The Health Exception

Abstract

The abortion doctrine laid out in Roe v. Wade permits a procedure necessary to preserve the life or the health of the pregnant woman, setting out what has come to be called the “life exception” and the “health exception.” This Article investigates the background and antecedents of the health exception, identifying three periods of formation and change up to the drafting of the Model Penal Code in 1959. It argues that theories of health lie at the heart of legal doctrine, shaping common-law treatment of abortion and persisting in nineteenth- and twentieth-century statutes. This account reveals origins of a health exception more robust and formative than previously understood and illuminates some of the otherwise puzzling formulations, distinctions, and legal categories that still shape abortion doctrine today.

Keywords: abortion, Roe v. Wade, health, life exception, health exception, reproductive rights, equality, legal history, history of medicine, biology, anthropology of knowledge