Abortion Bans with Exceptions Still Limit Patient Care Access

May 23, 2023 - An abortion ban with exceptions is still essentially a blanket abortion ban, a new KFF report contended, with vaguely written laws tying providers’ hands in many cases and harming patient care access.

The report looked at whether abortion care truly is accessible for those who fall into the most common abortion ban exception categories. In many cases, it is not.

At the time of publication, 14 states have official abortion bans on the books and a handful of others are working their way through the courts. In most of these states, there are some exceptions to the bans, the most common of which include:

• To prevent the death of the pregnant person
• When there is a risk to the health of the pregnant person
• When the pregnancy is the result of rape or incest
• When there is a lethal fetal anomaly

For example, these exceptions should allow for abortion for a pregnant person experiencing a miscarriage to ensure the miscarriage happens safely and does not harm the pregnant person through the use of abortion-inducing drugs.

But these laws are not written clearly and do not clarify which conditions qualify for abortion ban exceptions.

READ MORE: 6-Week Abortion Bans Could Limit Care Access for 90% of People in Need

Take, for example, the risk to the health of the pregnant person category. The KFF researchers analyzed the text of the abortion bans that grant exceptions for this category and determined that the language for the exceptions is very vague. Most states do not specify which conditions qualify as risking the health of the pregnant person.

“This vague language puts physicians providing care to pregnant people in a difficult situation should their patients need an abortion to treat a condition jeopardizing their health and can leave the determination of whether an abortion can be legally provided to lawyers for the institution in which the clinician practices,” the KFF researchers wrote.

The team added that vague definitions and obscurity about which conditions actually qualify for the exception impact the lethal fetal anomaly exception. Because most states don’t clarify what conditions qualify as a lethal fetal anomaly, it can limit providers’ treatment options.

There are also discrepancies regarding whether a life-threatening illness was caused by the pregnancy (some states do not allow abortion if the illness was not caused by pregnancy) and whether healthcare providers can treat ectopic pregnancy or miscarriages.

While most states allow for the removal of a dead fetus or embryo, clinicians are not always allowed to provide miscarriage care. Miscarriage care can be administered to unviable embryos or fetuses even when some cardiac activity is still being detected as a means to ensure good clinical outcomes for the pregnant person, but many abortion bans do not allow for that, the researchers said.

The researchers added that these provisions prevent healthcare providers from practicing evidence-based medicine. Because clinicians may have to face a jury or the state that may disagree with the clinician’s medical expertise, clinicians are often limited in how they can treat patients.

Of note, abortion bans almost never grant exceptions in the name of the health of the pregnant person as it relates to mental health. However, the researchers said more than 20 percent of pregnancy-related deaths are due to mental health issues. In fact, some states—Georgia, Kentucky, Louisiana, Ohio, Tennessee, Idaho, Florida, Iowa, West Virginia, and Wyoming—specifically exclude mental health diagnoses from abortion ban exceptions.

Abortion ban exceptions for rape and incest are also not always effective, particularly because the legal reporting of rape is complex.

“It is well documented that survivors are often afraid to report sexual violence to the police due to fear of retaliation, shame, reporting an incident to officials who will not respond adequately, not wanting friends or family to know, fear of the justice system, or other personal reasons,” the researchers said.

Sexual assault is seriously underreported, with only 310 of every 1,000 sexual assaults actually being reported to police, the researchers said. Of those reports, only around 50 typically lead to arrest, and only an estimated 28 of those lead to a felony conviction.

“Even for survivors who do report to law enforcement, state abortion bans do not make clear exactly what information needs to be given to a provider to make it clear that the abortion would be legal in that state,” the researchers added.

The researchers said that this legal analysis indicates that abortion ban exceptions are not actually exceptions, barring in the most extreme of cases. Upholding these exceptions is not workable in clinical practice because laws are unclear, and many clinicians—plus hospital legal departments—err on the side of legal safety.

“It is apparent these bans create barriers to accessing abortion care, even in situations where the exceptions they outline should apply,” the researchers said.

“Most importantly, these bans place the health and lives of pregnant people at risk by potentially preventing physicians from providing medically appropriate care,” they concluded. “This inability to provide evidence-based care may additionally make physicians reluctant to practice medicine in restrictive states, amplifying already-existing discrepancies in ability to access obstetric care and adverse maternal and fetal outcomes.”