Post-Dobbs Psychiatric Exceptions in Abortion-Restricting States

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.

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.

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.