis added). This excludes an ectopic pregnancy.

Furthermore, Stern omits the fact that the Missouri abortion law’s exception also applies when a doctor determines that a “delay” of treatment “will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” Again, there is no requirement of an imminent threat here — the “delay” of treatment would need only to create a “serious risk” in the mind of a doctor using “reasonable medical judgment” — a standard doctors and hospitals invoke all the time to protect themselves in malpractice cases. As Doerflinger notes:

The reproductive system itself is a major bodily system, and a burst Fallopian tube from an untreated ectopic pregnancy substantially impairs that system; it can also endanger the mother’s life from blood loss. Therefore, treatment for ectopic pregnancies and similarly life-threatening conditions is permitted under Missouri’s law.

In his article, Stern portrays Susan B. Anthony Pro-Life America (SBA), one of the largest pro-life groups in America, as a radical opponent of health exceptions to abortion laws: “The Susan B. Anthony list, a prominent anti-abortion group, has condemned any ‘health exception’ as ‘a dangerous carveout’ that makes “abortion available throughout all of pregnancy without any meaningful restriction.”

But anyone with a passing knowledge of the abortion debate knows that the debate about health exceptions over the past five decades has focused on whether those exceptions include “emotional” and “psychological” health, as Roe’s companion case Doe v. Bolton declared they must, rather than simply be limited to serious physical-health issues. The SBA letter that Stern cites is one written in opposition to the Women’s Health Protection Act, and the lead Senate sponsor of that bill has acknowledged that the post-viability health exception “doesn’t distinguish” between physical and mental health.

Barack Obama himself, while running for president in 2008, said it was appropriate for states to ban late-term abortions, so long as there was a “strict, well-defined exception for the health of the mother. Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term.”

The definition of the “medical emergency” exception in Pennsylvania’s Abortion Control Act — which bans abortion after 24 weeks of pregnancy and has been on the books for decades — is very similar to the definition of “medical emergency” in the Missouri law banning abortion throughout pregnancy. According to the text of Pennsylvania’s late-term-abortion prohibition, the term “medical emergency” means (emphasis added): “That condition which, 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 abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.” If this definition is so vague, then why have we not heard stories over the past three decades about Pennsylvania doctors fearing that they could be prosecuted for inducing delivery to save the mother’s life at 24–28 weeks of pregnancy, a point in development when some premature infants will die (though many survive) after they are delivered?

While Stern tries to portray SBA as jeopardizing life-saving medical care for pregnant women, the pro-life organization has in fact been doing much to make the case that abortion laws in the United States do not require doctors to delay life-saving care. The Charlotte Lozier Institute, the research affiliate of SBA, published an article on July 26 that reviewed pro-life laws in 23 states with pro-life laws currently on the books. The paper found that

none of the laws reviewed prohibit a medical professional from acting as necessary when facing a life-threatening medical emergency; therefore, under these laws medical professionals can exercise reasonable medical judgment and as outlined by the ACOG guidance, are not required to delay necessary care and treatment to a mother.

The paper discussed a variety of conditions in which the life-of-the-mother exception applies, including severe hypertension and periviable rupture of membranes. Ingrid Skop, a Texas-based obstetrician and co-author of the Charlotte Lozier Institute paper, discussed the latter condition in an article I wrote for the latest issue of National Review:

Skop gave the example of a woman whose membranes rupture — her water breaks — before viability, when it is appropriate to offer immediately to deliver the baby. “I say this as a pro-life physician: It is appropriate to deliver at that point. Because we know that likelihood that four days, six days [later], she’s going to be clinically infected,” and that infection can lead to potentially fatal sepsis. She added: “We know that the likelihood this child was going to make it to be born alive, to stay alive, not die in the neonatal period, is super low.” There is no need to wait until day four or day six; the delivery may occur on day one.

Yet there was a troubling American Journal of Obstetrics and Gynecology pre-proof article released at the end of June that reported two major hospitals in Dallas had stopped offering the option of immediate delivery in these circumstances following the enactment of the Texas Heartbeat Act in September 2021. Those hospitals offered only “expectant management” of the mother’s condition, which is associated with greater risks to the mother. (Expectant mothers will sometimes choose to take these risks — rather than deliver immediately — despite the very low odds that the baby will survive.) […]

But it was legal to offer lifesaving treatment before Roe, and Skop says there is no good reason to believe it is illegal to offer such lifesaving treatment after Dobbs: “If [the mother] wants delivery at the time of initial diagnosis, it is the standard of care to do so and is allowed by all state pro-life laws.”

The fact that some hospitals are unnecessarily delaying care in these life-threatening circumstances is disturbing and dangerous. But the fact that some hospitals are providing substandard care is not proof that their behavior is required by law or even based on a reasonable fear of the law. In Texas, for example, treatment for removing a dead child after a miscarriage is explicitly excluded from the definition of abortion. Yet there are reports of hospitals delaying or denying care even in these cases where the law is as explicit as it gets.

Stern writes of one hospital that declined to immediately offer induction after a woman’s water broke early: “It’s no surprise [the patient Elizabeth] Weller’s doctors would not terminate after her water broke far too early: They could still detect fetal cardiac activity, and an abortion might have triggered an avalanche of S.B. 8 suits against them, as well as their nurses and staff.” In the eleven months that S.B. 8 has been the law in Texas, there have not been an avalanche of lawsuits anywhere in Texas. The president of Texas Right to Life is aware of only one doctor who has been sued under S.B. 8, and that doctor deliberately attempted to draw a lawsuit by publishing a Washington Post op-ed suggesting he had performed an abortion banned by S.B. 8. The hypothetical scenario in which doctors are sued for immediately offering to induce delivery in this situation — a standard of care explicitly endorsed by the largest national pro-life group and the largest pro-life group in Texas — is extremely unlikely. In the extremely unlikely event any doctor faced a civil lawsuit, hospitals should pay for any costs involved, but fear of legal costs in a civil lawsuit that’s extremely unlikely to be filed and that doctors are certain to win if it is filed is not a good reason to provide substandard care for women in life-threatening situations.

Given that some risk-averse hospital administrators and attorneys have already made the decision — based on either a poor reading of the law or unreasonable fear of a lawsuit — to change their standards of life-saving care in these rare but real situations, it’s going to take people in a position of authority to get them to reverse course. That means medical associations, medical boards, and attorneys general. Those in positions of authority should all offer clear written guidance — the Charlotte Lozier Institute paper is a good example — as quickly as possible. And journalists should stop misrepresenting what the law actually says.

Update: This article has been emended since its initial publication to add a sentence about the number of lawsuits filed under Texas’s abortion law.