UC Irvine Law Review

In the aftermath of the 2022 U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization removing federal constitutional protection for abortion, twenty states currently significantly restrict access to abortion. These state laws all include exceptions for the life of the pregnant person; most also exempt significant impairments to the pregnant patient’s health. Despite these exceptions, repeated accounts in the press and in court cases have shown pregnant patients in significant medical need being denied abortion care, resulting in serious injuries and, in some cases, death. The reasons for this denial of care, though, are disputed. Physicians have contended that the language of medical exceptions is so unclear that they are difficult to apply. Meanwhile, legislators who favor strict restrictions have blamed attending doctors for failing to apply what they say are clear exceptions, either because of negligence or because physicians are seeking to discredit restrictive regulations.

This Article explores the controversy over application of medical exceptions through analyzing the results of a new empirical study involving in-depth, qualitative interviews with maternal fetal medicine physicians providing patient-facing care post Dobbs. Physicians’ responses in these interviews, we demonstrate, pinpoint recurring gaps between the ways that physicians make abortion decisions in standard medical practice and the language of medical exceptions. These create uncertainty regarding whether, among other issues, the level of risk to life or health experienced by the patient rises to the threshold required by state law, and whether and when the patient’s medical risk meets the exception’s requirements regarding timing of the abortion. The disjuncture between medical practice and the statutory language physicians are expected to apply, we show, creates indecision regarding whether medical exceptions will shield doctors from liability and severe penalties in most cases involving medical risk.

We then argue that physicians’ uncertainties in applying medical exceptions implicate the constitutional “void-for-vagueness” doctrine. Under that doctrine, laws that do not allow those persons subject to them to determine whether their conduct is legal cannot be enforced. We contend that physicians’ inability to determine whether and when existing medical exceptions apply in the cases presented to them requires that courts strike down abortion restrictions. Finally, although we believe that pregnancy is too complicated to allow abortion to be regulated in a manner that adequately protects the lives and health of pregnant patients in all cases, we offer an example of a “least-vague” medical exception that would provide better guidance to physicians about when abortions for medical reasons are lawful. Such an exception, we believe, would clear the void-for-vagueness bar.