What overturning Roe v Wade means for life-saving abortion exemptions

New laws that ban abortion in US states include exceptions for when the life of the parent is as risk. However, evidence from Texas suggests that clinicians will wait until the person is “on death’s door” before performing the procedure for fear of legal repercussions

By Tiffany O’Callaghan

New state laws banning abortion in the US include exemptions that allow doctors to end pregnancies “to save the life of the mother”. But in practice the vague nature of these exemptions could endanger patients’ lives and open up medical care providers to lawsuits and criminal charges.

As of 28 June, at least 8 US states officially ban abortion, according to the reproductive health research organisation the Guttmacher Institute. Another 18 states are expected to institute bans in the weeks ahead, in the wake of the US Supreme Court decision repealing Roe v Wade, the 1973 ruling that protected the right to abortion.

So far, all of these bans include exceptions for when the pregnant person’s life is in danger, but the way these exemptions are written doesn’t provide much protection for healthcare providers, says Elizabeth Nash at the Guttmacher Institute. “Abortion opponents see exceptions as loopholes so they design them to be nearly meaningless,” she says.

In states where abortion is banned, life-saving exemptions will often be the only legal basis for someone to obtain a safe abortion. But doctors may still be hesitant to perform the procedures for fear of legal action being taken against them, putting lives at risk.

Such effects were seen in the aftermath of a 2021 law in Texas that effectively banned abortions after around six weeks of pregnancy. After interviews with 25 clinicians, researchers at the University of Texas found that abortions were delayed until they became medical emergencies or in some cases until embryonic cardiac activity was no longer detectable. As one interviewee put it, “People have to be on death’s door to qualify.”

The study also found that there was uncertainty around whether medical professionals could even discuss abortion with their patients.

“The individuals writing these laws are not medical experts,” Jen Villavicencio at the American College of Obstetrics and Gynecology (ACOG) said in a statement. “The language is often incorrect, not clinically meaningful, and therefore confusing to those practicing medicine.”

If a doctor can’t tell what the law is or means, it could have life-threatening consequences, said Villavicencio. “No one facing a medical crisis should have to fear their physician pausing, or even halting, when in the midst of doing what the patient needs in order to resolve or avoid the threat of prosecution,” said Villavicencio.

There are many circumstances, including heart failure or serious infection, in which abortion is an essential, life-saving procedure. Additionally, for certain conditions, risk of serious injury or death is reduced by intervening early – before things have deteriorated and the danger is imminent.

For example, in the case of severe preeclampsia, a blood pressure condition that can be fatal, one of the potential treatments is to end the pregnancy in the third, fourth or fifth month, said Iffath Hoskins of ACOG at a press conference last week. But at those stages, the patient may not yet be considered in grave enough danger that the doctor feels they can legally intervene.

“[These laws] will leave physicians looking over our shoulders, wondering if a patient is in enough of a crisis to permit an exception,” said Hoskins. “It leaves them fearing that the evidence-based care that they are providing is leaving them susceptible to discipline, punishment, lawsuits, loss of licence and criminal penalty.”