The Abortion Double Bind
Medically needed abortion treatment is being delayed and denied by doctors who are understandably wary not to cross the line set by blurry medical exceptions to felony prohibitions against ending a pregnancy. Which raises a legal puzzle: the very abortion procedure that states ban as first-degree homicide is commanded by other parts of our legal system as essential care to save a patient’s life or preserve her health. This "abortion double bind" leaves clinicians trapped between (1) the risk of criminal conviction for ending a pregnancy that is not perilous enough to qualify for the medical exceptions to state prohibitions on abortion, and (2) the risk of civil liability for not ending a pregnancy that’s too dangerous, according to state malpractice law or a federal statute that requires emergency medical treatment.
The chilling effect of ambiguous emergency exemptions doesn’t mean it would be better for states to specify eligible conditions. Detailed lists might reassure tentative physicians seeking to perform an abortion under particular circumstances. But any such preclearance would also operate to suppress the case-by-case discretion that’s critical to provide treatment that’s responsive to context under time-sensitive conditions. This article traces the abortion double bind to the era before Roe v. Wade, and distinguishes key differences and their implications since Roe has been overruled. The article concludes by spelling out concrete actions that concerned professionals and the groups that represent them should take to reduce the risk of being sued or prosecuted for exercising reasonable medical judgement and good-faith legal interpretation.
life-and-health exemptions; malpractice liability; Emergency Medical Treatment and Active Labor Act
American Journal of Public Health
113 American Journal of Public Health 1068 (2023)
Digital USD Citation
Fox, Dov, "The Abortion Double Bind" (2023). Faculty Scholarship. 169.