Background
As this summer has shown us, state regulation of abortion varies widely. Some states have interpreted their state constitutions to find abortion to be a constitutional right, while other states have constitutions that explicitly do not protect abortion rights. State constitutional treatment notwithstanding, there are some states that have protections for abortion rights based on state court precedent, and the majority of states have codified state laws either protecting or restricting abortions. Some of the state laws banning and/or restricting abortion have been termed “trigger bans,” because the majority of them were enacted to take effect upon Supreme Court developments, such as the Court’s ruling in Dobbs.
For example, the Texas Heartbeat Act prohibits, with some exceptions, a physician from performing an abortion if the physician has detected a fetal heartbeat. In relevant part, the Act provides an affirmative defense from liability. However, it contains a provision that “the affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based under Section171.208 occurred before the Supreme Court overruled either of these decisions.” In other states, such as Michigan, laws restricting abortion have existed for decades. The Michigan law from 1931 prohibits all abortions “unless the same shall have been necessary to preserve the life of such woman.” This 1931 law, in the past several months, has been blocked by a preliminary injunction in one lawsuit filed in Oakland County, and further, a Michigan Court of Claims has permanently enjoined the Michigan Attorney General from enforcing the law in another lawsuit. Michigan Proposal 3, Reproductive Freedom For All, is on the ballot in Michigan on November 8, 2022, and would invalidate the 1931 law if passed.
Prior to the Dobbs decision, whether or not to perform an abortion was a medical decision to be made by the medical provider and the patient. Now, the medical provider must also determine whether the procedure may be legally performed in the patient’s specific circumstances. The consequences for physicians who provide or induce an abortion in contravention of one of these laws are very real and can now cause the physician to have their medical license revoked or to face civil liability in some states, or can lead them to be criminally prosecuted. In Michigan, for example, under the blocked law, providing an abortion for any reason other than to save the life of the mother is a felony. It is important to note, however, that no state law attempts to punish the person receiving the abortion.
Abortion Bans
Among the 18 states where abortion is now banned either completely or after 20 weeks, the majority of these states have some sort of exception(s) to the ban. These exceptions, however, are often ignored or are misinterpreted by the media, the general public, and most problematically, by healthcare providers. These laws can be hard to find, and often even harder to understand for those without a legal background. Most physicians are not attorneys. They are neither trained nor equipped to research or interpret laws and regulations. Moreover, even searching for relevant laws and guidance on the internet often reveals news articles and websites from both pro-life and pro-choice groups, but not the actual law itself. And where physicians do manage to locate a relevant law, they face other hurdles. For example, Texas’ Heartbeat Act is 25 pages long. This cumbersome bill could understandably be confusing for a lawyer, much less a physician, to digest and comprehend.
The lack of clear and easily digestible guidance from state legislatures and regulatory authorities has already caused a significant amount of confusion and debate over whether these laws have exceptions, what those exceptions are, how the terms used in those exceptions are defined, and how they will work in practice. As appropriate authorities work through these exceptions, some news outlets have reported that confusion has led to women not receiving treatment for a wide variety of conditions. This type of scenario could exist because of the gray areas surrounding phrases such as “to prevent the serious risk, permanent impairment of a life-sustaining organ of a pregnant woman” or “unborn child who is deemed medically futile,” which come from a state statute in Louisiana. One concern that has been raised is that the ambiguity in these terms may cause healthcare providers to withhold care to pregnant women out of fear that their interpretation of “permanent impairment of a life-sustaining organ” or “medically futile” might be different from the interpretation of a government agency and lead to revocation of their medical licenses and criminal prosecution.
Below is a sampling of some state laws that significantly restrict abortion. This sampling aims to help the reader understand what restrictions these laws impose, what exceptions are provided, and how relevant authorities have interpreted/are interpreting them.
Louisiana Abortion Law
Louisiana has multiple state laws that restrict abortions. The first, LA. Act No. 467, the Human Life Protection Act, was passed in 2006 and prohibits abortions under most circumstances and imposes criminal penalties for violations of the Act. In June 2022, anticipating the decision in Dobbs, the Louisiana legislature passed Louisiana Senate Bill 342, or Act No. 545, a second trigger law to modify the 2006 Human Life Protection Act. Several days after passing the second trigger law, the Louisiana legislature passed a third law that bans “late-term abortion” or abortions performed at or after 15 weeks of gestation. The three laws all carry different penalty provisions, and there has been a lawsuit filed in Louisiana state court that argues the ban on abortion is unconstitutionally vague due to the multiple, conflicting trigger mechanisms. The purpose here is not to analyze the constitutionality of the three laws. Rather, the focus is on the specific wording of the exceptions and how those are being interpreted.
Louisiana Governor John Bel Edwards signed Senate Bill 342 on June 18, 2022, to clarify the previous 2006 Human Life Protection Act, which provided only two exceptions to a complete ban on abortion. These exceptions are: (1) to prevent the death or serious, permanent impairment of a life-sustaining organ of the pregnant woman and (2) when the medical treatment resulted in an unintentional termination. Senate Bill 342, passed in 2022, expanded this list of exceptions to include: (1) when a medical procedure is performed with the intent to save the life or preserve the health of an unborn child, (2) when medical procedures are performed after a pregnant woman miscarries, (3) treatment and removal of an ectopic pregnancy, and (4) to remove an unborn child with an irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth. The 2022 bill additionally defined the life of the unborn child as beginning at implantation rather than at fertilization to allow for emergency contraception.
After the enactment of Senate Bill 342 and the Supreme Court’s decision in Dobbs, various Louisiana regulatory entities published guidance to provide physicians and healthcare facilities direction on when pregnancies may be lawfully terminated and what kinds of administrative procedures the physician should follow in such circumstances. In July of 2022, the Louisiana State Board of Medical Examiners (LSBME) published a statement of position—Guidance Relating to Termination of Pregnancy—which reiterates and clarifies the circumstances in which a pregnancy can be lawfully terminated. These include:
(i) A medical procedure performed with the intention to save the life or preserve the health of an unborn child;
(ii) The removal of a dead unborn child or the inducement or delivery of the uterine contents in case of a positive diagnosis, certified in writing in the woman’s medical record along with the results of an obstetric ultrasound test, that the pregnancy has ended or is in the unavoidable and untreatable process of ending due to spontaneous miscarriage, also known in medical terminology as spontaneous abortion, missed abortion, inevitable abortion, incomplete abortion, or septic abortion;
(iii) The removal of an ectopic pregnancy;
(iv) The use of methotrexate to treat an ectopic pregnancy;
(v) The performance of a medical procedure necessary in good faith medical judgment or reasonable medical judgment to prevent the death or substantial risk of death to the pregnant woman due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman. (However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with reasonable medical practice);
(vi) The removal of an unborn child who is deemed to be medically futile. (The diagnosis shall be a medical judgment certified by two qualified physicians and recorded in the woman’s medical record. The medical procedure shall be performed in a licensed ambulatory surgical center or hospital. Upon the completion of the procedure, the physician shall submit an individual abortion report consistent with R.S. 40:1061.21 that includes appropriate evidence of the certified diagnosis.),
The LSBME further noted that “detailed and meticulous documentation (including the notation of relevant and current applicable versions of CPT and ICDCM codes where indicated) and record keeping as to the medical necessity and justification for termination procedures will be essential, including preservation of all supporting documentation, laboratory results, and consultation records.” Moreover, “the treating physician should clearly and comprehensively discuss with the patient the treatment recommended and the risks and benefits associated with it, as well as any alternatives to the recommended treatment. That discussion, and the patient’s understanding and consent to the treatment, should be fully documented.”
Lastly, the LSBME took the position that even where the law does not specifically require a second opinion, if there is any question or concern in the treating physician’s mind about the treatment plan, that physician should consider consulting a board-certified provider (ideally, a Louisiana-licensed physician) and documenting the second opinion in the chart.
While the LSBME Statement of Position provides a significantly more guidance than that released in some other states restricting abortion, the statement and the language of the original statute problematically did not define when an unborn child is deemed to be “medically futile.” To help clarify conditions in which a pregnancy would be defined as “medically futile,” the Louisiana Department of Health released a declaration of emergency: The List of Conditions that shall be deemed in Unborn Children “Medically Futile.”
This declaration of emergency provides a list of 25 anomalies, disease, disorders, and other conditions that are deemed to be “medically futile” due to the unborn child having a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth, leading to potential imminent peril. The following are five of the conditions where a pregnancy would be legally deemed to be “medically futile” under the law: achondrogenesis, craniorachischisis, hydrops fetalis, sirenomelia, and trisomy 18. The list also includes “a profound and irremediable congenital or chromosomal anomaly existing in the unborn child that is incompatible with sustaining life after birth in reasonable medical judgment as certified by two physicians who are licensed to practice in the state of Louisiana.” This list was published on August 1, 2022, and will remain in effect for 180 days or until the Final Rule is promulgated.
Texas Abortion Law
Similarly to Louisiana, Texas has multiple laws that restrict abortion, including statutes that have been on the books since before Roe, the Trigger Ban law, and Senate Bill 8, titled the Texas Heartbeat Act. Texas law defines “abortion” in Section 245.002(1) of the Health and Safety Code as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives.” Moreover, the term “abortion” in Texas law does not apply when these acts are done “(A) to save the life or preserve the health of an unborn child; (B) remove a dead, unborn, child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy.”
In 2021, the Texas Legislature passed the Human Life Protection Act of 2021 (“Act of 2021”), which prohibits abortion in most circumstances and took effect 30 days after issuance of a United States Supreme Court judgment in a decision overruling Roe v. Wade, as modified by Planned Parenthood v. Casey. The Act of 2021 took effect August 25, 2022, and provides that a person “may not knowingly perform, induce, or attempt an abortion” except under limited circumstances, such as a life-threatening condition to the mother caused by the pregnancy. Specifically, Section 170A.002(b) provides the following exceptions:
(1) the person performing, inducing, or attempting the abortion is a licensed physician;
(2) in the exercise of reasonable medical judgment, the pregnant female on who the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and
(3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create:
(A) a greater risk of the pregnant female’s death; or
(B) a serious risk of substantial impairment of a major bodily function of the pregnant female. …
Section 170A.002(d) additionally provides:
(d) Medical treatment provided to a pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of this section.
Texas additionally enacted Senate Bill 8, the Texas Heartbeat Act, on May 19, 2021. This law provides a legal definition for “fetal heartbeat,” “gestational age,” and “pregnancy,” among other terms. Specifically, Section 171.203 requires a physician to determine whether a fetal heartbeat is present before performing or inducing an abortion. The physician must record: (1) the estimated gestational age of the unborn child; (2) the method used to estimate the gestational age; and (3) the test used for detecting a fetal heartbeat including the date, time, and results of the test.
Subsequently, Section 171.204 provides, “…a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child… or failed to perform a test to detect a fetal heartbeat.” This law contains several exceptions. The first exception provision provides, “[a] physician does not violate this section if the physician performed a test for a fetal heartbeat as required … and did not detect a fetal heartbeat.” Section 171.205, Exception for Medical Emergency; Records further provides:
(a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.
(b) A physician who performs or induces an abortion under circumstances described by Subsection (a) shall make written notations in the pregnant woman’s medical record of:
(1) The physician’s belief that a medical emergency necessitated the abortion; and (2) The medical condition of the pregnant woman that prevented compliance with this subchapter.
(c) A physician performing or inducing an abortion under this section shall maintain in the physician’s practice records a copy of the notations made under Subsection (b).
However, Section 171.206 then clarifies that the Texas Heartbeat Act does not create or recognize a right to abortion before a fetal heartbeat is detected.
The Texas Heartbeat Act goes on to add further documentation requirements to the Texas Health and Safety Code with the addition of Section 171.008. This section requires that the physician who performs or induces an abortion execute a written document that certifies that the abortion is necessary due to a medical emergency and specifies the woman’s medical condition requiring the abortion. The physician shall additionally place the document in the pregnant woman’s medical record and maintain a copy in the physician’s practice records as well. Further, when the abortion was performed or induced to preserve the health of the pregnant woman, the written document must specify the medical condition the abortion is asserted to address and provide the medical rationale for the physician’s conclusion that the abortion was necessary to address the medical condition.
These documentation requirements are in addition to the previous requirements of Section 171.012(a) of the Health and Safety Code that was in effect before the Dobbs decision. Section 171.012(a) describes the voluntary and informed consent requirements that must be followed by a physician who performs or induces an abortion. These requirements enumerate the specific information that must be provided to the pregnant woman before an abortion can be performed, details the information that must be included in an election form the pregnant woman must complete, and requires a sonogram be performed in most cases.
Fully understanding and complying with all of the different laws and their various procedures and documentation requirements could be daunting for a physician not trained or versed in the law. There have, however, been several resources published online to highlight the various laws and their documentation and reporting requirements. The Texas Health and Human Services Commission (HHSC) has developed the following forms, which a physician is required to submit to the HHSC Office of Data, Analytics, and Performance (DAP) when they perform an abortion procedure: Induced Abortion Report Form, Medical Emergency Abortion Incident Reporting Form, Third Trimester Induced Abortion Certification Form, and the Abortion Complication Reporting Form. The Abortion Complication Reporting Form is additionally required to be submitted to DAP by the abortion facility where the abortion was performed. The website also links to Texas laws, rules, and a disclosure and consent form that is required by the Texas Medical Board.
The Texas State Law Library also created a guide that discusses the developments in laws relating to abortion in Texas following the Dobbs decision. This website provides a general guide, links to the various Texas laws and pending Texas legislation, and sections on trigger laws, medical abortions, and criminal and civil penalties.
Georgia Abortion Law
The Living Infants Fairness and Equality (“LIFE”) Act passed in 2019 by the Georgia legislature bans most abortions once a “detectable human heartbeat” is present. This activity can be detected as early as six weeks into a pregnancy. As described below, the law contains exception for rape and incest as long as a police report is filed and allows for later abortions when the woman’s life is at risk or a serious medical condition renders a fetus unviable. Similarly to Louisiana, the LIFE Act has already been challenged in court. The Eleventh Circuit lifted an injunction on the abortion ban in July. Subsequently, a lawsuit was then filed the same month in the Fulton County Superior Court. Testimony began October 24, 2022, to determine if the LIFE Act violates the Georgia Constitution’s right to privacy and liberty.
The LIFE Act defines abortion to mean “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child; provided, however, that any such act shall not be considered an abortion if the act is performed for the purpose of: (A) Removing an unborn child caused by spontaneous abortion; or (B) Removing an ectopic pregnancy.” In the LIFE Act, medical emergency is defined to mean “…a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman,” and medically futile is defined to mean “…in reasonable medical judgment, an unborn child has a profound and irremediable congenital and chromosomal anomaly that is compatible with sustaining life after birth.” Under the LIFE Act at 16-23-141:
(b) No abortion is authorized or shall be performed if an unborn child has been determined in accordance with Code Section 31-9B-2 to have a detectable human heartbeat except when:
(1) A physician determines, in reasonable medical judgment, that a medical emergency exists;
(2) The probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape or incest. As used in this paragraph, the term ‘probable gestational age of the unborn child’ has the meaning provided by Code Section 31-9B-1; or (3) A physician determines, in reasonable medical judgment, that the pregnancy is medically futile.
(c) In conducting an abortion, if the child is capable of sustaining life, medical aid then available shall be rendered. …
(e)(1) No abortion is authorized or shall be performed after the first trimester unless the abortion is performed in a licensed hospital, in a licensed ambulatory surgery center, or in a health facility licensed as an abortion facility by the Department of Community Health.
(2) An abortion shall only be performed by a physician licensed under Article 2 of Chapter 34 of Title 43.
The LIFE Act further holds that it shall be an affirmative defense to prosecution under the article if a licensed physician provides medical treatment to a pregnant woman that results in the accidental or unintentional injury or death of an unborn child, or if an advanced practice registered nurse, registered professional nurse, licensed pharmacist, or licensed physician assistant engaged in the practice of their profession accidentally or unintentionally injures or cause the death of an unborn child. And, in terms of records and reportion, the LIFE Act holds that health records must be made available to the district attorney of the judicial circuit in which the act of abortion occurs or the woman upon whom an abortion is performed resides.
The Georgia Department of Public Health has published additional information for patients and healthcare providers. The website includes a brochure for patients with information on Georgia law, fetal development, the medical risks of abortion, pregnancy and childbirth, and available pregnancy resources. The brochure additionally discusses the 2005 Woman’s Right to Know Act in detail, including the requirements that no abortion shall be performed in the State of Georgia except with the voluntary and informed consent of the female upon whom the abortion is to be performed, except in the case of a medical emergency. Under the Woman’s Right to Know Act, voluntary and informed consent requires that the physician or a qualified agent of the physician providing the abortion inform the patient of: (A) the particular medical risks to the patient, (B) the probable gestational age and presence of a detectable human heartbeat, and (C) the medical risk associated with carrying an unborn child to term. The Woman’s Right to Know Act is also featured on the Georgia Composite Medical Board’s website.
Conclusion
Although they differ in many respects, the three sets of state laws sampled and addressed above are similar in that they all purport to significantly restrict abortions while, at the same time, containing multiple exceptions for the life and well-being of the pregnant woman. Additionally, they either all create exceptions for medically futile and ectopic pregnancies or define abortion to not include those types of pregnancies. Georgia goes farther and allows abortion before a human heartbeat is detectable, and for cases of rape and incest, up to 20 weeks of gestation. Through comparing and contrasting these three sets of laws, readers may learn what types of exceptions can be found in these laws and what documentation and reporting requirements these types of laws impose on physicians and healthcare providers.
All three of these laws make clear that healthcare providers can perform or induce abortions when the performance of a medical procedure is necessary in good faith medical judgment to prevent the death or substantial risk to the pregnant woman. Moving forward, it is crucial for states that restrict abortion to promulgate and provide current and meaningful guidance to physicians and other healthcare providers surrounding the provision of abortions and the application of any exceptions. Likewise, it is important for physicians and other providers involved to have access to competent legal counsel from whom to seek advice and to ensure compliance. The legal community, and healthcare attorneys in particular, are uniquely positioned to assist both state regulatory officials and healthcare providers with the information they need to provide medical services and to ensure full legal/regulatory compliance to mitigate professional risks.