Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts

Earlier this week, the Texas Supreme Court overturned a lower court order that would have allowed a Texas woman—who was more than 20 weeks pregnant carrying a fetus diagnosed with a fatal condition—to get an abortion in the state. The woman has reportedly travelled out of Texas to obtain an abortion.

A new KFF brief examines the difficulties presented by the vagueness and narrowness of exceptions in state abortion bans, which leave physicians in limbo, uncertain about what they can and cannot do. 

The case in Texas highlights the dilemma in which many doctors and patients find themselves when faced with a pregnancy that they believe qualifies for an exception while fearing criminal prosecution and penalties if they provide an abortion. The brief describes the circumstances underpinning the Texas case, as well as medical exceptions in other states with abortion and gestational bans currently in effect. 

The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their “reasonable medical judgement.” The brief also explores the tensions between “reasonable medical judgment” and “good faith” standards, which leave physicians legally vulnerable and reluctant to certify that a patient qualifies for an abortion ban exception.