Creating an Abortion Safe Harbor Using the Doctrine of Double Effect

Authors

• Evelyn M. Tenenbaum, Albany Law SchoolFollow

Abstract

[INTRODUCTION] In the three years since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (Dobbs) holding that women no longer have a constitutional right to an abortion, many family physicians, obstetricians, and gynecologists have refrained from—or delayed—providing abortion services to pregnant women, even when that restraint created a substantial risk of causing serious injury or death. This reluctance to provide care is labeled physician hesitancy, which is defined as physicians acting in their own professional or personal interest to deny or delay care that would otherwise be provided under the prevailing standard of care.

It would be difficult, if not impossible, to obtain accurate statistics on the extent of physician hesitancy due to hospital and physician liability concerns. However, there is an abundance of evidence, corroborated by physicians’ statements, supporting the conclusion that physician hesitancy is prevalent in states with abortion bans beginning before fetal viability (abortion ban states). Indeed, an Associated Press analysis of federal hospital investigations conducted pursuant to the Emergency Medical Treatment and Labor Act (EMTALA), concluded that “[m]ore than 100 pregnant women in medical distress who sought help from [hospital] emergency rooms [ERs] were turned away or negligently treated [between 2022 and August 2024].” Another telling statistic is that the number of women dying during pregnancy, in labor, or shortly after giving birth increased by approximately fifty-six percent in Texas after the state’s abortion ban went into effect.

Delays in care after Dobbs are due, in large part, to the confusion resulting from the rapid passage of strict abortion bans and to criminalizing abortions prior to viability. Overnight, some common reproductive medical procedures performed in accordance with the standard of care became potentially criminal. Doctors were placed in the untenable position of choosing between terminating dangerous pregnancies and facing potential felony charges if their interpretation of the law was later questioned, or delaying care and risking malpractice actions. This situation prompted Dr. Jack Resneck, then-President of the American Medical Association, to state: I never imagined colleagues would find themselves tracking down hospital attorneys before performing urgent abortions, when minutes count, asking if a thirty percent chance of maternal death or impending renal failure meet the criteria for the state’s [abortion] exemptions, or whether they must wait a little longer until their pregnant patient gets even sicker. The hesitancy described in Dr. Resneck’s statement is further supported by an investigation conducted by ProPublica, an independent, non-profit organization dedicated to investigative journalism. During the investigation, doctors told ProPublica that they had “seen colleagues disregard the standard of care when their patients [were] at risk of infection and wait to see if a miscarriage completes naturally before offering [to perform] a D & C [which would terminate the pregnancy].”

In addition to statements by health care professionals describing physician hesitancy, there are many individual examples of pregnant women who were denied timely emergency medical care due to their physicians’ fears of violating abortion bans implemented since the Dobbs decision. For instance, a lawsuit was commenced in Tennessee by seven women who were allegedly denied medically necessary abortions and accordingly faced dangerous pregnancy complications. The Tennessee lawsuit also included two physicians who alleged that they were prevented from offering patents medically indicated treatment during obstetrical emergencies. In Oklahoma, a woman with a molar pregnancy—which was cancerous—and a fetus that would not survive, was denied treatment “until she became much sicker.” She was told: The best we can tell you to do is sit in the parking lot, and if anything else happens, we will be ready to help you. But we cannot touch you unless you are crashing in front of us or your blood pressure goes so high that you are fixing to have a heart attack. Although she was “at risk of hemorrhage[,] and even death,” she could not obtain timely, appropriate treatment. In another case, a woman in Georgia began experiencing excessive bleeding and pain after taking abortion pills. She was taken to a hospital for a septic abortion, but care was delayed for more than 19 hours, which led to her death. Later, a hospital review committee concluded that her death was preventable and that the delay in performing a dilation and curettage (D & C) had a “‘large’ impact on her [death].” Markedly, these are only a few examples of the significant delays and negative outcomes that women have experienced due to physician hesitancy.

Most alarming is the fact that many health care professionals are still “waiting until patients are on the verge of death to perform abortions.” As the American College of Obstetricians and Gynecologists (ACOG) asserts, “doctors... must be able to intervene when they feel it is medically necessary and provide abortion care before a patient is critically ill.”

Although the ideal solution would address all cases of physician hesitancy that hinder the provision of appropriate medical care to pregnant women, this article focuses on five medical conditions that are generally recognized—including by courts, state legislatures, and state agencies—as medical emergencies warranting a termination of pregnancy (consensus cases). What all of these conditions have in common is that they will cause serious adverse health consequences for pregnant women that can be life-threatening if an abortion is not performed in a timely manner, and their fetuses are unlikely to survive to viability. If these powerful examples of cases warranting termination of a pregnancy, and perhaps others like them, are removed from criminal abortion statutes, then women with some of the most dangerous pregnancy conditions can be treated without hesitancy—or at least with less delay.

This article uses the doctrine of double effect to show why performing abortions for women with these consensus conditions is justifiable from a legal and moral perspective, even in those states that have criminalized abortions prior to viability. This justification is used to argue that the consensus cases should be removed from criminal statutes, and included instead in new civil legislation, thereby avoiding the severe criminal penalties in abortion ban statutes that foster physician hesitancy. The proposed legislation should also use a good faith standard of review, rather than the objective reasonable medical judgment standard that is used in most of the current abortion ban statutes. Using a good faith standard is important because it focuses on the physician’s subjective intent in performing an abortion and lessens hesitancy by giving physicians the discretion to interpret the language in abortion ban statutes in a way that is rational. Employing this standard is particularly significant because the language in current abortion ban statutes is often vague and hard to apply to complex medical emergency situations. Relying on both the doctrine of double effect and the good faith standard to reduce physician hesitancy is not new. In Vacco v. Quill, the United States Supreme Court used the doctrine of double effect to distinguish between the prohibited administration of medication for purposes of physician-assisted suicide and the legal administration of powerful opioids to reduce pain and/or discomfort at the end of life, even if the result is hastening death. After the Vacco decision, states enacted legislation to protect physicians who administered medication for pain relief at the end of life. To reduce physician hesitancy and ensure physicians provided adequate pain relief, the legislation used a good faith standard of review. This article advocates using a similar approach to help ensure timely medical care for pregnant women who are suffering from some of the most dangerous pregnancy conditions and who, in any event, will very likely never have a viable fetus.

The article proceeds as follows: Part II provides the background necessary to understand the reasons for physician hesitancy and sets the stage for some potential solutions. Part III summarizes attempts by courts, state legislatures, and state agencies to curb physician hesitancy, especially with respect to the five medical conditions that are the focus of this article. Part IV explains the doctrine of double effect and how it applies to the five consensus conditions, and Part V contains proposed solutions to help ensure pregnant women with these medical conditions get timely and appropriate care.