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

While all eyes were on Texas and the recent case of Kate Cox, a woman seeking a court order allowing her abortion under an exception to the Texas abortion ban, the conflict could have played out in many states.

Like many physicians in states with abortion bans, Ms. Cox’s physician and the hospital where she practices did not want to risk criminal and professional penalties by providing an abortion without obtaining a court order that it qualified for an exception.

The KFF 2023 National OBGYN survey found that over half of OBGYNs practicing in states where abortion is banned reported being concerned about their legal risk when making decisions about patient care and the necessity for abortions. The risk to doctors is so high that many doctors are hesitant to provide life-saving abortion care unless the threat to life is imminent.

The difficulties presented by the simultaneous vagueness and narrowness of the exceptions in state abortion bans are exacerbated by the lack of deference given to clinicians’ medical judgment to determine when an abortion falls under an exception. This leaves pregnant people who require abortion care in a potentially untenable situation, not just in Texas but any state that has a narrow exception to their abortion ban.