In June 2022, the U.S. Supreme Court revoked the constitutional right to abortion that had been established by Roe v. Wade and subsequent decisions. The ruling in Dobbs v. Jackson Women’s Health Organization allowed states to regain authority over reproductive rights. Sweeping bans have followed in many states. These bans generally contain exceptions for medical emergencies, but the scope of the exceptions is not always clear.
Last week, the Center for Reproductive Rights took legal action involving the abortion bans in three states. These cases echoed a lawsuit that the Center previously had pursued in Texas. That lawsuit initially resulted in an injunction blocking the Texas abortion bans as applied to dangerous pregnancy complications. The judge emphasized the authority of doctors to use their medical judgment in deciding when an emergency warrants an abortion. However, the state appealed that decision, so the case has gone to the Texas Supreme Court without the injunction taking effect.
The more recent cases involve abortion laws in Idaho, Tennessee, and Oklahoma. The medical exception in the Idaho law is very narrow, allowing abortion only to prevent the death of the pregnant woman. The Center for Reproductive Rights filed a lawsuit in state court to expand the exception to allow abortion when needed to preserve the health of the pregnant woman, as well as in situations involving lethal fetal diagnoses. It raises several claims based on the Idaho Constitution, including equal protection and due process provisions.
The Tennessee lawsuit also raises arguments based on the state constitution. The medical exception in the Tennessee law, while somewhat less restrictive than the Idaho exception, permits abortion only when necessary to prevent death or a “serious risk of substantial and irreversible impairment of a major bodily function.” The Center for Reproductive Rights seeks clarification on what this vague language means, while also urging the court to extend the exception to situations involving lethal fetal diagnoses.
The Oklahoma case has some key differences from the Idaho and Tennessee cases. Here, the Center for Reproductive Rights filed a complaint with the U.S. Department of Health and Human Services, alleging a violation of the Emergency Medical Treatment and Active Labor Act. This law requires hospital emergency departments to screen patients to assess whether they have an emergency medical condition. If they do, they must be stabilized and treated within the capabilities of the facility. HHS guidance provides that hospitals must comply with EMTALA even if their state has a strict abortion ban. This case involved a patient with a life-threatening pregnancy complication. Two Oklahoma hospitals refused to provide her with an abortion, which allegedly would have been “stabilizing treatment” under the circumstances. Penalties for EMTALA violations may include fines and the loss of federal funding.
The aftermath of the Dobbs decision has caused uncertainty for patients and doctors in many areas of the U.S. Actions like these may help clarify the scope of the laws recently passed in this field, while potentially expanding patient rights.
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