Skip to main content
Full access
Law & Psychiatry
Published Online: 5 June 2024

Post-Dobbs Psychiatric Exceptions in Abortion-Restricting States

Abstract

Mental disorders and suicide are important causes of increased morbidity and mortality rates during pregnancy. Since the U.S. Supreme Court’s 2022 Dobbs decision, many state legislatures have passed stringent abortion bans and restrictions. These laws define exceptions under which abortion may be legally obtained. Suicidality and other psychiatric symptoms have been excluded from such definitions. In this column, the authors examine how legislatures, courts, and professional regulatory bodies in several abortion-restricting states have defined their medical emergency exceptions. The authors argue that psychiatrists should be concerned about the management of psychiatric emergencies during pregnancy as well as emerging legal intrusions into physician-patient decision making.

HIGHLIGHTS

Suicide is an important cause of death among pregnant women, but abortion does not significantly increase suicide risk during pregnancy.
Since the U.S. Supreme Court’s 2022 Dobbs decision, many states have passed stringent bans on abortion, often using language to explicitly exclude mental illness and suicide risk when defining medical exceptions.
Psychiatrists should be concerned about the management of psychiatric emergencies during pregnancy as well as emerging legal intrusions into physician-patient decision making.
Mood and anxiety disorders are among the most prevalent yet underappreciated complications of pregnancy and childbirth. According to recent data, mental health conditions account for 22.7% of pregnancy-related deaths and are the leading cause of perinatal death in the United States, with nearly half of this mortality rate being attributable to suicide (1). Among pregnant patients, serious mental health conditions may require psychiatric risk assessment and interventions, such as psychotropic medications, psychotherapy, intensive outpatient care, or inpatient hospitalization. Historically, upon request from suicidal patients in U.S. states where abortion was banned except in medical emergencies, psychiatrists have also provided documentation of elevated risk for self-harm, supporting patients’ efforts to obtain therapeutic abortions. Such medical interventions have become increasingly politicized since the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization (2). Dobbs overturned the constitutional right to abortion access established in Roe v. Wade (3) in 1973, permitting individual states to tighten restrictions on abortion. Since Dobbs, nearly half of U.S. states have implemented bans or restrictions on abortion services (4).

Psychiatric Exceptions to Abortion Bans

Pre-Roe, abortion-restricting states often permitted abortions under exceptional medical circumstances, such as to prevent the death of the pregnant woman (5). As maternal morbidity rates decreased with advances in medical care and statutory exceptions were expanded, psychiatric certifications—a psychiatrist’s statement that the patient would likely commit suicide unless the abortion procedure were performed—became the leading grounds for abortion access in several states (5). This practice was controversial: patients seeking psychiatric certifications were accused of fabricating their symptoms to terminate unwanted pregnancies, and psychiatrists were accused of duplicitously enabling them (5). Abortion opponents also asserted a postabortion risk to mental health, which has not been substantiated (6).
Although Roe preempted the need for these psychiatric certifications, psychiatrists remained attentive to changing regulations on abortion and their downstream effects on psychiatric practice in the United States. Writing shortly after the U.S. Supreme Court’s Planned Parenthood v. Casey decision in 1992 affirmed the constitutionality of Roe (7), Appelbaum (8) predicted that, should Roe eventually be overturned, psychiatrists would face increased demand to certify patients as medically exempt from abortion restrictions. Recent articles (9, 10) have similarly explored clinical and forensic psychiatrists’ role in the post-Dobbs landscape, predicting that psychiatrists may be tasked with providing more care for patients with unwanted pregnancies in both community and carceral settings, assessing suicide risk for patients seeking medical exceptions to abortion bans, and consulting on abortion-related forensic issues. Meanwhile, the American Psychiatric Association has weighed in with support for the concept of patient self-determination in abortion, asserting in its post-Dobbs position statement on abortion and reproductive rights that the “freedom to act to interrupt pregnancy must be considered a mental health imperative with major social and mental health implications” (11).
As it turns out, however, psychiatric certification may no longer be widely applicable; post-Dobbs legislative restrictions and bans on abortion typically explicitly exclude mental illness and suicide from their definitions of “medical emergency” that would allow abortion access. In these states, clinical and forensic psychiatrists tasked with performing risk assessments on pregnant patients with suicidal ideation may find themselves facing new challenges in balancing professional obligations against legal restrictions on their scope of practice.

Emerging Legislation Eliminates Psychiatric Exceptions

After Dobbs, many states have implemented or reaffirmed laws prohibiting or restricting access to abortion services, threatening both patients seeking abortion and their medical providers with civil or criminal punishments. Currently, abortion is heavily restricted in 22 states, with 14 of these states banning abortion at any gestational stage (12). All of these abortion-restricting states provide for exceptions in the event of a threat to the life of the mother, with 15 states allowing additional exceptions for threats to the mother’s health: eight in the event of rape or incest and seven in the presence of a fatal fetal anomaly. Legislative definitions of “life” and “health” of the pregnant patient, however, have been particularly fraught in the context of suicide and mental disorders.
The difficult task of defining medical situations that meet the specific requirements for abortion access in abortion-restricting states has led to extensive new legislation, executive actions, and litigation. In late 2023, for example, the Texas Supreme Court overturned a lower court’s order allowing an abortion for a Texas woman, Kate Cox, whose fetus was diagnosed as having a fatal condition. Texas law permits abortions when a life-threatening physical condition or one that constitutes a serious risk for substantial impairment of a major bodily function is present. In Ms. Cox’s case, her physician did not say that the patient herself had a qualifying condition, nullifying her claim to the exception. However, in its decision, the court heavily emphasized that it was the responsibility of physicians, and not the courts, to decide which patients may obtain an abortion, writing,
Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception. . . . Only a doctor can exercise “reasonable medical judgment” to decide whether a pregnant woman “has a life-threatening physical condition,” making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion. (13)
“Reasonable medical judgment,” however, may not be as clear‐cut as the Texas Supreme Court makes it out to be, especially for psychiatrists responding to pregnant patients’ acute psychiatric symptoms. According to a Texas law adopted post-Dobbs (14), a physician may not perform an abortion if the risk for death or substantial impairment of a major bodily function “arose from a claim or diagnosis that the female would engage in conduct that might result in the female’s death or in substantial impairment of a major bodily function” (emphasis added). The language of the law avoids terms like “psychiatric,” “psychological,” “mental health,” or “suicide,” but the implication is clear: suicide and other self-directed acts are not qualifying medical conditions under Texas law. This type of language trivializes mental health emergencies and harms people vulnerable to psychiatric disorders.
Georgia’s legislation is even more explicit in excluding mental health emergencies from abortion exceptions. According to House Bill 481, a pre-Dobbs “trigger” ban on abortion after 6 weeks that was upheld by the Georgia Supreme Court (15):
“Medical emergency” means a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman. No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.
In certain states, physicians performing abortions for the purpose of lowering the risk for suicide may face criminal prosecution. Under Tennessee law, physicians may not provide abortions if the “determination is based upon a claim or a diagnosis that the pregnant woman will engage in conduct that would result in her death or the substantial and irreversible impairment of a major bodily function or for any reason relating to the pregnant woman’s mental health” (emphasis added). Any Tennessee physician who does so may face a charge of criminal abortion, a class C felony (16). Similarly to Texas, the Tennessee legislature excludes suicide as a medical emergency justifying abortion and criminalizes abortion care for the purpose of lowering a patient’s suicide risk.
Alabama is a rare example of an abortion-restricting state that explicitly includes a mental health exception in its abortion restrictions (12); however, a recent law conferring personhood on embryos has created additional tensions between the rights of pregnant persons and that of embryos and may challenge the right of suicidal patients to access legal abortions under Alabama’s mental health exception.
Medical boards have been reluctant to provide guidance to physicians confused by ambiguity in the laws governing abortion care. Under pressure, the Texas Medical Board proposed guidance to physicians (17) that has not gone into effect at the time of this writing. The proposed guidance, however, refers back to existing definitions under Texas statute, and the Texas Medical Board remains mute on whether Texas’s barring abortion in cases where “the female would engage in conduct that might result in the female’s death” subsumes suicide or other psychiatric conditions (17). The guidance, therefore, is not as constructive or relevant to psychiatrists as it is to physicians in other specialties attending to emergencies among pregnant patients. Psychiatric concerns, once again, have been swept under the carpet.

Implications for Clinical and Forensic Psychiatry in Post-Dobbs America

The wholesale exclusion of suicide and other mental health emergencies from “medical emergency” abortion bans minimizes the importance of perinatal mental health and harms psychiatric patients. A psychiatric certification for therapeutic abortion for the purpose of lowering suicide risk is not the same as endorsing abortion as birth control (10). Although some individuals seeking care for suicide risk assessments may exaggerate or fabricate symptoms for secondary gain, such cases are also not uncommon in other forensic psychiatric evaluations, such as disability evaluations for workers’ or personal injury compensation. For legislators to regard psychiatric exceptions to abortion laws as a scam perpetrated by pregnant women and their psychiatrists is entirely unwarranted.
In 1992, Appelbaum (8) warned that psychiatrists’ conscientious abstention from aiding pregnant patients seeking therapeutic abortion would result in a landscape in which “persons who honestly can be said to meet criteria for access to abortions may be denied that access in the name of broader social change.” The post-Dobbs landscape has resulted in states preempting access to legal abortion for an entire swathe of already-vulnerable patients in the name of social change. Suicidal ideation poses an inherent threat to the life of the mother, and claims of suicidal ideation must be taken seriously in all medical evaluations, including evaluation of a patient seeking abortion services.
The exclusion of mental health conditions from emergency exceptions to abortion places clinical psychiatrists in an uneasy, and possibly adversarial, position with their patients. This is especially true when alternative psychiatric interventions may involve unwanted medications or involuntary psychiatric hospitalization for imminently suicidal patients. However, the delegitimizing of serious mental health conditions as material threats to health and life is cynical and discriminatory, representing another attempt to control women’s autonomy by ideologues within state legislatures. The issue of abortion related to the mental health of the mother will continue to require input from organized psychiatry, with the goal of advocating for inclusion of mental disorders that threaten the life or health of the mother in medical exceptions to abortion bans.

References

1.
Trost S, Beauregard J, Chandra G, et al: Pregnancy-Related Deaths: Data From Maternal Mortality Review Committees in 36 US States, 2017–2019. Atlanta, US Department of Health and Human Services, Centers for Disease Control and Prevention, 2022. https://www.cdc.gov/reproductivehealth/maternal-mortality/docs/pdf/Pregnancy-Related-Deaths-Data-MMRCs-2017-2019-H.pdf
2.
Dobbs v Jackson Women’s Health Organization, 597 US 215, 2022
3.
Roe v Wade, 410 US 113, 1973
4.
Raman S: State Abortion Bans Bar Exceptions for Suicide, Mental Health. Washington, DC, Roll Call, 2023. https://rollcall.com/2023/12/07/state-abortion-bans-bar-exceptions-for-suicide-mental-health. Accessed Jan 1, 2024
5.
Schwartz RA: Abortion on request: the psychiatric implications. Case West Res L Rev 1972; 23:840–873
6.
Gold LH: Abortion and suicide. Am J Psychiatry 2018; 175:813–814
7.
Planned Parenthood of Southeastern Pennsylvania v Casey: 505 US 833, 1992
8.
Appelbaum PS: Psychiatrists and access to abortion. Hosp Comm Psychiatry 1992; 43:967–968
9.
Hatters Friedman S, Landess J, Ross N, et al: Evolving abortion law and forensic psychiatry. J Am Acad Psychiatry Law 2022; 50:494–501
10.
Landess J, Hatters Friedman S, Kaempf A, et al: Abortion and the psychiatrist: practicing in post-Dobbs America. Psychiatr Times 2023; 40:16–17
11.
Position Statement on Abortion and Women’s Reproductive Healthcare Rights. Washington, DC, American Psychiatric Association, 2023. https://www.psychiatry.org/getattachment/2f2371ac-307e-4889-bdb2-f9bf0a12d401/Position-Abortion-Reproductive-Rights.pdf
12.
Felix M, Sobel L, Salganicoff A: A Review of Exceptions in State Abortion Bans: Implications for the Provision of Abortion Services. San Francisco, KFF, 2023. https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services. Accessed April 19, 2024
13.
Re State of Texas on Petition for Writ of Mandamus. No 23-0994, Austin, Supreme Court of Texas, 2023. https://www.txcourts.gov/media/1457645/230994pc.pdf
14.
Health and Safety Code: Title 2. Health—Subtitle H. Public Health Provisions Chapter 170A. Performance of Abortion. 2022. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.170A.htm. Accessed April 8, 2024
16.
Tennessee Code § 39-15-213: Criminal Abortion—Affirmative Defense. 2021

Information & Authors

Information

Published In

Go to Psychiatric Services
Go to Psychiatric Services
Psychiatric Services
Pages: 710 - 712
PubMed: 38835251

History

Received: 1 May 2024
Accepted: 3 May 2024
Published online: 5 June 2024
Published in print: July 01, 2024

Keywords

  1. Forensic psychiatry
  2. Abortion ban
  3. Pregnancy and mental illness
  4. Suicide

Authors

Details

Yi Wang, M.D. [email protected]
Department of Psychiatry, Penn Medicine (Wang), and Department of Psychiatry, Perelman School of Medicine (Weiss), University of Pennsylvania, Philadelphia.
Kenneth J. Weiss, M.D.
Department of Psychiatry, Penn Medicine (Wang), and Department of Psychiatry, Perelman School of Medicine (Weiss), University of Pennsylvania, Philadelphia.

Notes

Send correspondence to Dr. Wang ([email protected]). Paul S. Appelbaum, M.D., is editor of this column.

Competing Interests

The authors report no financial relationships with commercial interests.

Metrics & Citations

Metrics

Citations

Export Citations

If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. Simply select your manager software from the list below and click Download.

For more information or tips please see 'Downloading to a citation manager' in the Help menu.

Format
Citation style
Style
Copy to clipboard

View Options

View options

PDF/EPUB

View PDF/EPUB

Login options

Already a subscriber? Access your subscription through your login credentials or your institution for full access to this article.

Personal login Institutional Login Open Athens login

Not a subscriber?

Subscribe Now / Learn More

PsychiatryOnline subscription options offer access to the DSM-5-TR® library, books, journals, CME, and patient resources. This all-in-one virtual library provides psychiatrists and mental health professionals with key resources for diagnosis, treatment, research, and professional development.

Need more help? PsychiatryOnline Customer Service may be reached by emailing [email protected] or by calling 800-368-5777 (in the U.S.) or 703-907-7322 (outside the U.S.).

Media

Figures

Other

Tables

Share

Share

Share article link

Share