In States with Abortion Bans, When Does a Medical Emergency Trigger an Exception?

Recent reporting has suggested that abortion bans lead to preventable deaths — and that exceptions to the bans, designed to address serious health complications in pregnancy, are inadequate.

Last September, ProPublica connected the deaths of at least two women, Amber Thurman and Candi Miller, to their and doctors’ confusion about what medical care was legal under Georgia’s six-week ban. A few weeks later, the nonprofit news outlet reported that two Texas women, Josseli Barnica and Nevaeh Crain, also died after doctors delayed miscarriage care. One study found that the number of women who died in Texas while pregnant, during labor, or shortly after giving birth surged by almost 60 percent after the state’s strict abortion ban went into effect. Another suggested infant deaths increased by 13 percent because of the ban.

Although voters in Missouri and Arizona undid total or partial abortion bans in last year’s election, 19 states still prohibit or restrict abortion at an earlier stage of pregnancy than was permitted under Roe v. Wade, according to tracking by The New York Times. And Republican electoral victories across the country raise the prospect of new abortion restrictions at both the federal and state level.

This makes the scope of exemptions to abortion bans all the more important. Lack of clarity over exceptions to abortion bans results in pregnant or miscarrying patients — including those with non-viable or high-risk pregnancies — being turned away from emergency rooms or told that they must “be in more peril” before doctors can help, ProPublica explained.

Against this backdrop, litigation seeking to expand and clarify the scope of exceptions to state abortion-bans has taken on critical importance. A range of state courts have already weighed in on the scope, interpretation, and constitutionality of state medical exceptions, with mixed results.

Decisions Rejecting Challenges to Medical Exceptions

In the last two years, the state high courts of Texas, Idaho, and Iowa have denied challenges to the adequacy of medical exceptions in their states’ abortion bans.

The Texas Supreme Court in State v. Zurawski found the current exceptions permitting abortion when, in a physician’s “reasonable medical judgment,” a pregnant person has a “life-threatening” condition that poses “a risk of death or serious physical impairment,” to be sufficiently clear. A lower court said the state constitution required the law to permit abortion when doctors believe in good faith that continuing a pregnancy is unsafe or that a fetus is unlikely to survive. But the Texas high court said that order improperly amended the statutory exceptions, which it held plainly do not allow abortions to address non-life-threatening pregnancy risks or the fetus’s medical condition. The court did note that the exceptions as written permit a doctor to perform the procedure before the mother is in “imminent peril” — but concluded no further clarification was required to satisfy Texas’s due process and equal protection provisions.

Similarly, the Idaho Supreme Court upheld state bans that permit abortion in a “medical emergency” or when a physician — as a defense to prosecution under the law — affirmatively proves the procedure was necessary in her good-faith judgment to prevent a pregnant person’s death. The majority in Planned Parenthood Northwest v. State rejected the notion that there was a fundamental right to an abortion to preserve “the life and the health of the mother.” Applying a deferential review standard — requiring legislators to have only a “rational basis” for passing a law — it upheld the ban as written. The language was not unconstitutionally vague on its face, the majority said, because there was a set of “core circumstances” to which an ordinary person would understand the exceptions to apply. As in Zurawski, however, the majority did provide some guidance, clarifying that the statutory text permits terminating ectopic and non-viable pregnancies and that a physician’s “good faith” medical judgement “does not require objective certainty, or a particular level of immediacy.”

Finally, the Iowa Supreme Court in Planned Parenthood of the Heartland v. Reynolds rejected a challenge to the state’s six-week abortion ban that included allegations about the limited scope of the law’s “medical emergency” exception. A majority of the court ruled that a deferential review standard applied to the state’s abortion restrictions and upheld the overall statute with no discussion of the adequacy of the exceptions.

Chief Justice Susan Christensen and two other dissenting justices, however, criticized the “medical emergency” exception specifically. Excepting only “life-endangering” but not “severe, life-altering” complications, they said, contradicted lawmakers’ proclaimed interests in protecting maternal health and unborn life.

“Nothing promotes life like a forced hysterectomy preventing a woman from ever becoming pregnant again because she could not terminate a doomed pregnancy under the medical emergency exception,” Christensen remarked.

Decisions Modestly Broadening States’ Statutory Exceptions

In Oklahoma, North Dakota, and Indiana, meanwhile, courts have created important constitutional minimums expanding exceptions to strict abortion bans, relying on historical medical exceptions to find a limited right to abortion in certain circumstances.

In Oklahoma Call for Reproductive Justice v. Drummond, the Oklahoma high court found rooted in the history and tradition of the state’s abortion exceptions an inherent right to terminate a pregnancy when “necessary to preserve the life of the pregnant woman.” That state constitutional right is triggered, the court explained, “if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty or probability” that continuing will endanger the patient’s life “due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.” Applying a heightened review standard known as strict scrutiny, the court said a statutory exception that permits life-saving abortions only “in a medical emergency” violates that right by requiring women to wait until they are “in actual and present danger.”

In subsequent decisions, the Oklahoma high court has blocked additional restrictions based on that right, including board certification, hospital privilege, and ultrasound requirements that the court said placed “unnecessary burdens” on abortions needed to preserve the mother’s life.

Similarly, the North Dakota Supreme Court in Wrigley v. Romanick recognized a woman’s fundamental right to terminate a pregnancy when “necessary to preserve her life or health.” “North Dakota has a long history of permitting women to obtain abortions” in such circumstances, the court wrote. Applying strict scrutiny, it found the state’s ban — which required doctors who performed abortions to face prosecution and then affirmatively prove as a defense that the abortion was necessary and “intended to prevent the death of the pregnant female” — violated that limited right to an abortion.

Finally, the Indiana Supreme Court in Medical Licensing Board v. Planned Parenthood rejected the argument that the state constitution protects a broad right to access abortion, but found an unbroken chain of statutory medical exceptions since the 1850s to support a “right to an abortion that is necessary to protect [a patient’s] life or to protect her from a serious health risk.” Because it concluded there are circumstances under which the state’s current exception can be enforced consistent with that right, the court refused to strike the exception entirely or to determine the “precise contours” of the right. The court left open, however, the possibility of future challenges to the exception as applied to particular patients and circumstances.

Litigation to Watch

A new crop of challenges seeking to expand or clarify exceptions to abortion bans is moving through state courts, with some success before trial judges. Whether those initial rulings survive as cases progress remains to be seen.

Following the North Dakota Supreme Court’s decision in Romanick, lawmakers revised the ban to exempt abortions “deemed necessary based on reasonable medical judgement” and “intended to prevent the [pregnant person’s] death or a serious health risk.” A trial court found the new language unconstitutionally vague in Access Independent Health Services v. Wrigley, explaining that physicians could not know whether their actions would be judged under a subjective or objective standard. Noting that Romanick “stopped short” of holding that the state constitutional right to abortion extends beyond health-preserving circumstances, the trial court recognized a broader fundamental right to abortion at any point pre-viability. Last week, the state supreme court refused to pause the lower court decision pending appeal, finding that the state had not adequately shown at this juncture that it was likely to prevail in overturning that decision on appeal.

In September, a trial court in Georgia struck down the state’s six-week abortion ban, ruling in part that the law’s exception for “medical emergencies” that are physical in nature — not mental-health related — violated the state equal protection clause. “A law that saves a mother from a potentially fatal pregnancy when the risk is purely physical but which fates her to death or serious injury or disability if the risk is ‘mental or emotional’ is patently unconstitutional and violative of the equal protection rights of pregnant women suffering from acute mental health issues,” the court explained in SisterSong v. Georgia. The state supreme court has stayed that decision, however, allowing the six-week ban to go into effect until an appeal is decided.

In Blackmon v. State, a Tennessee trial court granted temporary relief in October to a group of women who say doctors delayed or denied necessary abortion care because of confusion over the state’s “medical necessity” exception. It was “demonstrably unclear,” the three-judge panel said, “which conditions, and the timing of when they present and escalate to life-threatening conditions, constitute medical emergencies.” The court’s order clarified that the exception must cover certain medical conditions raised in the case.

Finally, in Adkins v. State, an Idaho trial court refused to dismiss a challenge to Idaho’s abortion bans under the state constitution’s “inalienable rights” guarantee. The state argued that the challenge was foreclosed by the Idaho Supreme Court’s decision in Planned Parenthood Northwest, which upheld the bans. The trial court disagreed, explaining that the high court held only that the laws were not facially invalid in all applications. By contrast, Adkins concerns the denial of care where a pregnant person has “an emergent medical condition that poses a risk of death or risk to their health (including their fertility)” that could be alleviated by an abortion. The parties are awaiting a decision following a 10-day trial last November. 

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Litigation around exceptions to abortion bans is just one part of a complex and ever-shifting reproductive rights landscape. But the potentially dire consequences of delaying necessary care make clarity of the scope of these exceptions crucial.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.

Suggested Citation: Mary Ziegler, In States with Abortion Bans, When Does a Medical Emergency Trigger an Exception?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 27, 2025), https://statecourtreport.org/our-work/analysis-opinion/states-abortion-bans-when-does-medical-emergency-trigger-exception