Understanding and Navigating Medical Emergency Exceptions in Abortion Bans and Restrictions
The Supreme Court's June 2022 decision to revoke the constitutional right to abortion has had devastating consequences, allowing abortion bans and restrictions to go into effect around the country. State abortion bans and restrictions may have stated or claimed exceptions—for example, that an abortion can be performed in the case of a "medical emergency" or to prevent "death or irreversible damage to a major bodily function." The specific language used in many of these laws to describe exceptions is often confusing and unclear.
Many clinicians on the ground are raising questions about what constitutes a "medical emergency" under their state law's exceptions. In other words, how sick is sick enough to intervene? While clinicians know how to provide evidence-based and lifesaving care for their patients based on years of training and experience, it is impossible for a law to appropriately capture how or whether a "medical emergency" exception applies to a particular clinical situation.
The American College of Obstetricians and Gynecologists (ACOG) recognizes that clinicians regularly practice and make medical decisions in gray areas, and each patient brings unique medical considerations to the table. ACOG has long affirmed that medical knowledge is not static, and laws must not interfere with a patient's ability to be treated by a physician according to the best currently available medical evidence and the physician's professional medical judgment. Fundamentally, there is no one-size-fits-all law that can take every individual, family, or medical condition into account, making legislative interference in the practice of medicine incredibly dangerous.
As doctors, clinicians, and medical institutions navigate the tension between their medical determinations and the legal ambiguity of "medical emergency" exceptions, ACOG offers the following guidance:
- ACOG strongly reaffirms that it is critical for clinicians to be able to use and rely upon their expertise and medical judgment to determine the treatments indicated for each clinical situation and level of care
- ACOG establishes the essential nature of shared decision making in the clinician–patient relationship. Clinicians must be supported in using this approach with patients who experience medical complications and in centering the person and their needs in treatment plans (e.g., whether to proceed with immediate intervention to minimize risk to the pregnant person or instead attempt expectant management).
- ACOG asserts that it is impossible to create an inclusive list of conditions that qualify as "medical emergencies." In addition, it is dangerous to attempt to create a finite list of conditions to guide the practice of clinicians attempting to navigate their state's abortion restrictions. Reasons this type of exhaustive list is neither feasible nor advisable include:
- The practice of medicine is complex and requires individualization—it cannot be distilled down to a one-page document or list that is generalizable for every situation
- No single patient's condition progresses at the same pace
- A patient may experience a combination of medical conditions or symptoms that, together, become life-threatening
- Pregnancy often exacerbates conditions or symptoms that are stable in nonpregnant individuals
- There is no uniform set of signs or symptoms that constitute an "emergency"
- Patients may be lucid and appear to be in stable condition but demonstrate deteriorating health
- Any such list that does not center a clinician's ability to make and act upon appropriate medical judgments in each unique situation will almost certainly result in refusal and denial of care (e.g., when a physician determines a pregnant person's life or health is at risk, but their condition is not included on the list)
- Clinicians must be able to act before a patient acutely decompensates when a medical complication occurs. ACOG asserts that doctors and other health care professionals must be able to intervene when they feel it is medically necessary and provide abortion care before a patient is critically ill. Hospitals and other medical institutions should not require meeting particular criteria (e.g., admission to the ICU or unstable vital signs) before allowing clinicians to proceed with abortion care.
Doctors and other health care professionals must be able to assess the unique patient and clinical situation in front of them and make reasonable, evidence-based decisions about when to intervene without fear of prosecution, loss of license, or fines. ACOG fully supports the continued ability of clinicians to act based on their medical judgement and expertise. ACOG also urges hospitals and other medical institutions to establish policies that protect the ability of clinicians to act based on their medical judgment and expertise and that fulfill the requirements established by the Emergency Medical Treatment and Labor Act.
Please also refer to ACOG's resource to help hospital systems navigate a post-Roe legal landscape for guidance on developing institutional policies and procedures to protect clinicians navigating abortion restrictions, including medical emergency exceptions, in their state.