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

 Here's a thoughtful brief from the Kaiser Family Foundation on abortion-ban exceptions around the country.

It starts with a quick summary of the Texas Supreme Court's opinion in the Kate Cox case and follows with some observations that somehow escaped the attention of Texas's high court:

• "The case in Texas highlights the impossible situation that many doctors and patients find themselves in when faced with a pregnancy that may qualify for an exception."
• "[I]f doctors are prosecuted for providing abortions under an exception, the courts will nonetheless end up determining whether the abortions qualified for an exception and physicians will still be vulnerable to having their judgment second-guessed by judges and juries. Unable to get a determination from a court ahead of providing care, yet vulnerable to prosecution after providing care, doctors and their patients caught in a 'Catch-22.' In this case, Ms. Cox was reportedly able to leave the state to receive the abortion care her doctor believed she needed, but others may not have the resources to travel out of state to get medically-indicated care."
• "All 20 states with abortion and gestation bans currently in effect contain exceptions to 'prevent the death' or 'preserve the life' of the pregnant person. Like Texas, these exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient."
• "The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their 'reasonable medical judgement.' This standard leaves physicians in a legally vulnerable situation and understandably reluctant to certify a pregnancy as qualifying for a life or health exception. This reluctance stems from the concern of being found guilty of violating the law if the court relies on the testimony of other medical experts that say that the treating physician didn’t meet the standard for “'reasonable medical judgement.'"

The brief includes an interactive that shows the exceptions for life, health, rape/incest, and fatal fetal anomalies in states that have them: