Medically Necessary Abortions After Dobbs: What, if Anything, Has Changed? 

Abstract

        Dobbs v. Jackson Women’s Health Organization allowed a number of laws to go into effect that protect unborn children by eliminating elective abortion while permitting abortion when medically necessary to preserve a mother’s life. Physicians and certain medical groups that oppose these laws have claimed that they are too narrow and do not provide adequate protection for pregnant women experiencing life-threatening complications. They also claim that the laws are unclear and that they fear prosecution for performing abortions that they believe should be permitted and that this will cause them to forego or delay treatment and increase maternal mortality. Finally, they claim that all abortions are medically necessary and must be allowed because abortion is statistically safer than childbirth. But are these claims supportable? 
This article finds that they are not. It examines the basic framework of these abortion laws and identifies the elements necessary to be proven in order to violate them. None of these laws requires that death be imminent before physicians can intervene on behalf of the mother. They clearly allow physicians to perform abortions when complications arise that present a serious risk of death or serious physical harm to the mother and that risk cannot be eliminated without causing the death of the baby. And they leave the decision regarding the medical necessity of an abortion to the treating physician’s reasonable medical judgment—a familiar standard under which physicians already operate with respect to malpractice and professional disciplinary actions. 
To avoid violating these statutes, then, physicians need only continue to treat all of their pregnant patients as they currently treat women with wanted pregnancies—they should avoid injuring either the mother or the baby, whenever possible. If they do this, physicians need not fear prosecution. A thorough examination of the caselaw involving criminal prosecutions and disciplinary proceedings for performing illegal abortions, pre- and post-Roe, supports this conclusion. 
Finally, the article finds that the risk of dying from childbirth or abortion is exceedingly small and that comparisons of such minuscule risks are not meaningful. This is especially true given that the vast majority of abortions are sought for socio-economic, not medical, reasons. Therefore, the suggestion that all abortions are “medically necessary” should be rejected.  
Abortion remains a controversial issue, post-Dobbs, and appears poised to play a major role in upcoming state and federal elections as well as legislative initiatives. This article provides some clarity to allow for better-informed decision-making with respect to these matters. 

Keywords: abortion, medical necessity, abortion data, statutes, vagueness, constitutionality, , elective abortion