M. Gregg Bloche is the Carmack Waterhouse Professor of Health Law, Policy and Ethics at Georgetown Law and author of “The Hippocratic Myth.” Sarah K. Werner is a J.D. candidate at Georgetown Law.
Opinion Abortion bans are a threat to patients. Doctors can and should resist them.
The states where abortion bans have already taken effect or are likely to in the near future all include exceptions that empower the medical profession to protect pregnant patients. These exceptions vary by state, but they all allow physicians some discretion to conclude that abortion is medically necessary and therefore lawful. They include language authorizing doctors to judge that continuing a pregnancy endangers a patient’s life; some, such as the Texas law, also permit physicians to terminate pregnancy in the event of “serious risk of substantial impairment of a major bodily function.”
The vagueness of these exceptions understandably terrifies doctors, who are targets for prosecution under such laws. But this ambiguity opens the way for the medical profession to defend pregnant patients by establishing guidelines for care that clarify states’ exceptions and interpret them in ways that maximize patient well-being.
The law defers to the medical profession to set what are known as standards of care — rules of clinical practice that physicians expect each other to follow. In cases of potential medical malpractice, judges typically tell jurors to adopt such standards (as set forth by expert witnesses). Likewise, when health insurers deny coverage on the ground that a procedure was not medically necessary, patients can, under the Affordable Care Act, appeal to medical reviewers who apply professional standards in deciding whether to overrule the denial.
In both of these contexts, standards of care strike balances among risks to life and health. For example, standards governing obstetricians’ choices between Caesarean section and vaginal delivery weigh surgical risk (for C-section birth) against the hazards of traditional labor and delivery under varying clinical circumstances. Medical exceptions to the new abortion bans call for similar balancing. Through their professional organizations, physicians should come together to proactively strike the needed balances by developing clinical guidelines for invoking abortion exceptions.
Consider, for example, the Kentucky abortion ban that was triggered by Roe’s demise. Its exception permits abortion “necessary in reasonable medical judgment to [1] prevent the death or substantial risk of death due to a physical condition, or [2] to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.” This language defers to physicians to specify what’s “necessary” — and to say what risks are “substantial.” Ditto for “serious” and “impairment.”
Some states’ exceptions don’t explicitly reference medical “judgment,” but they do use terms, such as “necessary,” that courts employ to signal deference to professional standards. Mississippi allows abortion “where necessary for the preservation of the mother’s life”; several other states’ bans include similar phrasing.
“Necessary” needn’t mean that the patient be close to certain death or other serious harm; care is commonly judged “necessary” in medical practice if it reduces risk even slightly. Professional leaders in obstetrics and gynecology should act quickly to craft clinical guidelines for applying abortion-ban exceptions with this in mind.
They have a science-based starting point: Obstetricians have identified a wide range of clinical circumstances that pose high risk to the lives of pregnant patients. These include diabetes, high blood pressure and obesity, as well as emergencies such as an ectopic pregnancy. The specialty has protocols for managing high-risk pregnancies when patients choose to carry them to term. When patients choose otherwise, these risks should permit pregnancy termination where abortion bans make exceptions for danger to the patient’s life or health.
Clinical criteria for these exceptions can’t be one-size-fits-all. They’ll need to differ in states that allow exceptions for danger to life, “impairment” of an “organ” or “bodily function,” and/or “medical emergency” only; ditto for states that do or don’t permit abortion on grounds of mental health.
Far-right prosecutors might resist such criteria, but the law’s history of deference to medical judgment favors their judicial acceptance.
So, rather than retreating out of fear to risk-aversion that amplifies the new abortion bans’ cruel impact, physicians should stand up to champion their pregnant patients. Doing so will demand courage. Some ideologically motivated judges might push back, permitting prosecutions to go forward against abortion providers who act on these clinical standards. A few providers, at least, will need to risk this on their patients’ behalf. But lawyers are already volunteering to represent doctors willing to champion their patients’ reproductive liberty. And convicting health professionals for saving women from serious harm is unlikely to appeal to courts and jurors — or to voters.
Action by the medical profession along these lines won’t undo the blow the Supreme Court has dealt to women’s freedom and well-being. But the medical profession can serve as a powerful check on antiabortion ideologues’ ability to visit suffering upon Americans in the Dobbs v. Jackson Women’s Health Organization decision’s wake.