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February 28, 2024

Navigating the Maze

Abortion Ban Exceptions and Their Impact on Life- and Health-Preserving Care

By Autumn Katz and Kulsoom Ijaz

The U.S. Supreme Court’s decision in Dobbs took away the federal fundamental right to abortion, paving the way for states to ban or severely restrict access. Currently, 14 states are enforcing near-total abortion bans, which has created chaos and confusion for healthcare providers and institutions, alongside potentially devastating and preventable health harms to patients. This article first delves into the ambiguous and narrow scope of medical exceptions within state abortion bans, then spotlights the legal regimes of Idaho and Texas. In both states, patients harmed by the bans have turned to state courts, asking them to clarify the exceptions and affirm healthcare providers’ ability to offer life- and health-preserving abortion care. The article also examines ongoing federal court cases in Idaho and Texas concerning the Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law intended to protect patients in emergency situations, exploring the interplay between the abortion bans and EMTALA’s protections. The decisions in these federal cases further complicate healthcare providers’ understanding of the scope of care they can provide to pregnant patients experiencing obstetrical complications or emergencies. Finally, we offer several suggestions for lawyers supporting healthcare providers and institutions on how to navigate the complex legal landscape and ensure that patients experiencing a medical emergency can access timely and necessary care.

The medical exceptions to state abortion bans vary in scope from state to state. All 14 state bans carve out an exception to preserve a pregnant person’s life or prevent their death, but only some contain language to protect a pregnant person’s health. Arkansas, for example, is enforcing a total ban with no health exception; it is also the state with the highest maternal mortality rate in the nation. And Alabama is the only ban state with a mental health exception; at least six states explicitly proscribe abortions based on a patient’s mental health, including Idaho, which carves out threats of self-harm from the exception to preserve a patient’s life. Idaho’s Maternal Mortality Review Committee found that mental health conditions, including suicide, were the leading cause of pregnancy-related deaths in the state for several consecutive years.

Despite differences across the exceptions, they all include confusing, non-medical terminology and use overly narrow language that restricts a physician’s discretion and fails to fully safeguard patient health. That reality, and the bans’ severe penalties, which may include life imprisonment, massive fines, and loss of licensure, have contributed to a burgeoning public health crisis. In multiple states across the U.S., pregnant patients experiencing obstetrical emergencies are routinely denied abortion care until they are near death. Pregnant patients who receive fatal fetal diagnoses are denied abortion care that would allow them to avoid carrying a non-viable pregnancy to term, including in situations where that diagnosis can adversely affect their own health. Pregnant patients facing serious health complications are being forced to flee their home state and travel hundreds, if not thousands, of miles to receive necessary abortion care, further endangering their health and safety. People who cannot afford to travel are being forced to continue their pregnancies, jeopardizing their health, lives, and future fertility.   

 

The Legal and Public Health Landscape in Idaho and Texas

Last year, dozens of women who were denied life- and health-preserving abortion care due to their state’s abortion bans, alongside physicians practicing in the state, sued Idaho and Texas in state court, arguing they ought to have qualified for abortion care under the bans’ exceptions. The lawsuits ask courts to clarify that physicians are legally permitted to provide life- and health-preserving abortion care to patients without civil and criminal liability, and invoke fundamental rights protected under their respective state constitutions.

While the fate of life- and health-preserving abortion care in Idaho and Texas hangs in the balance in state court, recent federal court decisions in these states have exacerbated the fraught situation on the ground, as physicians cannot rely on EMTALA’s protections to shield them from their states’ abortion bans. EMTALA requires hospitals to provide stabilizing treatment to patients who present to an emergency room, irrespective of their income or background. To address confusion among healthcare providers and the breakdown in patient care in emergent settings, the U.S. Department of Health and Human Services’ (HHS) issued guidance on July 11, 2022, reminding hospitals that EMTALA protects healthcare providers’ clinical judgment in providing stabilizing treatment to pregnant patients, regardless of state abortion bans.

Idaho’s Bans and Current Litigation

There are multiple abortion bans currently in effect in Idaho, each carrying different penalties that range from two to five years in prison, loss of medical licensure for a minimum of six months to permanent revocation for a subsequent offense, and not less than $20,000 in damages for an adverse judgment in a private enforcement civil lawsuit.

Idaho’s abortion bans also contain conflicting medical exceptions, making it impossible for physicians to know how to apply them in their day-to-day practice. For example, Idaho’s privately enforced six-week abortion ban has an exception for medical emergencies, defined as a condition that (1) poses a serious risk of “substantial and irreversible impairment of a major bodily function” or (2) necessitates abortion care to “avert [] death.” But Idaho’s felony total abortion ban contains only a narrow exception to prevent death.

Idaho physicians have struggled to provide appropriate care in the face of these confusing and conflicting medical exceptions. The ongoing confusion and uncertainty around the exceptions to Idaho’s abortion bans has led to an escalating public health crisis within the state. Because physicians fear prosecution under the harsh penalties imposed for violating Idaho’s bans and cannot decipher the opaque and contradictory language of the medical exceptions, some have been forced to curtail their provision of care, while others have simply fled the state, creating an alarming healthcare shortage. Under the current legal regime, nearly half the maternal-fetal-medicine providers have stopped practicing in the state. OBGYNs have also participated in this exodus, as over 50 have stopped practicing since the ban took effect. One labor and delivery unit even shut down, citing the bans as a significant factor in its decision to close. Providers remaining in the state are being affected by staffing shortages.

Pregnant patients in Idaho are suffering devastating harms as a result. Jennifer Adkins was 12 weeks pregnant when her pregnancy was diagnosed with a rare and fatal chromosomal condition. Continuing her pregnancy with this fetal condition was also putting Jennifer at risk of developing a life-threatening condition called mirror syndrome. However, due to Idaho’s strict abortion bans, Jennifer’s doctors were afraid to even connect her with an abortion provider outside the state.

After being forced to flee to a neighboring state to receive critical abortion care, Jennifer brought a case in state court alongside other Idahoans denied life- and health-preserving abortion care under the state’s abortion bans, and healthcare providers, including the Idaho Academy of Family Physicians. The litigation asks the Idaho courts to clarify what circumstances qualify under the exceptions to Idaho’s abortion bans and to recognize that pregnant Idahoans have a right to life- and health-preserving abortion care under the Idaho constitution’s right to enjoy and defend life, secure safety, and pursue happiness.

Texas’ Bans and Current Litigation

There are multiple bans in effect in Texas, carrying different penalties including and ranging from five years to life imprisonment, loss of medical licensure, a minimum of $100,000 in civil penalties, and not less than $10,000 in damages through a private enforcement civil lawsuit.

The bans’ exceptions are both unclear and extremely narrow. For example, Texas has an exception for medical emergencies, but this only applies to people with a life-threatening medical condition that places them at risk of death or “substantial impairment of a major bodily function.” The abortion bans fail to define “major bodily function” but Texas’ labor law defines it to include “functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Without creating broader exceptions to the bans so physicians can safely provide life- and health-preserving abortion care, Texas enacted a new law to create an affirmative defense for physicians and pharmacists in two scenarios, when treating ectopic pregnancy and previable premature rupture of membranes (PPROM).

Against this volatile legal landscape, pregnant Texans can find themselves in crisis. For example, Amanda Zurawski was diagnosed with PPROM, an emergent condition that carries a high-risk of developing a life-threatening infection and sepsis, at about 18 weeks of pregnancy. Sepsis is the immune system’s dysregulated response to an infection, attacking the body’s own tissues and organs. Despite her diagnosis, Amanda was denied abortion care and instructed to monitor herself for signs of infection at home instead. Only after returning to the hospital exhibiting clear signs of sepsis was she deemed sick enough to receive an abortion that complied with Texas’ abortion bans. Being forced to delay life-saving abortion care came at a significant cost to Amanda’s health and future fertility. She spent three days in the ICU battling multiple bouts of sepsis, which caused scar tissue formation in her reproductive organs. While physicians managed to save one of her fallopian tubes, the other remains permanently closed.

Amanda and other patients who were denied life- and health-preserving abortion care due to Texas’ bans, alongside two Texas OBGYNs, filed a lawsuit in state court. The plaintiffs argue that the plain language of the medical exceptions should allow physicians to exercise their professional medical judgment and offer abortion care to patients when the standard of care requires it. They also argue that Texas’ bans violate pregnant Texans’ right to life, liberty, and equality under its state constitution. Although a state court judge granted a temporary injunction to enjoin Texas’ abortion bans as they apply to abortion care in emergent situations, the Texas Supreme Court blocked the injunction from taking effect. A decision on the state’s appeal is forthcoming.

In early December of 2023, just days after the Zurawski case was argued before the Texas Supreme Court, Kate Cox filed a petition in state court to halt Texas’ abortion bans and allow her to obtain an emergency abortion in the state. Kate had received a fatal fetal diagnosis, and her underlying conditions made staying pregnant a threat to her health and future fertility. Kate’s husband also sought relief as a plaintiff, since he was personally at risk of imprisonment for helping his wife obtain an abortion in Texas, along with her physician, who sought to provide care without the threat of civil and criminal penalties. This case was the first of its kind since Roe v. Wade in seeking emergency abortion care on behalf of a pregnant patient.

The judge granted Kate’s request for an emergency temporary restraining order (TRO), however, the Texas Supreme Court halted this ruling the very next day pending its resolution of the state’s petition to overturn the TRO grant. By the time the Texas Supreme Court reversed the lower court, Kate had already obtained an abortion out of state. Although the Texas Supreme Court clarified that responsibility for determining whether a patient falls within the health exception lies with the “medical [] rather than the legal [] profession,” it otherwise failed to provide meaningful guidance to healthcare providers on how to interpret the abortion bans’ exceptions. For example, while the court asserted that a pregnant person need not be “within an inch of death” or experience a bodily impairment that is “fully manifest or practically irreversible” to qualify for an exception, the court also reasoned that the Texas Medical Board “can do more to provide guidance in response to any confusion that currently prevails.” However, the board has yet to “provide best practices” or “identify [any] red lines,” as the court suggested. Kate’s case highlights physicians’ pressing need for clarity around how to interpret medical exceptions.

Federal EMTALA Litigation in Texas and Idaho Compounds Harms

As discussed above, pending EMTALA litigation in federal court further compounds the harms of Idaho’s and Texas’ abortion bans, because physicians in emergency room settings are confused about when they are permitted to provide life- or health-preserving abortion care.

Under the Ninth Circuit Court of Appeal’s en banc decision, Idaho physicians were protected by a preliminary injunction that was previously issued by a district court blocking Idaho’s total abortion ban to the extent it conflicts with EMTALA—as a federal statute, EMTALA preempts state law criminalizing abortion care that is necessary to stabilize a patient. However, the U.S. Supreme Court lifted the injunction on January 5, 2024, and will hear argument addressing the preemption question this April. Shortly after the HHS EMTALA guidance was issued, Texas filed a lawsuit arguing that the guidance would force Texas doctors and hospitals to provide abortions. A federal district court enjoined the EMTALA guidance to the extent that it applies to Texas’ abortion bans; however, it is unclear how this ruling impacts hospital-based care given that the medical emergency exception to Texas’ abortion bans seemingly encompasses the stabilizing care EMTALA otherwise requires. The Fifth Circuit Court of Appeals upheld the district court’s decision, reasoning that EMTALA does not directly conflict with Texas law and is silent on whether abortion can be considered stabilizing treatment.

While the Fifth Circuit’s order is only applicable to Texas, and HHS has not appealed it to the U.S. Supreme Court, the U.S. Supreme Court may look to the Fifth Circuit’s reasoning when reviewing the relationship between EMTALA and Idaho’s total abortion ban. If the U.S. Supreme Court concludes that EMTALA does not preempt Idaho’s and other states’ abortion bans, it will mean that pregnant people who need emergency abortion care will be singled out as a class of patients without protections under EMTALA.

Recommendations to Guide Healthcare Providers and Institutions

The fraught and complex legal landscape described above impedes healthcare providers’ and institutions’ ability to deliver essential patient care. Vague and confusing legislation that carries the threat of harsh penalties, including jail time and loss of licensure, has led to providers being unable to practice according to the standard of care. For lawyers advising healthcare providers or institutions in these settings, we offer three recommendations: 1) Familiarize yourself with relevant abortion laws in your state; 2) Engage healthcare providers and hospital leadership to understand the issues they are facing and address their questions and concerns; and 3) Provide suggestions for institutional policies and procedures that will empower healthcare providers to practice evidence-based medicine in line with the standard of care. 

Familiarize yourself with the legal landscape

In states with abortion bans or severe restrictions, healthcare providers must make critical decisions about patient care in emergent circumstances every day. It is essential for lawyers advising healthcare providers and institutions to understand their state’s legal landscape, especially the contours of the state’s medical exceptions. Having a set of clear guidelines and policies that address emergent scenarios, like PPROM, excessive bleeding, and preeclampsia, is vital to ensuring patients and healthcare providers are protected while complying with state abortion laws. State-specific guidance about the legal landscape in 12  states with abortion bans/restrictions was recently published by the Abortion Defense Network; these state-specific fact sheets can help lawyers quickly learn the lay of the land.

Engage with healthcare providers to understand their questions and concerns

Despite years of training in how to provide patients with compassionate, evidence-based care, healthcare providers in restrictive environments must contend with their ethical duties to patients, vague and confusing medical exceptions, and enormous legal risk. They question if, and when, they can provide care in a wide range of circumstances, including miscarriages, obstetrical emergencies, and complications that create elevated risks during pregnancy. Many providers are unsure if, when, or how to document a particular diagnosis or treatment in a patient’s chart, fearing that documenting certain information could expose them to liability. In ban states, some healthcare providers even hesitate to provide referrals for out-of-state abortion care. Despite their expertise in delivering safe and competent care, healthcare providers in ban states fear state prosecution for providing care according to their professional medical judgment. Thus, engaging in conversations about the myriad emergent scenarios healthcare providers encounter is vital and will help lawyers advising healthcare providers to support and empower their delivery of timely and medically necessary care. 

Establish policies to protect providers practicing within established guidelines

Finally, lawyers advising healthcare providers and institutions can work together with those providers and institutions to establish clear, consistent guidelines that allow them to exercise their good-faith medical judgment about when a particular patient may need treatment or care. Professional medical guidelines emphasize the importance of allowing physicians to rely upon their expertise and professional judgment in determining the appropriate care and treatment in a given clinical situation. In addition, lawyers should strive to maximize protections for healthcare providers who deliver care that is consistent with their institutional guidelines, including by securing malpractice coverage for civil liability and indemnification in the event a healthcare provider is prosecuted or investigated for providing care consistent with established policies and guidelines. 

Conclusion

To date, the confusing and narrow exceptions to state abortion bans have proven unworkable in practice, resulting in denials of care to patients like Jennifer Adkins, Amanda Zurawski, and Kate Cox. A lack of clarity on the scope of exceptions to state abortion bans, coupled with the looming threat of severe penalties, is preventing healthcare providers from providing timely and appropriate care in emergent settings, unleashing devastating and preventable health consequences. Within this murky legal terrain, lawyers can play a crucial role in guiding and empowering healthcare providers and institutions to deliver services that align with the standard of care. Efforts to mitigate the harmful effects of abortion bans will ensure that more pregnant people have access to the comprehensive and compassionate healthcare they need and deserve. 

Autumn Katz

Center for Reproductive Rights, New York, NY

Autumn Katz is the associate director of U.S. Litigation at the Center for Reproductive Rights. She has litigated cases in state and federal courts across the U.S. seeking to protect access to reproductive healthcare, including abortion and contraception. Prior to joining the Center in 2012, Ms. Katz was a litigator at Dewey & LeBoeuf LLP, where she devoted a significant amount of time to pro bono matters involving civil and constitutional rights. She can be reached at [email protected]

Kulsoom Ijaz

Center for Reproductive Rights, New York, NY

Kulsoom Ijaz, a staff attorney at the Center for Reproductive Rights, litigates reproductive rights cases across the nation, including challenges to abortion bans in Idaho and Louisiana. Formerly a senior staff attorney at Legal Services of NYC, Ms. Ijaz fought for tenants’ rights to safe, affordable, and fair housing in both state and federal courts. She is also the founding advocacy chair of the American Muslim Bar Association, where she develops campaigns and strategies surrounding pressing human rights issues. She can be reached at [email protected].

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