Criminal Penalties for Physicians in State Abortion Bans
Introduction
There have been several high-profile cases regarding exceptions to save the health or the life of pregnant patients in state abortion bans. Major cases that have reached the US Supreme Court (Moyle v. Idaho) and Texas Supreme Court (Zurawski v. Texas) have highlighted the significant challenges for physicians providing pregnancy-related care in states with abortion bans. According to a 2023 KFF survey, 61% of OBGYNs practicing in states where abortion is banned report being concerned about their legal risk when making decisions about patient care and the necessity of abortion care for their patients. Some of the concern about legal risks stems from the “reasonable medical judgment” legal standard used in most states for when an abortion qualifies for an exception. This legal standard does not defer to the treating physician’s judgment but rather allows a court to review circumstances after the abortion has been completed and rely on the testimony of other medical experts to determine whether the treating physician met the standard. Some anti-abortion advocates, legislators, and state attorneys general maintain, however, that it is physicians, not the abortion bans, that are responsible for denial and delays of care, and have implied that providers should face medical malpractice lawsuits for not properly following the exceptions. This brief examines the legal considerations for physicians providing abortion care, including criminal and professional penalties, as well as the potential for medical malpractice lawsuits for delayed care to patients due to bans and prosecution for violation of abortion bans across state lines.
What Criminal Penalties Do Physicians Face for Providing Abortions?
Eleven of the 12 states with abortion bans impose criminal penalties on clinicians who violate their respective bans. These penalties range in severity from a few months in prison to the possibility of a life sentence. All but two of these 11 states — Arkansas and South Dakota — impose minimum sentences for violation of their abortion bans. In Alabama, for example, violation of the total ban constitutes a Class A felony and carries a minimum prison sentence of ten years and a maximum sentence of 99 years. Class A felony is the most serious offense in Alabama, which places abortion in the same criminal category as murder and first-degree domestic violence. Other states place the violation of their abortion bans in the same category as crimes such as aggravated assault (Tennessee), involuntary manslaughter (Indiana), and stalking in violation of a protective order (Kentucky). West Virginia’s law does not include jail time for licensed physicians who violate the abortion ban, but it does include a 3–10-year sentence for other people who violate the law. However, other pre-Dobbs abortion restrictions in the state, such as minor consent requirements, carry criminal penalties for physicians.
In addition, penalties include fines, and in many states, violation of the abortion ban or conviction of a felony are grounds for medical license revocation. If a physician’s license is revoked, even after they have served their sentence, they may not return to practicing medicine. License revocation penalties jeopardize physicians’ livelihoods. In many states, license revocation in a different state is grounds for denying a new medical license or revoking an existing license. This means that if a physician loses their license as a result of providing an abortion in a state where abortion is banned, they may not be able to practice medicine in other parts of the country.
Many states where abortion rights are supported have passed laws to protect clinicians from losing their license, amending their licensing provisions such that if a physician’s license has been revoked in a different state solely due to the provision of abortion care that would have been lawful in the state, the physician may not be denied a license. However, in these circumstances, there is no certainty that a physician would be able to receive a license in another state. And even if physicians had the certainty, continuing to practice medicine would require moving to another state.
No clinician has yet been convicted and jailed for performing an abortion since the Dobbs ruling, but a physician in New York, where abortion is protected, has been charged with a felony crime for mailing medication abortion pills that were given to a minor in Louisiana (discussed below). However, there have been cases indicating that the threat of criminal prosecution has led physicians to delay health- or life-preserving care and prevented them from practicing medicine based on accepted standards of care. A UCSF study identified multiple cases of patients with pregnancy complications being denied abortion care that met clinical standards in states where abortion is banned. Cases included second trimester obstetric complications such as preterm labor, preterm pre-labor rupture of membranes (PPROM), hemorrhage, cervical dilation, and hypertension, as well as ectopic pregnancy, Abortion care was also denied in case of patients with underlying medical conditions that made continuing a pregnancy dangerous, who were experiencing miscarriages, or were carrying a pregnancy with a severe fetal anomaly.
Medical Malpractice
While physicians are faced with criminal and professional penalties if they provide abortion care for health reasons that are later second-guessed in court, if they do not provide this care or delay it, they could potentially be sued for medical malpractice for failing to provide timely and necessary care.
Post-Dobbs, there are no documented cases of medical malpractice lawsuits being filed by pregnant patients who were denied care or did not receive it in a timely manner. However, there have been growing calls from anti-abortion advocates to hold treating physicians liable for delays or denials of miscarriage management care or other care to pregnant people.
In response to calls for exceptions to abortion bans to be widened in scope or be further clarified, anti-abortion lawmakers and attorneys general have argued that it is not policies, but rather the physicians who are at fault in situations where care has been delayed or denied. For instance, in the case Zurawski v. Texas, where women facing dangerous pregnancy complications who had been denied emergency abortion care and two OB-GYNs asked Texas courts to clarify the scope of the medical emergency exceptions in the state’s abortion bans, attorneys for the state of Texas argued that it was not the state’s abortion bans that prevented plaintiffs from receiving timely care. Instead, he argued that physicians committed malpractice and are at fault and suggested that people should sue their physicians, not the state, when they are unable to receive timely abortion care in life-threatening medical emergencies.
Prosecution of Providers Across State Lines
In 2023, some states started passing “shield” laws. These laws aim to protect physicians from prosecution brought by states where abortion is banned as long as the physician is located within the state with the shield law and the care they provided is legal in that same state, regardless of patient location. From July 2023 through June 2024, the Society of Family Planning estimates that 1 in 10 abortions in the U.S. have been medication abortions for which the pills were mailed by providers practicing in states with shield laws.
In December 2024, in the first action testing a shield law, the Texas Attorney General filed a lawsuit against a New York doctor for mailing medication abortion pills into the state. The lawsuit alleges the physician violated Texas law by practicing medicine in the state of Texas without a Texas license and for violating the state’s abortion ban and prohibitions on telehealth for abortion care. On February 13, 2025, after the physician did not respond to the lawsuit or appear at court proceedings, a trial court issued a default judgment for the state, enjoining the physician from prescribing medication abortions to Texas residents and ordering her to pay $100,000 in civil fines. Additionally, in January 2025, a Louisiana grand jury indicted the same New York physician for violating Louisiana’s abortion ban and restrictions. The mother of the minor who received the medication abortion was also indicted. Shield laws in the state of New York seek to protect providers from this kind of litigation, so these cases will likely serve as a test case for shield laws and their ability to protect clinicians providing abortion care via telehealth to patients located in states that ban or restrict abortion. In the Louisiana case, however, the minor’s mother does not have a similar protection from the ban.
Challenges to Exceptions to Abortion Bans
In response to the abortion bans, physicians practicing in Idaho, South Carolina, Tennessee, and Texas have filed lawsuits challenging the vagueness, narrowness, and lack of deference to physician judgment of the medical exceptions in state abortion bans. Among other claims, these challenges contend the vagueness of the exceptions unduly places physicians’ livelihoods and liberty at stake. Additionally, a complaint filed by South Carolina providers argues the state ban’s exceptions violate their First Amendment rights to practice their faith, which includes beliefs that they should use their medical training to honor patients’ requests to end pregnancies that threaten to profoundly harm them or when a fetus is diagnosed with a fatal anomaly, beyond what the exceptions allow.
The Texas Supreme Court has issued rulings in both the challenges in the state – Zurawski v. Texas and Cox v. Texas – ruling in favor of the state and leaving the narrow exceptions untouched. A Tennessee court partly granted a preliminary injunction blocking the state from taking disciplinary action against physicians who provide abortion care to safeguard the health of the pregnant person (unlike Texas, Tennessee has a health exception to their abortion ban). However, because the court lacked authority over criminal laws, it did not block criminal enforcement of the law against physicians. Whether or not these lawsuits will ultimately expand the scope of the exceptions or the deference granted to physician judgment will depend on the rulings of each state’s respective supreme court.
