Abstract

Excerpted From: Melissa Morgan, Medical Judgment and Maternal Health Exceptions in the New Era of Abortion Criminalization, 30 Texas Journal on Civil Liberties & Civil Rights 1 (Fall, 2024) (283 Footnotes) (Full Document)

In the new era of abortion criminalization, where many states have banned abortion in nearly all circumstances, good faith medical exceptions represent the only real scenarios where abortion can be legal. It is therefore no surprise that prominent reproductive rights advocates have focused on medical exceptions as a venue for clarifying and expanding the law, hoping to broaden exceptions and adopt a good faith standard to make abortion more accessible in the near term. While others are thinking about how to clarify the laws and recruit various actors to shape their meaning, this Article's contribution is to consider the discretion that the laws give to doctors and what adjusting that discretion could mean.

Granting discretion to doctors to regulate abortion access is a double-edged sword. A reasonable medical judgment standard is designed to restrict doctors' authority, instilling fear that the law will second-guess their medical judgment, thereby chilling the provision of care. By contrast, a good faith standard can give doctors the discretion they need to provide medically necessary abortions, but only if the terms of the exceptions are broad and largely unrestricted. In a world where abortion is criminalized, only a broad good-faith exception like Britain's can meaningfully enable access to care. But even then, abortions outside the medical establishment are punished, access is far from guaranteed, and abortion is not a substantive right that individuals can choose to exercise for themselves.

As this Article has explored, both subjective and objective standards for medical judgment are flawed. Both standards are vulnerable to gender bias; both may lead to inequities and leave access to care spotty and uncertain; and both position doctors as gatekeepers to abortion access at the expense of individual autonomy. No standard for medical judgment can fully address these problems, elucidating the inherent shortcomings in vesting decision-making authority outside the pregnant individual. Why, then, have doctors become the central figures in debates over the new abortion bans?

Doctors have become pawns, useful symbols in both pro- and anti-choice efforts to construct a new political reality. Pro-choice advocates rely on doctors as proof that abortion is normal and necessary, even as many would prefer a world in which people who want abortions don't necessarily need doctors at all. In Britain, the “medicalization of abortion was a mechanism that enabled the practice to be somewhat depoliticized and more palatable to politicians, making room for legislation that enabled access.” But scholars have explored the dangerous consequences of such pro-choice reliance on science and medicine; in 2015, Aziza Ahmed argued that reliance on medical evidence “is no longer a reliable or stable strategy for pro-choice lawyering” given the growth of skewed anti-choice evidence and increasing judicial credence to it. Likewise, Ruth Colker argues that “overmedicalization,” or the “unnecessary reliance on medical categories to determine how people should be treated in society,” simplistically classifies people as sick or impaired instead of pursuing “claims to equality, dignity, and respect.” Abortion is a primary arena for this phenomenon, and it similarly pervades political discussions on transgender and disability rights. By framing abortion as primarily a medical procedure, then, we miss an opportunity to pursue a more substantive vision of abortion as a matter of equality and autonomy. As this Article has explored, this is essentially the message that medical exceptions perpetuate. Yet pro-choice activists may debate whether framing abortion as a medical decision to expand exceptions and increase access today is worth these costs. As Jordan Parsons and Chloe Romanis argue, “Framing matters, but access matters more.”

Meanwhile, anti-choice activists have worked hard to manipulate medicine to their own ends. Anti-choice organizations have long churned out reports that abortion is dangerous, unhealthy, or unnecessary, “tak[ing] advantage of the fact that the general public and most policymakers do not know what constitutes 'good science.”’ Over time, federal abortion jurisprudence “rewrote the boundaries of 'reliable’ and 'objective’ medical evidence by legitimizing conservative medical expertise and evidence ... pro-life and pro-choice medical testimony and expertise could legitimately be treated as equal.” This shift explains why anti-choice advocates prefer a reasonable medical judgment standard: it would enable them to present their fringe evidence as though it is on equal footing with mainstream medical authority. Anti-choice advocates know that medical authority doesn't support them, so they've sought the appearance of legitimacy by creating their own. This anti-choice strategy has conscripted doctors to carry out laws they mostly don't believe in. While abortion bans hope to give the impression that they defer to doctors, it is doctors who the laws will punish and control. It's clear that medical exceptions to abortion bans aren't genuinely based on medical evidence or medical expertise; if they were, abortion wouldn't be banned at all.

Doctors feel left with an untenable choice: deny patients care or break the law. Whether doctors should be expected or encouraged to break the law as a matter of justice is debatable, not least because of the life-altering penalties they could face. But perhaps there is another path, one in which doctors comply with the law but accept that they have a role in defining it, even if that role is not risk-free. This is what Katie Watson suggests is possible:

I encourage physicians, hospital lawyers, and hospital risk managers to follow the advice women are given when we have to walk down a dark alley: Don't act like a victim. Head up. Look around. Then walk with confidence even when you're trembling inside, and the scary people in the shadows are more likely to leave you alone .... Physicians and hospitals have choices, and the moment calls for clinicians and institutions that have not previously assumed risk to deliver abortion care to pick up the baton and lead.

If nothing else, doctors can resist being reduced to political pawns. They can refuse to accede quietly to the anti-choice effort to use them as tools and scapegoats. They can advocate for their own professional autonomy while keeping the needs and desires of their patients front and center.

Medical exceptions represent an opportunity, one that pro-choice advocates have a responsibility to seize. Expanding exceptions to be genuinely usable, as this Article has described, would be a lifesaving improvement to the status quo. In advocating for greater access, we also have an obligation to talk about medical exceptions for what they are: partial and imperfect. It's true that abortion is health care and that doctors need authority to provide it; at the same time, it's true that abortion is much more than that. Abortion is multifaceted and messy, the devastating result of medical necessity for some, and for others the easiest decision in the world. Pro-choice advocates and doctors will need to work together to speak honestly about medical exceptions, their potential as an incremental strategy and their limits when autonomy and equality are our goals. We can hold all these truths at once: that abortion is complicated, that abortion is simple, that doctors sometimes know best, that women know themselves even better, that medical exceptions can help, and that medical exceptions will never be enough. No matter which truth resonates with us most, we need access to abortion on our own terms.

[. . .]

In the new era of abortion criminalization, where many states have banned abortion in nearly all circumstances, good faith medical exceptions represent the only real scenarios where abortion can be legal. It is therefore no surprise that prominent reproductive rights advocates have focused on medical exceptions as a venue for clarifying and expanding the law, hoping to broaden exceptions and adopt a good faith standard to make abortion more accessible in the near term. While others are thinking about how to clarify the laws and recruit various actors to shape their meaning, this Article's contribution is to consider the discretion that the laws give to doctors and what adjusting that discretion could mean.

Granting discretion to doctors to regulate abortion access is a double-edged sword. A reasonable medical judgment standard is designed to restrict doctors' authority, instilling fear that the law will second-guess their medical judgment, thereby chilling the provision of care. By contrast, a good faith standard can give doctors the discretion they need to provide medically necessary abortions, but only if the terms of the exceptions are broad and largely unrestricted. In a world where abortion is criminalized, only a broad good-faith exception like Britain's can meaningfully enable access to care. But even then, abortions outside the medical establishment are punished, access is far from guaranteed, and abortion is not a substantive right that individuals can choose to exercise for themselves.

As this Article has explored, both subjective and objective standards for medical judgment are flawed. Both standards are vulnerable to gender bias; both may lead to inequities and leave access to care spotty and uncertain; and both position doctors as gatekeepers to abortion access at the expense of individual autonomy. No standard for medical judgment can fully address these problems, elucidating the inherent shortcomings in vesting decision-making authority outside the pregnant individual. Why, then, have doctors become the central figures in debates over the new abortion bans?

Doctors have become pawns, useful symbols in both pro- and anti-choice efforts to construct a new political reality. Pro-choice advocates rely on doctors as proof that abortion is normal and necessary, even as many would prefer a world in which people who want abortions don't necessarily need doctors at all. In Britain, the “medicalization of abortion was a mechanism that enabled the practice to be somewhat depoliticized and more palatable to politicians, making room for legislation that enabled access.” But scholars have explored the dangerous consequences of such pro-choice reliance on science and medicine; in 2015, Aziza Ahmed argued that reliance on medical evidence “is no longer a reliable or stable strategy for pro-choice lawyering” given the growth of skewed anti-choice evidence and increasing judicial credence to it. Likewise, Ruth Colker argues that “overmedicalization,” or the “unnecessary reliance on medical categories to determine how people should be treated in society,” simplistically classifies people as sick or impaired instead of pursuing “claims to equality, dignity, and respect.” Abortion is a primary arena for this phenomenon, and it similarly pervades political discussions on transgender and disability rights. By framing abortion as primarily a medical procedure, then, we miss an opportunity to pursue a more substantive vision of abortion as a matter of equality and autonomy. As this Article has explored, this is essentially the message that medical exceptions perpetuate. Yet pro-choice activists may debate whether framing abortion as a medical decision to expand exceptions and increase access today is worth these costs. As Jordan Parsons and Chloe Romanis argue, “Framing matters, but access matters more.”

Meanwhile, anti-choice activists have worked hard to manipulate medicine to their own ends. Anti-choice organizations have long churned out reports that abortion is dangerous, unhealthy, or unnecessary, “tak[ing] advantage of the fact that the general public and most policymakers do not know what constitutes ‘good science.”’ Over time, federal abortion jurisprudence “rewrote the boundaries of ‘reliable’ and ‘objective’ medical evidence by legitimizing conservative medical expertise and evidence ... pro-life and pro-choice medical testimony and expertise could legitimately be treated as equal.” This shift explains why anti-choice advocates prefer a reasonable medical judgment standard: it would enable them to present their fringe evidence as though it is on equal footing with mainstream medical authority. Anti-choice advocates know that medical authority doesn't support them, so they've sought the appearance of legitimacy by creating their own. This anti-choice strategy has conscripted doctors to carry out laws they mostly don't believe in. While abortion bans hope to give the impression that they defer to doctors, it is doctors who the laws will punish and control. It's clear that medical exceptions to abortion bans aren't genuinely based on medical evidence or medical expertise; if they were, abortion wouldn't be banned at all.

Doctors feel left with an untenable choice: deny patients care or break the law. Whether doctors should be expected or encouraged to break the law as a matter of justice is debatable, not least because of the life-altering penalties they could face. But perhaps there is another path, one in which doctors comply with the law but accept that they have a role in defining it, even if that role is not risk-free. This is what Katie Watson suggests is possible:

I encourage physicians, hospital lawyers, and hospital risk managers to follow the advice women are given when we have to walk down a dark alley: Don't act like a victim. Head up. Look around. Then walk with confidence even when you're trembling inside, and the scary people in the shadows are more likely to leave you alone .... Physicians and hospitals have choices, and the moment calls for clinicians and institutions that have not previously assumed risk to deliver abortion care to pick up the baton and lead.

If nothing else, doctors can resist being reduced to political pawns. They can refuse to accede quietly to the anti-choice effort to use them as tools and scapegoats. They can advocate for their own professional autonomy while keeping the needs and desires of their patients front and center.

Medical exceptions represent an opportunity, one that pro-choice advocates have a responsibility to seize. Expanding exceptions to be genuinely usable, as this Article has described, would be a lifesaving improvement to the status quo. In advocating for greater access, we also have an obligation to talk about medical exceptions for what they are: partial and imperfect. It's true that abortion is health care and that doctors need authority to provide it; at the same time, it's true that abortion is much more than that. Abortion is multifaceted and messy, the devastating result of medical necessity for some, and for others the easiest decision in the world. Pro-choice advocates and doctors will need to work together to speak honestly about medical exceptions, their potential as an incremental strategy and their limits when autonomy and equality are our goals. We can hold all these truths at once: that abortion is complicated, that abortion is simple, that doctors sometimes know best, that women know themselves even better, that medical exceptions can help, and that medical exceptions will never be enough. No matter which truth resonates with us most, we need access to abortion on our own terms.

J.D. 2024, Harvard Law School.