Academic journal article Issues in Law & Medicine

Medical Emergency Exceptions in State Abortion Statutes: The Statistical Record

Academic journal article Issues in Law & Medicine

Medical Emergency Exceptions in State Abortion Statutes: The Statistical Record

Article excerpt

In Planned Parenthood v. Casey,1 2 the United States Supreme Court considered the constitutionality of multiple provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989/ These include, inter alia, provisions mandating detailed informed consent requirements and a twenty-four waiting period,3 informed parental consent4 and spousal notice.5 Each provision is subject to an exception which excuses compliance therewith in case of a medical emergency6 A "medical emergency" is defined as

That condition which, on the basis of the physician's good faith clinical judgment, so complicates a medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.7

Because it was "central to the operation of various other requirements," the Court began its analysis of the challenged provisions "with the statute's definition of medical emergency."8 The plaintiffs in Casey argued that the definition was "too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks."9 The Court acknowledged that if this contention were correct, "we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health."10 The district court had found that the statutory definition of medical emergency failed to cover three serious conditions: pre-eclampsia, inevitable abortion and premature ruptured membrane.* 11 However, as the court of appeals observed, "under some circumstances each of these conditions could lead to an illness with substantial and irreversible consequences."12 Although the definition of medical emergency could be interpreted in an unconstitutional manner, the court of appeals construed the phrase "serious risk" to include those circumstances.13 The court stated, "[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman."14 The Supreme Court deferred to the court of appeals' interpretation of state law and concluded that, as construed by the court of appeals, "the medical emergency definition imposes no undue burden on a woman's abortion right."15

In a subsequent case, Ayotte v. Planned Parenthood of Northern New England,16 the Court unanimously held that a State may not limit the circumstances in which compliance with a statute regulating abortion is excused to situations when the life, but not the health, of the patient is at risk.17 The holding in Ayotte basically stands for the proposition that whenever compliance with an abortion regulation may delay the performance of the procedure, it must include exceptions for the life or health of the pregnant woman.18

Following the Supreme Court's decision in Planned Parenthood v. Casey, many States either amended their pre-Casey statutes to include an exception for medical emergencies that conformed to the definition upheld in Casey or enacted new statutes with such an exception.19

These statutes cover a range of abortion regulations, the most common of which mandate detailed informed consent requirements (and, in some States, a waiting period, usually twenty-four hours) for all women seeking an abortion; and, in the case of minors, consent of and/or notice to one or both of their parents or guardian (and, again in some States, a waiting period, typically twenty-four or forty-eight hours). States that have enacted abortion regulations that include a medical emergency exception generally require physicians to record in the patient's medical record the circumstances in which an emergency has excused compliance with a given regulation. …

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