I. Introduction
Extensive research has demonstrated that patients experiencing pregnancy complications and high-risk pregnancies in states with restrictive abortion laws are often denied appropriate emergency medical care, leading to dramatic increases in morbidity and mortality.Footnote 1 Although all states that ban or limit access to abortion include some protections for patients who are facing life-threatening emergencies,Footnote 2 these laws do not guarantee that patients will receive timely evidence-based care.Footnote 3 For patients experiencing miscarriage, premature rupture of membranes, placental abruption, severe hypertensive disorders, ectopic pregnancy, and other dangerous medical conditions, a treating provider’s decision about whether their condition qualifies as an emergency under state law can mean the difference between life and death.Footnote 4
While physicians are trained to diagnose patients and make medical treatment decisions, interpretation of state or federal legislation is not within the scope of their professional competency.Footnote 5 Indeed, in no other context but emergency obstetric care are doctors asked to make such nuanced legal judgments. Even more troublingly, evidence suggests that hospitals rarely provide physicians with robust institutional or legal guidance regarding compliance with vaguely worded state abortion laws, nor do they guarantee legal defense for physicians who are prosecuted for their good faith medical judgments.Footnote 6 Because the penalties for inadvertently violating abortion bans are so severe, physicians who treat obstetric emergencies find themselves torn between delivering evidence-based medicine and protecting themselves from criminal prosecution and loss of their medical licenses.Footnote 7
This situation — yet another example of pervasive abortion exceptionalism in U.S. lawFootnote 8 — is unsustainable and unjust for both patients and physicians. State legislatures have placed doctors in the impossible position of making on-the-spot legal determinations, but now disclaim responsibility for the consequences of ill-considered legislation that puts patients at serious risk.Footnote 9 While it might be possible for policymakers who sincerely oppose abortion to draft exceptions with robust and clearly defined protections for maternal health and safety, no such changes seem to be on the horizon.Footnote 10
Since the legal status quo seems unlikely to shift,Footnote 11 many commentators are exploring alternative avenues for navigating the tension between criminal prohibitions on abortion and patients’ need for evidence-based emergency medical care.Footnote 12 Advocates for reproductive rights and reproductive justice have argued that where legislators refuse to act, perhaps judges, professional associations, insurers, and hospitals can step in to provide physicians and patients with the support they desperately need.Footnote 13
I share in the belief that physicians who treat pregnant patients need robust support from advocates in all realms to bolster their ability to act in accordance with professional norms in face of unrelenting legal threats. This article contributes to that objective by focusing on the critical role that hospitals can play in supporting physicians treating patients who are experiencing obstetric emergencies. After introducing the foundational legal context in Part II, this article offers three significant contributions to the existing scholarship in this field.
First, the article demonstrates that state abortion laws impose on physicians the atypical responsibility of making mixed medical-legal determinations — decisions that are made even more difficult because any errors or misjudgments may result in criminal liability. Part III contrasts the way in which physicians typically make clinical judgments about emergency care with evidence about how physicians treating obstetric emergencies are currently doing so. As a result of restrictive and vague state laws, physicians in abortion-hostile states have meaningfully changed their practices, departing from professional standards of care for emergency treatment. As a result, patients with pregnancy complications that put them at risk of serious injury are sometimes denied medically appropriate treatment or experience dangerous delays.
Second, in Part IV, this article collects the most up-to-date research from congressional, investigative, empirical, and media reports to present a taxonomy of the various institutional policies and practices that can influence physician decision-making about emergency abortion. Although it is exceedingly difficult to research these often-opaque policies, the institutional environment within which physicians practice can have a significant impact on emergency decision-making and patient outcomes.Footnote 14 Part IV evaluates the efficacy of these various institutional approaches with respect to the dual goals of preventing patient harm and reducing physicians’ legal risk.
In Part V, the article concludes by offering a set of best practices that hospitals can adopt to empower physicians to provide clinically appropriate treatment to patients experiencing obstetric emergencies.Footnote 15
First, any hospital policies relating to emergency pregnancy termination must protect physicians’ discretion to make independent clinical judgments in accordance with evidence-based medical standards. Examples include the medical staff’s independent adoption of professionally supported practice guidelines for managing obstetric emergencies, or administrative policies requiring secondary physician review of a treating physician’s assessment. Patient health and safety are best served when treatment decisions are directed by medical providers’ professional expertise and training, rather than by lay administrators concerned with institutional risk management.
The second recommendation recognizes that no institutional mechanism can prevent aggressive prosecutors from pursuing criminal charges against treating physicians.Footnote 16 Nevertheless, hospitals can take important steps to insulate physicians against at least some legal risk — which may in turn grant doctors the confidence they need to treat patients in accordance with their professional and fiduciary duties. Hospitals must commit to providing physicians with robust legal support, including clear legal guidance that interprets state emergency exceptions as broadly as possible to allow physicians to practice “up to the limits of the law”;Footnote 17 advice on how to most effectively document emergency treatment decisions; and guarantees of legal defense or indemnification in the event of prosecution. Such policies would not only protect physicians who make reasonable medical judgments when treating patients facing obstetric emergencies but would also reaffirm hospitals’ institutional commitment to their foundational mission: the delivery of high-quality medical care that serves the best interests of patients and communities.
II. Legal Context Post-Dobbs: State Abortion Bans, Emergency Exceptions, and EMTALA
To appreciate the importance of hospital procedures for managing obstetric emergencies, it is essential to understand the legal context in which physicians in abortion-hostile states are currently practicing. In June 2022, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, concluding there is no constitutional right to abortion.Footnote 18 Reversing almost fifty years of precedent, the Court returned the issue of abortion regulation to the states, giving them greater freedom to impose restrictions on abortion with limited judicial oversight.Footnote 19 As a result, many state legislatures quickly passed laws criminalizing abortion, and others sought to enforce pre-1973 abortion bans that had been deemed unconstitutional after Roe v. Wade. Footnote 20
A. State Abortion Laws and Emergency Exceptions
According to the most recent data from the Guttmacher Institute and the Kaiser Family Foundation, thirteen states now have total bans on abortion, and twenty-eight states ban some abortions based on gestational limits.Footnote 21 Florida, Georgia, Iowa, South Carolina, and Wyoming are among the most restrictive states with gestational bans, prohibiting abortions after six weeks since the patient’s last menstrual period.Footnote 22 Physicians who violate these laws can face severe criminal penalties, including imprisonment;Footnote 23 revocation of professional licensure, as well as civil monetary penalties.Footnote 24 However, as of this writing, no U.S. physician has yet been criminally convicted for violating a state abortion law.Footnote 25
Notably, even the most restrictive laws include narrow exceptions that apply in situations where pregnancy termination is necessary to prevent a patient’s death.Footnote 26 According to the Guttmacher Institute, all forty-one states that have some type of abortion prohibition include “life exceptions.”Footnote 27 All but six of these states also permit abortion when a pregnancy poses a serious risk to the patient’s health.Footnote 28
The precise statutory language of these exceptions varies somewhat from state to state. In a comprehensive survey of statutory definitions, Prof. Greer Donley and co-author Caroline Kelly found that most states permit abortion to “avert” or “prevent” a pregnant patients’ death; a few instead refer to abortions that are necessary to “save” or “preserve” the patient’s life.Footnote 29 States with exceptions for maternal health all use “slight variations of the language ‘necessary … to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.’”Footnote 30 Regardless of the specific language that legislatures have adopted, however, emergency exceptions are generally quite narrow.
Moreover, because these laws were drafted by legislators with no medical expertise, they are riddled with ambiguities that introduce legal uncertainty into what should otherwise be purely medical judgments.Footnote 31 As explained by the U.S. District Court for the District of South Carolina, a state abortion ban is unconstitutionally vague when it relies on terms like “substantial,” “irreversible,” “impairment,” and “major bodily function,” which “are not commonly employed by medical professions in their practice” and therefore “fail[] to provide [doctors] fair notice of what conduct falls outside the … exceptions.”Footnote 32
While some legislators and courts have instead placed the blame on doctors for misunderstanding the legal standard,Footnote 33 empirical evidence supports the argument that emergency exceptions to state abortion bans are so imprecise as to be unconstitutionally vague.Footnote 34 Many commentators have argued that this lack of clarity is intentional.Footnote 35 Even physicians themselves recognize that the vague language of the laws may be intended to have a chilling effect on medical practice.Footnote 36
In a recent study, Prof. Maxine Eichner and coauthors demonstrate how ill-suited these vaguely worded emergency exceptions are to real-world medical decision-making.Footnote 37 They note that several state definitions “require some immediacy of the medical threat, for example, saying that ‘immediate abortion’ must be necessary to avert the patient’s death.”Footnote 38 This language is sufficiently ambiguous that the physicians interviewed reported significant uncertainty about whether they would be insulated from liability if they made good-faith medical judgments in compliance with clinical standards of care.Footnote 39 In particular, respondents “had difficulty identifying what level of risk must be present to determine that abortion is ‘necessary’ to ‘prevent the death’ or ‘to save the pregnant woman’s life.’”Footnote 40 One physician highlighted the impossibility of making definitive clinical predictions, explaining that in their experience, “[n]othing is 100% lethal, so nothing qualified [under the law].”Footnote 41
Physicians raised similar concerns about the level of risk needed to justify intervention in cases of maternal health threats short of death,Footnote 42 given that these statutes do not define what constitutes a “serious” or “substantial” risk.Footnote 43 Respondents in Eichner’s study noted that in any other medical context, the patient is the party who decides, based on their subjective judgment, what constitutes a substantial enough risk to warrant medical intervention.Footnote 44 In abortion-hostile states, however, patients are denied the opportunity to evaluate risk on their own and make treatment decisions consistent with their own values — instead, doctors are forced to guess at how state legislators, prosecutors, and judges would evaluate the risk to the patient in light of vague statutory language. As a result, doctors report significant uncertainty about how quickly they can act in urgent situations where termination of pregnancy is necessary to prevent deterioration of a patient’s condition.Footnote 45
Overall, respondents expressed frustration at having to interpret directives drafted by legislators and interpreted by attorneys unfamiliar with clinical practice or medical terminology.Footnote 46 Interviewees noted that in many of the medical circumstances that might prompt consideration of pregnancy termination, precise predictions about a patient’s trajectory are impossible, and reasonable physicians might hold different opinions.Footnote 47 As one respondent noted, “[o]ne physician might be sufficiently alarmed by a change in laboratory values to determine an abortion was warranted, while another might reasonably wait longer to see the trajectory of a patient’s course.”Footnote 48
Notably, only two states give deference to physicians’ good-faith medical judgment as to the necessity of emergency abortion; all others impose a “reasonable medical judgment” standard, which effectively allows prosecutors to second-guess physicians’ clinical expertise.Footnote 49
B. EMTALA
While state laws dramatically limit the accessibility of abortion, hospitals and physicians are also subject to a federal law, the 1986 Emergency Medical Treatment and Active Labor Act (“EMTALA”) Footnote 50 which arguably requires them to provide abortion as a stabilizing treatment in obstetric emergencies even in states that criminalize abortion.Footnote 51 As of this writing, it is still an open legal issue as to whether EMTALA preempts state abortion bans.Footnote 52
EMTALA requires Medicare-participating hospitals to screen and stabilize patients who present at emergency rooms regardless of their ability to pay.Footnote 53 Any patient who is found to have an “emergency medical condition”Footnote 54 must be medically stabilized; transfers are permitted in only limited circumstances.Footnote 55 In July 2022, less than a month after the Supreme Court issued its decision in Dobbs, the Department of Health and Human Services (“HHS”) issued a notice to providers clarifying that EMTALA requires appropriate stabilizing treatment for patients experiencing pregnancy-related emergencies such as miscarriage, ectopic pregnancy, and severe preeclampsia.Footnote 56 The HHS guidance stated that if termination of pregnancy is the clinically appropriate stabilizing treatment in such situations, EMTALA requires hospitals to provide that treatment even if abortion is prohibited by state law.Footnote 57
As might be expected, HHS’s interpretation of EMTALA as preempting state abortion bans was challenged almost immediately. Just days after the HHS guidance was issued, the state of Texas sued to block its enforcement, arguing that HHS exceeded its authority because “EMTALA does not authorize the federal government to compel healthcare providers to perform abortions.”Footnote 58 Texas ultimately prevailed in its challenge; in 2024, the Fifth Circuit affirmed a district court’s grant of a preliminary injunction against enforcement of the HHS guidance in the state of Texas.Footnote 59
In Idaho, in contrast, arguments that EMTALA preempts the state’s near-total abortion ban have been more successful. In United States v. Idaho,Footnote 60 the U.S. Department of Justice argued that Idaho’s limited leeway for physicians to defend against prosecution in cases of emergency abortionFootnote 61 was narrower than EMTALA’s definition of “emergency medical condition.”Footnote 62 In 2022, the U.S. District Court for the District of Idaho granted the United States’ motion for a preliminary injunction;Footnote 63 the injunction remained in place after en banc review by the 9th Circuit.Footnote 64 The case’s subsequent trajectory involved the Supreme Court’s highly unusual dismissal of writs of certiorari that it had initially granted,Footnote 65 followed by the Trump administration’s dismissal of the complaint in March 2025.Footnote 66 Accordingly, the statewide injunction in Idaho is no longer in force. However, a private health system’s more recent challenge on similar grounds has since succeeded, resulting in a preliminary injunction prohibiting enforcement of the Idaho abortion ban against the health system and its medical providers to the extent they perform any abortions necessary to stabilize an emergency medical condition under EMTALA.Footnote 67
Although the Trump administration officially revoked the 2022 HHS guidance in June 2025,Footnote 68 federal courts will still be tasked with the responsibility of negotiating the apparent tension between state abortion bans and the statutory text of EMTALA. Regardless of how courts ultimately resolve this conflict, termination of pregnancy in cases of life-threatening emergency will continue to be legally permissible in even the most abortion-hostile states — at least in theory.Footnote 69 The practical challenge, of course, is that physicians will continue to struggle to understand the scope of statutory exceptions as they apply to on-the-ground patient care.
III. Emergency Abortion Decisions in Practice
Despite the fact that state abortion bans include exceptions for medical emergencies, a vast body of evidence demonstrates that patients who require emergency pregnancy termination in abortion-hostile states are often unable to secure the treatment they need.Footnote 70 Beset by delays while hospital staff and administrators balance clinical need against legal risk, patients may wait hours or days before receiving treatment.Footnote 71 In some cases, these delays result in disability or death.Footnote 72
These results are not inevitable. Rather, they result from the unique circumstances created by criminal abortion bans, which require health care providers to practice at the intersection of medicine and law.
Unlike almost all other medical treatment decisions, the decision about whether to provide an emergency abortion involves both clinical judgment and legal judgment. From a clinical perspective, a physician needs to assess a pregnant patient’s condition and determine the appropriate treatment for that condition as judged by medical standards of care. However, the physician also needs to be aware of the legal standards for providing emergency abortion and the various ways in which prosecutors might interpret those standards. Finally, the physician must make a subjective assessment of legal risk before deciding whether or not to proceed with the abortion. In many cases, the uncertainty surrounding the scope of emergency exceptions has a chilling effect, leading physicians to deviate from standards of care, proceed too conservatively, and risk patients’ lives.Footnote 73
A. Clinical Judgment
Under typical circumstances, physicians are responsible for making clinical decisions about what medical treatment is appropriate for a particular patient. Even physicians employed by hospitals or other health care institutions retain this professional autonomy. Hospitals, as corporate entities, effectively delegate responsibility for clinical care to their medical staff in recognition of the fact that hospital administrators, boards, and trustees lack the training and expertise to make patient care decisions.Footnote 74 This approach is consistent with the long-standing corporate practice of medicine doctrine, which is aimed at preventing laypersons with no medical expertise from influencing professional judgment about clinical care.Footnote 75
Accordingly, the common law of medical malpractice imposes liability on clinicians — not health care entities — for errors in medical judgment that lead to patient harm.Footnote 76 In malpractice actions, physicians are judged according to a professional standard of care, considering how reasonable physicians would customarily act in similar circumstances.Footnote 77 At trial, medical experts testify as to the standard of care, and fact-finders’ determination about whether a physician defendant breached that standard is guided directly by these expert opinions.Footnote 78
The clinical standards of care for obstetric medicine recognize that a variety of conditions can seriously threaten a pregnant patient’s health. These include preterm premature rupture of membranes (PPROM);Footnote 79 incomplete miscarriage with retained products of conception;Footnote 80 placental abruption;Footnote 81 severe hypertensive disorders like preeclampsia, eclampsia, and HELLP syndrome (hemolysis, elevated liver enzymes, and low platelet count);Footnote 82 and sepsis.Footnote 83 In all these situations, medical termination or surgical evacuation may be necessary to prevent serious injury, and delayed intervention can lead to a patient’s death.Footnote 84 Accordingly, professional associations like the American College of Obstetricians and Gynecologists provide comprehensive evidence-based clinical guidance to providers treating pregnant patients experiencing these conditions.Footnote 85
For many of these conditions, treatment options may include expectant management, medical termination, or surgical evacuation; the final choice of treatment typically depends on gestational age, maternal risk, and patient preference.Footnote 86 Importantly, clinical guidelines recommending medical and surgical termination are not reserved for emergent situations where a patient’s life is at risk. Physicians routinely provide these interventions before a patient’s condition deteriorates, precisely because the risk of morbidity and mortality increases significantly as a patient’s condition progresses.Footnote 87
However, evidence shows that physicians in states with restrictive abortion laws often struggle with the choice of whether to delay care until the patient’s death is imminent and therefore clearly within the scope of the state emergency exception (for example, waiting until a patient is hemorrhaging or septic), or whether to intervene sooner as required by medical standards of care.Footnote 88
B. Legal Interpretation
Once a physician has concluded that a pregnant patient’s life or health is at risk and that emergency termination is the standard of care treatment, they are faced with making an even more challenging determination. Without any legal training — and often without meaningful guidance from hospital attorneys — the physician must determine whether their patient’s urgent or emergent medical condition meets the statutory requirements of their state abortion ban.
As explained in Part II-A, emergency exceptions in abortion-hostile states are drafted in ways that makes it difficult to determine conclusively whether a particular patient’s condition is serious enough to warrant termination of pregnancy under state law. The American College of Obstetricians and Gynecologists (ACOG) describes the language used by these statutes as “confusing and unclear.”Footnote 89 A senior staff attorney at the Center for Reproductive Rights concluded, “[i]f I was the hospital general counsel and I was looking at these laws, I have absolutely no idea what my physician could or could not do in any particular circumstance … .”Footnote 90
It should come as no surprise, then, that physicians struggle in determining whether what they consider medically necessary falls within the state legislature’s understanding of a medical emergency. A recent study of maternal fetal medicine doctors in the Southeastern United States “revealed recurring patterns that demonstrated uncertainty regarding whether statutory exceptions would shield doctors from suit.”Footnote 91 Researchers found that physicians “struggled to apply the statutory language” of the abortion laws — most notably in determining what degree of medical risk would satisfy the statutory exceptions, and in determining how long to wait before performing an abortion procedure so as to comply with the law without endangering the patient’s life.Footnote 92 In a 2023 study of reproductive health care providers in Louisiana, respondents shared similar concerns, leading the study’s authors to conclude that the state law’s “ill-defined exceptions cause confusion and uncertainty for clinicians when treating patients.”Footnote 93
Anecdotal reports from physicians nationwide also show widespread confusion about the parameters of state laws and how to apply them in clinical practice. Dr. Sarah Osmundson, an OB/GYN and maternal-fetal medicine specialist at Vanderbilt University Medical Center (VUMC), serves on VUMC’s abortion committee and therefore has a more comprehensive understanding of the Tennessee abortion law than most physicians.Footnote 94 In an interview, Dr. Osmundson shared her understanding of the legal standard:
The exception says, and I wrote it down because I always get this wrong a little bit, but it says that you can perform an abortion to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function. To me, even from the beginning, this was very gray, because what does that mean? Where is that risk? It is a continuum of risk. Where is the cut point that we have to decide some aspect of risk is too high?Footnote 95
One might expect that physicians in such circumstances would not be left to make these nuanced legal determinations on their own; statutory interpretation is clearly beyond the scope of their professional expertise.Footnote 96 However, evidence demonstrates that it is rare for physicians to receive clear legal guidance from attorneys at their institutions.Footnote 97
Several recent reports illustrate these challenges.Footnote 98 A 2024 Senate Committee report and a 2023 Washington Post investigation found that few hospitals have created proactive guidance for their medical staff about how to navigate the tension between medical standards of care, state abortion bans, and EMTALA’s emergency treatment requirements.Footnote 99 And when physicians encounter patients experiencing obstetric emergencies, it can be extraordinarily difficult for them to contact hospital attorneys or administrators;Footnote 100 moreover, the legal counsel those institutional actors provide is often inadequate.Footnote 101
The most comprehensive of these is the Senate Finance Committee report, which was based on documentation provided to the Committee by eight hospitals where pregnant patients had been injured or died due to inadequate emergency care, as well as roundtable discussions with health care providers practicing in a variety of states.Footnote 102 The Committee sent inquiries to these hospitals asking them for “written information on a patient’s right to care … hospital policies, processes, and procedures related to state abortion laws and emergency reproductive health care, [and] human resource support provided to staff navigating the conflict between a state abortion ban and the medical standard of care when a patient presents in need of emergency medical care.”Footnote 103 The report found that most hospitals had not created new EMTALA guidance in response to Dobbs or legal developments at the state level.Footnote 104 Few hospitals provided the Committee with any evidence of “proactive counseling for staff on changes in the law and potential impacts on their practice.”Footnote 105 Physicians likewise described “inadequate communication regarding the changing legal landscape and lack of meaningful support from hospital leadership.”Footnote 106 For example, a Tennessee OB/GYN recounted that “when all of this became very confusing, they just disbanded the [hospital] committee” responsible for evaluating the patient impact of the state abortion ban.Footnote 107 A Texas physician described hospital leadership as “being conspicuously and deliberately silent” on issues relating to emergency obstetric care.Footnote 108
Investigative reporting by the Washington Post reached similar conclusions.Footnote 109 Based on interviews with twenty-six physicians and public records from fifty large hospitals in abortion ban states, the report found “that many hospitals have failed to provide specific guidance or policies to help doctors navigate high-stakes decisions over how to interpret new abortion bans — leading to situations where patients are denied care until they are on the brink of permanent injury or death.”Footnote 110 Twenty-eight of the thirty-seven hospitals that responded to the Post’s inquiries either provided no guidance at all, or offered guidance “that was virtually identical to the language of the abortion ban.”Footnote 111 Some physicians interviewed reported that when they asked their hospitals to develop policies that could guide their decision-making, hospital administrators declined to do so.Footnote 112
Targeted state-specific research supports these findings. In a 2022 study of OB/GYNs working in Ohio, respondents reported that few of the institutions in which they practiced provided them with any information about the state’s abortion law.Footnote 113 Many said they were “unsure whom to ask (inside or outside their organizations) if they wanted accurate and digestible information about Ohio abortion regulations.”Footnote 114 In interviews with Texas physicians, several described feeling as if their hospitals were not providing them with adequate guidance on how to manage obstetric emergencies after Dobbs. Footnote 115 One emergency medicine physician said, “Even in cases of a confirmed loss of the fetus, we have not gotten much [institutional] guidance on how to approach these situations; maybe our OB colleagues have, but I would say in the ED we have not gotten any.”Footnote 116 Similarly, a Texas professor of maternal-fetal medicine described providers in her state as “treading on eggshells [because] they don’t even know what the rules are.”Footnote 117
Even when hospitals do establish some policies regarding emergency obstetric care, there is no guarantee that those policies accurately reflect the legal standard in that state. For example, a 2025 report by ProPublica found that “legal departments at many major Houston hospitals still advise physicians not to perform abortions [for PPROM] until they can document serious infection,”Footnote 118 even though the Texas Supreme Court held in 2024 held that abortion for PPROM “satisfies the law’s inquiry.”Footnote 119
Support is also lacking when physicians need to make quick decisions in urgent or emergent circumstances. The Senate Finance Committee report found that many hospitals direct physicians with specific questions about a patient’s care to consult ethics committees, human resources, or legal counsel.Footnote 120 However, physicians reported that these resources are rarely available twenty-four hours a day and seven days a week.Footnote 121 According to one emergency medicine physician in Texas, “[i]n a life or death situation, it’s pretty much impossible that the physicians could reach ethics and legal [in a] timely [manner] in many instances.”Footnote 122
Doctors who can access hospital resources often report “being stonewalled or receiving minimal support.”Footnote 123 According to one physician, “the lawyers … refused to meet with us for over two months. [Then] they would just regurgitate what the law said back to me.”Footnote 124 Likewise, the Washington Post found that physicians who seek out institutional guidance on interpretation of statutory exceptions are “given directives from hospital officials that are as vague as the laws themselves.”Footnote 125 For example, Dr. Amelia Huntsberger reported that she called six administrators at her Idaho hospital before one was able to advise her on whether emergency abortion would be legal for the patient she was treating; the response the administrator gave her was, “You know the laws, Amelia … . You know what to do.”Footnote 126 Dr. Huntsberger said she found it “profoundly disturbing that I was supposed to be taking advice from someone who didn’t seem to have read every single line” of the state statute.Footnote 127
Unsurprisingly, physicians routinely express frustration at being put in a position where they are asked to make legal judgments that are far beyond the scope of their clinical expertise. Dr. Osmundson of Vanderbilt University Medical Center expressed it this way:
When we’re debating these issues, we are trying to interpret a law from a lawyer perspective. And, like, I’m actually really not qualified to do that. Like, I’m very qualified to give you my medical judgment, and I’m very qualified to talk to a patient and help them walk through that decision-making process. I am not qualified to read, you know, 15 words in a law and try to interpret it… . I actually, in sort of joking one time when our hospital lawyer was there, I said, Could we just call up Bill Lee [our hospital counsel] or call up, you know, our attorney general and ask them? Like, give them the case and say, What would you like us to do? And it’s sort of tongue in cheek, but it’s not, right? Like, they’re the ones who are going to decide whether they want to prosecute me. So why can’t I call them up and say, Do you think this makes the exception? Why am I being asked to kind of guess at whether this is a prosecutable action?Footnote 128
C. Chilling Effects
This widespread uncertainty about the legal interpretation of emergency exceptions bans has increased physicians’ fear of legal consequences for what would otherwise be routine medical decisions.Footnote 129 In interviews with Louisiana physicians, for example, researchers found that “[n]early every clinician discussed ways the threat of being targeted for criminal prosecution had impaired the care they felt able to provide to pregnant patients.”Footnote 130 Maternal fetal medicine doctors in the Southeast expressed fear that aggressive prosecutors would second-guess their medical judgments, and that even reasonable clinical decisions would subject them to criminal punishment.Footnote 131 One physician described being “frank” with their patient, telling her, “I absolutely support you in this … . And legally, we can’t … I would go to jail for two years. I would be a felon. I would lose my medical license.”Footnote 132
Interviews with doctors nationwide reveal similar concerns. As one Indiana OB/GYN explained:
There is no way that I would risk my personal freedom and jail time for providing medical care … I would love to show my children that I am brave in the world, but our society will not allow me to be a civil-disobedient citizen … because I would be imprisoned, I would be fined, I would lose my license and I very well could be assassinated for doing that work.Footnote 133
A physician who performs abortions for patients with medical complications in Tennessee said he “can’t shake the feeling of being constantly on call, his livelihood perpetually on the line.”Footnote 134
Some physicians even preemptively retain criminal defense attorneys because they recognize that their institutions may not provide robust legal support if they are prosecutedFootnote 135 and that their medical malpractice insurance will not protect them against criminal prosecution.Footnote 136 One Texas physician reports hospital counsel advising doctors “to get a retainer for our own lawyer in case we needed one during our routine practice of medicine.”Footnote 137
This concern is particularly significant for physicians in hospital emergency departments, because hospitals are subject to strict reporting requirements.Footnote 138 Furthermore, in larger institutions, more people are involved in the process of diagnosis, treatment, and charting, which means there are more opportunities for others to second-guess a doctor’s clinical decision or report them to authorities.Footnote 139 As one author notes:
Medical care is very different than it was in midcentury America. It’s not a ‘lone wolf’ enterprise anymore: Doctors are often employed in corporate systems where every little item is tagged and multiple people are involved in every decision. Even if they want to defy the law or boldly skirt the edge of it, their employers may not let them — or a colleague could turn them in.Footnote 140
Even though the risk of criminal conviction is, at this point, entirely hypothetical,Footnote 141 physicians maintain these fears in part because of the vehemency with which some state prosecutors have spoken about this issue. In Louisiana, for example, the state abortion ban provides an exception in cases where the abortion is “necessary in good faith medical judgment or reasonable medical judgment” to prevent death or serious impairment.Footnote 142 In 2022, however, then-Attorney General Jeff Landry sent a letter to the Louisiana State Medical Society defending his right to prosecute violators, who he said are “jeopardizing [their] liberty and medical license”Footnote 143 — despite there being a statewide injunction of Louisiana’s abortion ban at the time.Footnote 144 One maternal-fetal medicine specialist in Louisiana interpreted the letter as saying, “‘I will put you in jail if you break these rules.’ Literally, I am out to get you, so don’t break these rules.”Footnote 145 Similarly, in a letter to three Texas hospitals, Attorney General Ken Paxton threatened to prosecute anyone who violated the state abortion ban despite a recent judicial injunction against state enforcement of the ban.Footnote 146 In response to these threats, one Texas physician interviewed said, “I do not know that I feel out of reach of [Texas officials]. I feel like I have a target on my back.”Footnote 147
D. Treatment Decisions and Clinical Consequences
In the absence of a state abortion ban, a physician would advise a patient with PPROM who arrives at the emergency room that there are two possible options for managing the condition. Expectant management (watchful waiting) is aimed at preserving the possibility of neonatal survival after preterm birth, but carries an increased risk of maternal mortality; immediate termination via dilation and induction ends the pregnancy but significantly lessens the risk of maternal hemorrhage, sepsis, and death.Footnote 148 In a state without an abortion ban, a patient would be able to choose to how to proceed in light of their own values and risk assessments.Footnote 149 However, in an abortion ban state, even if a doctor were to advise the patient this way, their patient would not have the option of immediate termination unless her condition met the state’s definition of medical emergency — for example, if she developed sepsis.Footnote 150
If a physician has not been able to secure meaningful legal guidance from hospital counsel about whether state law permits termination in cases of PPROM with the goal of preventing sepsis and knows that making the “wrong” decision may result in the loss of their medical license and incarceration, the course of action is clear. There is no meaningful counterbalance to the possibility of criminal prosecution for performing an abortion that falls in a grey zone.Footnote 151 Accordingly, even if termination of pregnancy for PPROM is clinically appropriate and the patient would elect this option to reduce their risk of disability and death, a doctor may ultimately choose to depart from the standard of care and delay treatment as a result of the chilling effect of the state ban. This outcome is particularly troubling because it may result in the denial of an abortion that, if presented to a court, might be found permissible under state law.Footnote 152
One Texas OB/GYN offered this description of how her and her colleagues’ management of obstetric emergencies have changed: “[s]ince these laws have gone into effect, the medicine we practice is no longer ours and is more of a legal construct. Instead of worrying about whether the patient is sick (based upon on our clinical judgement and medical training), we now have to worry about whether or not the patient is sick according to the legal definition, which is defined per institution.”Footnote 153
Empirical research and investigative reporting demonstrate that this scenario is playing out across the country. According to Profs. Lindgren and Oberman, the “chilling effect caused by the uncertain scope of abortion bans has triggered a broad-scaled retreat from what constituted the standard of care when treating pregnant patients prior to Dobbs,” resulting in patient harm.Footnote 154
The earliest evidence of the harmful effects of state abortion bans on obstetric emergencies was seen in Texas after the passage of Senate Bill 8, which prohibited non-emergency abortions beyond six weeks’ gestational age.Footnote 155 In one study, researchers interviewed twenty patients with medically complex pregnancies, as well as twenty-five physicians specializing in obstetrics and gynecology, maternal and fetal medicine, and genetic counseling about the impact of the ban.Footnote 156 They found that “[p]atients with pregnancy complications or preexisting medical conditions that may be exacerbated by pregnancy are being forced to delay an abortion until their conditions become life-threatening”Footnote 157 — in the words of one physician, until patients are “on death’s door.”Footnote 158 Such delays increase the risk of morbidity and mortality, because as a patient’s condition becomes more serious, the likelihood of treatment being successful decreases.Footnote 159 A separate study of patients with pregnancy-related complications at two Texas hospitals after the abortion ban went into effect found that, as a result of state-mandated delays, patients waited on average nine days between presenting with complaints and finally receiving medically necessary termination of pregnancy.Footnote 160 More recently, a 2025 ProPublica report studied seven years of hospital discharge data in Texas and found that for patients hospitalized with second-trimester pregnancy loss, sepsis rates increased by fifty percent after abortion was banned in 2021.Footnote 161
After the 2022 Dobbs decision, this phenomenon expanded nationwide. Several studies have demonstrated increased risks of maternal morbidity and mortality resulting from the chilling effect of state abortion bans.Footnote 162 The 2024 Care Post-Roe study, conducted by the Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California San Francisco, documented dozens of cases of patients who suffered harm as a result of delayed or denied obstetric care in abortion ban states.Footnote 163 Examples include a patient with PPROM at eighteen-to-twenty weeks who had to wait five days after her membranes ruptured to be transferred to a facility in a state where abortion was legal; a patient with vaginal bleeding at twenty-to-twenty-four weeks who was likely to be miscarrying but could not receive treatment until she was hemodynamically unstable; a patient in advanced labor at nineteen-to-twenty weeks who was denied an epidural because anesthesiologists believed doing so might violate the law; and a patient with a partially molar pregnancy who was denied a termination that would have been legal under state law, and suffered for eight weeks before another provider referred her for a legal abortion.Footnote 164 In another study of OB/GYNs in states with abortion bans, respondents described being forced to delay medically necessary care in pregnancy-related emergencies, often on the basis of hospital policies or institutional legal guidance.Footnote 165
News reports, investigative reports, and court dockets are full of cases like these. Amber Thurman of Georgia died of septic shock because doctors waited nineteen hours to remove retained products of conception from a self-managed medication abortion.Footnote 166 Josseli Barnica of Texas died of infection after experiencing a miscarriage at seventeen weeks but being denied treatment because her fetus still had a heartbeat.Footnote 167 Amanda Zurawski of Texas experienced PPROM at eighteen weeks and could not receive an abortion until she developed sepsis three days later, by which point one of her fallopian tubes had closed, compromising her future fertility.Footnote 168
Even providers who do not personally perform abortions may be hesitant to be involved in the diagnosis or treatment of obstetric emergencies.Footnote 169 Some OB/GYNs and maternal-fetal medicine specialists have expressed concern that health care providers who do not routinely work with pregnant patients are particularly subject to the law’s chilling effects, describing these actors as “assum[ing] the role of ‘enforcers’ of abortion statutes.”Footnote 170 One doctor in Louisiana, for example, recalled specialists who were unwilling to sign their names to documentation recording a patient’s emergency condition because of the risk that they would be prosecuted if that documentation were used to “inform a decision by another physician to perform an abortion.”Footnote 171 Another physician described a situation where anesthesiologists refused to provide an epidural for pain management to a patient who went into labor at twenty weeks when her amniotic sac was protruding through her cervix, because “[t]hey believed that providing an epidural could be considered [a crime] under the new law.”Footnote 172 The physician recalled, “I will never forget this case because I overheard the primary provider say to a nurse that so much as offering a helping hand to a patient getting onto the gurney while in the throes of a miscarriage could be construed as ‘aiding and abetting an abortion.’ Best not to so much as touch the patient who is miscarrying … . A gross violation of common sense and the oath I took when I got into this profession to soothe my patients’ suffering.”Footnote 173
Notably, these negative health impacts are not limited to patients seeking hospital care for pregnancy-related emergencies. A substantial majority of office-based OB/GYNs also report that Dobbs has “worsened their ability to manage pregnancy-related emergencies.”Footnote 174 In states with abortion bans, fifty-five percent of respondents reported that their “ability to practice within the standard of care” has worsened since Dobbs. Footnote 175 Troublingly, vague and restrictive abortion laws have also had a chilling effect on providers’ willing to share basic medical information about abortion with their patients — even when there is no legal prohibition on such communication.Footnote 176 Finally, abortion bans have also negatively impacted the practice of oncologists and other specialists who routinely care for pregnant patients’ non-pregnancy related conditions.Footnote 177
IV. Decision-Making Models
Physicians making decisions about emergency abortion do not operate in a vacuum. Since patients with obstetric emergencies typically seek care at hospital emergency departments, the physicians most often called upon to make these decisions do so within a larger institutional environment. And institutional policies can have a critical impact on patient outcomes.Footnote 178
In Texas, for example, a recent ProPublica report found that dramatic regional variations in maternal sepsis rates were driven by variability in how hospitals routinely managed obstetric emergencies.Footnote 179 In Houston, sepsis rates for women hospitalized for pregnancy loss in the second trimester increased by sixty-three percent after Texas’ abortion ban went into effect.Footnote 180 According to physicians practicing at several major medical centers in this region, they were advised by department chairs and hospital administrators “not to offer pregnancy termination for PPROM,” or left the decision to individual doctors “with no promise of legal support if they’re charged with a crime.”Footnote 181
In contrast, in the Dallas-Forth Worth region, sepsis rates increased by only twenty-nine percent.Footnote 182 At University of Texas Southwestern Medical Center, for example, doctors were initially told by hospital counsel that “they would no longer be able to act on their medical judgment” in obstetric emergencies.Footnote 183 However, after clinicians introduced evidence to educate hospital attorneys and administrators on how quickly sepsis can develop and cause death, the institution changed its policies.Footnote 184 Lawyers then advised the medical staff on how best to document the need for emergency termination in a patient’s chart, a supportive approach that one physician interpreted as “We have your back. We are going to take care of you.”Footnote 185
Evidence nationwide suggests that some hospitals are able to manage these situations more effectively than others, supporting both patients and doctors.Footnote 186 According to Dr. Daniel Grossman, lead author of the Care Post-Roe study, “there are a few facilities [in abortion ban states] that have stepped up and … set up policies to provide care in these situations with fewer barriers.”Footnote 187 Often, these processes developed only as a result of pressure from physician leaders.Footnote 188
Unfortunately, it is exceedingly difficult to engage in rigorous research about the decision-making models that hospitals and hospital-based physicians use when treating patients in need of emergency abortion. Few hospitals are willing to publicly share information on this topic, which makes it difficult to identify what policies, if any, they have in place.Footnote 189 Researchers in Oklahoma attempted this, posing as prospective patients and requesting information from labor and delivery departments across the state about their internal procedures for managing medical emergencies during pregnancy.Footnote 190 Investigators found that “[n]ot a single hospital in Oklahoma appeared to be able to articulate clear, consistent policies for emergency obstetric care.”Footnote 191 At three hospitals, department representatives informed callers that although internal policies existed, they could not be shared with prospective patients.Footnote 192 Recall also the findings of the Senate Committee Report and Washington Post investigation described in Part III-B, which suggest that few hospitals have formal policies on managing obstetric emergencies — or at least policies they are willing to share publicly.Footnote 193
Despite the difficulty in finding concrete data on this issue, this Part collects the most up-to-date information from congressional reports, state-specific research, medical literature, and investigative and media reporting to provide a foundation for understanding the various institutional policies and practices that guide hospital-based physicians’ decisions about emergency abortion.Footnote 194 It then assesses the impact of these policies with respect to the dual goals of preventing patient harm and reducing physicians’ risk of prosecution.
A. Exclusively Clinical Discretion
In cases of emergency abortion, the physician is responsible for making two clinical decisions: first, diagnosing the patient with an emergency medical condition; and second, determining whether termination of pregnancy is appropriate in that context. At some hospitals, a treating physician may have the authority to make these decisions based exclusively on their clinical expertise, just as they would with any other medical intervention. Under this model, discretion lies with the physician as to how to proceed with a given patient’s care, with no layers of institutional oversight.
It is difficult to determine how common it is for hospitals to leave emergency abortion decisions entirely to the discretion of the treating physician. In a qualitative study of Ohio physicians working at a broad range of health care institutions, only one physician interviewed reported that their institution “empowered physicians to make that determination.”Footnote 195 But in a study of Oklahoma hospitals, representatives at about half of hospitals contacted “suggested that doctors make decisions in such cases.”Footnote 196 One Texas doctor interviewed by Human Right Watch reported that “[i]n [her] experience, hospitals leave medical teams to make these decisions — and assume the risk that goes with them — alone.”Footnote 197
While some physicians might feel comfortable making emergency abortion decisions on their own, others may choose to consult colleagues with additional clinical expertise before proceeding. One example of a fairly structured model for physicians seeking clinical support is Vanderbilt University Medical Center’s abortion committee (the “VUMC Committee”).Footnote 198 Formed in 2022 by maternal-fetal medicine specialist Dr. Sarah Osmundson and five other VUMC physicians who were “terrified about the new legal personal and professional risks” they faced after Dobbs, the committee’s goal was to “back one another up and aim to serve the most patients possible while staying within the law.”Footnote 199 In addition to developing clinical protocols that deem abortion medically necessary in specific clinical circumstances (for example, pre-viability premature rupture of membranes),Footnote 200 the VUMC Committee is frequently called upon by physicians dealing with complicated cases to “sign off that an abortion is medically indicated.”Footnote 201 Importantly, committee review is not institutionally required; it is a treating physician’s choice whether to consult the committee about any given case.Footnote 202
1. Patient Safety
Arguably, one of the greatest benefits of the exclusively clinical model is that it defers to clinicians’ professional expertise about what constitutes a medical emergency and what treatment is appropriate under customary standards of care. This is consistent with the way that physicians typically make clinical judgments, without institutional pressure or directive.
When physicians make treatment decisions based on clinical standards of care, patients are more likely to receive treatment that, according to professional consensus, is medically necessary and appropriate. This is not only due to physicians’ clinical expertise; it is also because doctors hold a fiduciary duty to act in their patients’ best interests.
Exclusively clinical decision-making is also consistent with physicians’ ethical obligations to provide high-quality and patient-centered care. According to the American Medical Association, “[t]he AMA’s Principles of Medical Ethics have long acknowledged that when the letter of the law would foreclose urgently needed care, physicians must have latitude to act in accord with their best professional judgment.”Footnote 203 In 2022, shortly after the Dobbs decision, the AMA amended its ethical guidance to “clarif[y] this principle in the context of abortion, expressly permitting physicians to perform abortions in keeping with good medical practice” even when prohibited by law.Footnote 204 The American College of Obstetricians and Gynecologists, likewise, emphasized its strong opposition to any abortion legislation “that does not center a clinician’s ability to make and act upon appropriate medical judgments in each unique situation.”Footnote 205
However, the exclusively clinical model may lead to inconsistent outcomes, particularly when a treating physician is making decisions without consulting colleagues.Footnote 206 Certainly, the hope is that all health care providers treating obstetric emergencies would share common ground with respect to clinical standards of care. But in practice, treatment decisions may be influenced by a variety of factors that are unique to the individual physician — including their tolerance of legal risk, their personal perspectives on abortion, and their unconscious biases.Footnote 207 Furthermore, even when physicians agree on a clinical standard of care, leaving the treatment decision to their discretion does not guarantee that patients will receive clinically appropriate treatment.Footnote 208 As demonstrated in Part III-C, when medical decisions are swayed by fears of prosecution, medically necessary care may be delayed or denied altogether. Dr. Osmundson, of VUMC, pointedly describes this as “considering care for the optics, rather than for what is right and best for the patient.”Footnote 209
2. Legal Risk
The exclusively clinical model may pose significant legal risk, however, when an individual physician has sole decision-making responsibility. While many abortion bans purport to defer to a physician’s “reasonable” medical judgment about what constitutes an emergency,Footnote 210 the vehemency with which some state attorneys general have threatened to prosecute violators suggests that reasonable and good-faith medical decisions may not in fact be protected.Footnote 211 Moreover, as described below, it has become apparent that some judges have no qualms second-guessing physicians’ reasonable clinical judgment.
In perhaps the highest-profile lawsuit relating to emergency abortion, Cox v. Texas,Footnote 212 Plaintiff Kate Cox was twenty weeks pregnant when testing revealed a fatal fetal diagnosis.Footnote 213 At the time the complaint was filed, Ms. Cox was experiencing “severe cramping and unidentifiable fluid leaks” that had brought her to the emergency room three times.Footnote 214 According to her physicians, “continuing the pregnancy put[] her at high risk for severe complications threatening her life and future fertility.”Footnote 215 Dr. Damla Karsan, Ms. Cox’s doctor, believed that an abortion was medically necessary under Texas’ emergency exception,Footnote 216 but out of an abundance of caution sought authorization from a Texas court. The trial court agreed with Dr. Karsan’s “good faith belief and medical recommendation” that abortion was necessary to prevent death or serious injury.Footnote 217 However, the Supreme Court of Texas stayed the trial court’s ruling the following day.Footnote 218 While holding that the emergency exception “does not hold a doctor to medical certainty,” the court nevertheless concluded that Dr. Karsan’s “good faith belief” that Ms. Cox’s condition was an emergency was not “reasonable” as required by state law.Footnote 219 The court offered no medical, scientific, or clinical support for its conclusion.Footnote 220
Although physicians in abortion ban states are subject to the risk of prosecution, the likelihood of criminal conviction may be lessened when more than one clinician weighs in on a treatment decision, or their decision is guided by clinical practice guidelines adopted by the medical staff.Footnote 221 Many doctors recognize the value of such a “safety in numbers” approach, where concurring clinical opinions provide support for the claim that an emergency abortion was necessary.Footnote 222
B. Institutional Policies and Procedures
At many hospitals, however, institutions themselves are more actively involved in physician decision-making about emergency abortions.Footnote 223 Common models include institutional policies requiring multiple physicians to approve the procedure, having cases reviewed by ethics committees, or involving hospital counsel.Footnote 224 While some of these procedures may be framed as providing supportive guidance to physicians, others seem designed primarily to protect the interests of the health care institution itself.Footnote 225
Notably, state abortion bans are aimed at physicians and other persons who perform illegal abortions; they do not explicitly impose criminal penalties on licensed hospitals where abortions might be performed.Footnote 226 Nevertheless, hospitals in abortion ban states are understandably concerned about institutional ramifications if a hospital-based physician were to perform an abortion that a prosecutor believes falls outside the state’s emergency exception.Footnote 227 Possible consequences include loss of federal or state funding, prosecution of hospital executives for aiding and abetting abortion, and reputational harms to the institution.Footnote 228 As a result of these concerns, hospital administrators and attorneys are more likely to be involved in clinical decisions about abortion than other types of patient care.Footnote 229
Importantly, there are significant variations in the degree to which hospital involvement constrains physicians’ clinical discretion. Some hospitals leave final decision-making in the hands of treating clinicians or the hospital’s medical staff. At others, interprofessional committees, hospital counsel, or non-clinician administrators are called upon to render a final decision as to whether emergency abortion is permitted for a particular patient. Each of these approaches, categorized below, has different implications in terms of protecting patients from harm and reducing physicians’ exposure to legal risk.
1. Policies Deferential to Clinical Expertise
Some hospitals have adopted formal policies for approving emergency abortion that explicitly defer to clinical standards and the judgment of treating physicians. The two most common approaches are adoption of clinical practice guidelines by the medical staff, and secondary physician review. In both models, treating clinicians have the final say as to whether emergency abortion is warranted for any particular patient, without influence from hospital attorneys or administrators.
As evidence-based medicine has become more prevalent, hospitals, acting through their medical staffs, may adopt evidence-based practice guidelines for diagnosing or treating specific conditions. For example, a hospital’s medical staff may establish a standing policy that certain conditions (like ectopic pregnancy or pre-term premature rupture of membranes) or test results (for example, creatinine levels impacting kidney function, blood pressure in hypertensive disorders, fever indicating sepsis) qualify as emergent enough to justify termination of pregnancy.
Indeed, many commentators have suggested that hospitals could help protect physicians from liability by adopting and implementing clinical practice guidelines established by professional organizations like ACOG.Footnote 230 Prof. Katie Watson, a nationally-recognized expert on the law and ethics of reproductive health care, recommends that the chairs of hospital OB/GYN departments in abortion-hostile states “attempt to reach agreement on which common clinical exceptions fall under the specific language of their state’s exception” with the goal of reducing legal risk by way of clinical consensus.Footnote 231 One important point to emphasize, however, is that the hospital’s medical staff must have the freedom to adopt such policies independently. A hospital’s governing board delegates significant authority to the hospital’s medical staff — a self-governing body, with its own bylaws that is responsible, for ensuring the quality of clinical care within the institution.Footnote 232 Although generally, almost complete deference is granted to the medical staff when it comes to policies relating to clinical care, there is a risk that hospital administrators in abortion-hostile states may limit the medical staff’s independent authority by requiring that abortion-related practice guidelines be approved by hospital management.Footnote 233 Note that while adoption of clinical practice guidelines is typically voluntary, some have suggested that hospitals could be “nudge[d] … in the direction of such protocols” by accrediting organizations like the Joint Commission.Footnote 234
Indiana University Health (“IUH”) offers one example of this model.Footnote 235 When Indiana passed its abortion ban shortly after Dobbs, IUH used its Hospital Incident Command System to design and implement changes necessary to ensure compliance with state law while also providing high-quality patient-centered care.Footnote 236 One step in this process was the development of “clinical workflows and protocols” for abortion-related care, which included the creation of “clinical decision-making pathways” developed by a team of over thirty clinicians.Footnote 237 That said, because these clinical protocols were developed in partnership with the incident command sections dedicated to legal and ethical concerns, it is unclear whether they were influenced by non-clinician administrators, and whether hospital board or executive approval was a condition of their adoption.Footnote 238
Where a hospital has no standing clinical policies, or where a patient’s situation falls outside the parameters of those policies, some hospitals establish formal procedures that a physician must follow before continuing with the patient’s treatment. Many hospitals, for example, require that the treating provider present the patient’s case for review by another physician or by a team of clinicians before an emergency abortion is performed.Footnote 239
This procedural model is consistent with how abortion decisions were often managed in the pre-Roe era.Footnote 240 At that time, many hospitals required physicians to secure the approval of “abortion committees” before performing medically necessary abortions.Footnote 241 Sometimes, state laws themselves required hospitals to establish formal procedures for authorizing emergency abortions.Footnote 242 For example, the Georgia law that was challenged in Doe v. Bolton (the companion case to Roe v. Wade) provided an exception for life-saving abortions, but required that the treating doctor’s judgment be confirmed by at least two other physicians “based upon their separate personal medical examinations of the woman.”Footnote 243
a. Patient Safety
Institutional policies that leave treatment decisions in the hands of clinicians are subject to the same risks and benefits as the exclusively clinical model described above, generally being more likely to result in active intervention that protects the patient’s health. That said, policies that require a physician’s treatment decision to be reviewed by a committee of other clinicians pose some risk of delayed treatment, which can lead to complications that substantially increase patient morbidity and mortality. Clinical practice guidelines (and review by a second physician) pose fewer risks of delay and are thus likely to be more protective of patient health and safety.Footnote 244
b. Legal Risk
By maintaining clinical responsibility for treatment decisions but providing a supportive institutional structure within which to make those decisions, hospitals can lessen the legal risk for doctors who determine that abortion is necessary to treat an obstetric emergency. Given that state law emergency exceptions typically hinge on the reasonableness of a physician’s decision, the adoption of professionally supported clinical practice guidelines lends greatest support in the event of prosecution.Footnote 245 The reasonableness of a treating physician’s decision is also supported when one or more clinicians are required to review a patient’s case and confirm that emergency abortion is necessary.
2. Policies Limiting Clinical Judgment
Post-Dobbs reports suggest that many hospitals require interdisciplinary committee review before authorizing emergency abortion.Footnote 246 At one Houston hospital, for example, “medically necessary abortions have to be approved by at least 75% of a panel made up of about six multidisciplinary physicians and a lawyer.”Footnote 247 In reporting on a case at the University of Alabama, a woman whose fetus was unlikely to survive pregnancy and delivery had to have her case “approved by several hospital committees made up of doctors … [and] while one committee had approved the abortion, a higher-level committee denied permission.”Footnote 248 Such policies exist even in states that provide greater protection for reproductive freedom; at Massachusetts General Hospital, abortions after the state’s twenty-four week limit are reviewed by a “committee of obstetricians, pediatricians, nurses, legal counsel, and others to review whether a pregnancy qualifies for termination under” state law.Footnote 249
Hospital attorneys are frequently involved in decisions about emergency abortion. However, their degree of involvement varies. Ethics committees and abortion review committees like the ones described above often include one or more attorneys representing the institution.Footnote 250 According to one report, “Attorney input [on committees] varies by hospital: Some appoint in-house counsel as full-time members of their ethics committees; others let in-house counsel sit in as unofficial advisers; some bring in lawyers from outside the institution.”Footnote 251
It is also fairly common for hospitals in abortion-hostile states to have lawyers on call that physicians treating obstetric emergencies can consult.Footnote 252 One physician interviewed in a multistate study expressed appreciation for the fact that his hospital offered twenty-four-hour legal support, explaining, “if I got in this situation — I would make a phone call, they would tell me exactly how and what I should do — recommend it — to protect myself and to make sure my patient got the right treatment.”Footnote 253 However, the 2024 Senate Committee report challenged the usefulness of these opportunities for consultation, noting physicians’ complaints that legal counsel was rarely available twenty-four-seven to manage life-threatening emergencies.Footnote 254 Moreover, physicians reported that when hospital attorneys did respond to calls, they would offer “minimal support,” often “just regurgitat[ing] what the law said back to [the physician].”Footnote 255 Several doctors contrasted the lack of support they received from hospital attorneys when dealing with patients needing abortion with the greater availability of support services for other clinically or ethically challenging situations.Footnote 256
At only a few of the hospitals surveyed by the Senate Committee did legal counsel provide formal guidance or documentation on the legal standards for emergency abortion.Footnote 257 A Missouri health system offered robust guidance, “provid[ing] its maternal and fetal medicine staff with a detailed legal memo interpreting the interplay of the Missouri abortion ban and their obligations under EMTALA,” as well as a “comparison between the definition of “emergency” under EMTALA and under the state law.”Footnote 258 One Georgia hospital “produced materials for staff education,” including “compliance guidance for the law’s documentation requirements” as well as “information about the law’s potential conflict with EMTALA and providers’ obligations under both laws.”Footnote 259 However, other institutions offer limited guidance that is unlikely to be helpful to physicians in need of counsel. For example, a Florida hospital updated its “termination of pregnancy procedure … which lays out legal cutoffs for care under state law”; however, the document did not explicitly explain providers’ obligations under EMTALA and “only reference[d] legal standards relevant to the state abortion ban.”Footnote 260
Given how secretive institutions are with respect to their policies, it is difficult to know whether physicians are required to secure approval before proceeding with an emergency abortion, or whether institutional input is just one factor that they can take into account when making a treatment decision.Footnote 261 That said, in at least some institutions, hospital attorneys and administrators appear have the final say as to whether abortion can be offered in a given clinical circumstance.Footnote 262 In a qualitative study of OB/GYNs in Ohio, “[m]ost participants stated that their employers required hospital legal counsel approval to determine when threats to maternal life warranted offering abortion.”Footnote 263 At one institution in Texas, the hospital CEO must sign off on treatment decisions for emergency abortion.Footnote 264
a. Patient Safety
Non-clinician involvement in emergency abortion decisions poses a greater risk to patients regardless of the exact procedure that needs to be followed — whether via administrative procedures that delay treatment decisions, interdisciplinary review processes that may not exclusively prioritize patient safety, or influence from hospital attorneys whose primary obligation is to protect the hospital from legal risk.
Any institutional policy that requires a treating physician’s decision to be reviewed by others necessarily risks delays in providing life-saving care.Footnote 265 Researchers who interviewed maternal-fetal medicine specialists in Southeastern states found that “[i]n a number of … cases, the resistance . . . of hospital legal counsel to confirm the legality of abortions delayed or deterred abortion care, despite … physicians’ judgment that a patient met the statutory criteria for abortion.”Footnote 266 News reports are replete with additional examples, like the Texas patient with premature rupture of membranes who was “forced to wait days for her infection to become severe before the hospital’s ethics panel agreed doctors could perform an abortion without running afoul of the law,”Footnote 267 and a Missouri patient with an ectopic pregnancy who waited “half a day” for a review panel to decide whether she could receive an abortion, despite the fact that “her fallopian tubes could have burst at any moment, causing internal bleeding and possible death.”Footnote 268 These risks are particularly high given that hospital ethics committees, attorneys, and administrators are rarely available for consultation on a twenty-four hour basis.
From a substantive perspective, institutional policies that limit physician discretion tend to interpret state emergency exceptions very narrowly, prioritizing the institution’s legal risk over physicians’ judgments about necessary medical interventions.Footnote 269 Unlike physicians, other institutional actors do not owe a fiduciary duty to act exclusively in the best interests of patients by providing the highest standard of medical care.Footnote 270
Historically, ethics committees have generally been well-respected mechanisms for thoughtfully balancing physicians’ ethical obligations to patients in complex clinical situations.Footnote 271 Where an interdisciplinary group of people with diverse perspectives concurs with a physician’s decision to provide emergency abortion, that lends the physician a meaningful degree of institutional (and perhaps legal) support to move forward with the treatment plan.Footnote 272 That said, the involvement of ethics committees in abortion decisions is not without criticism. Professors of philosophy and bioethics Elizabeth Lanphier and Jake Earl, for example, contend that “[t]he question of whether an abortion is medically necessary or legally acceptable is one that doctors or lawyers would make, not ethicists.”Footnote 273 Bioethicists Holly Fernandez Lynch, Steven Joffe, and Emily Largent concur, describing ethics committee involvement in medical decisions about emergency abortion as “misguided and dangerous,” posing risks of “inconsistency, bias, and discrimination.”Footnote 274
When interdisciplinary review committees include attorneys, there is even greater concern that health care decisions will be driven by institutional assessments of legal risk, rather than prioritizing professional ethics and patient care.Footnote 275 Many experts argue that when lawyers sit on ethics committees, their introduction of legal arguments into this sphere can become adversarial, derail conversations, and subordinate important ethical and clinical concerns.Footnote 276 And given that hospital attorneys tend to be fairly risk averse,Footnote 277 the outcomes of committee deliberation may likewise be more conservative.
Attorneys that represent hospitals have a fiduciary duty to protect their client from legal risk.Footnote 278 Their client, however, is the hospital as an institutional entity — not the individual clinicians who practice there.Footnote 279 Where a hospital prioritizes avoiding public attention and legal risk from prosecutors enforcing abortion bans that are not aimed at protecting patients’ medical interests, this institutional goal will take precedence over an individual physician’s concern about clinical care quality and patient safety.Footnote 280 According to one academic commentator, hospital legal departments report that they “would be far more comfortable defending a malpractice case against the provider than defending a criminal prosecution for violating an abortion ban.”Footnote 281 There is even a term for this: “nomicogenic harm” — where legal advice overrides medical judgment and results in a “lawyer-driven outcome inconsistent with ethically sound medicine.”Footnote 282
While there is no quantitative data on this issue, qualitative studies and interviews reinforce the concern that hospital attorneys’ risk-averse interpretation of state abortion laws hinder physicians’ ability to provide standard of care treatment, and in turn, lead to patient harm.Footnote 283 For example, an attorney at a Texas hospital described his team’s lengthy deliberations about the emergency exception in the state’s abortion ban, and explaining that they ultimately settled on a conservative interpretation that “sticks to the most restrictive language in the statute.”Footnote 284 This approach is consistent with the reports of physicians practicing in abortion-hostile states.Footnote 285 In one nationwide survey, physician respondents “felt that institutions harmed OB-GYNs through overly conservative interpretation of laws, prioritizing institutional protection over ethical obligation to patients.”Footnote 286 According to one interviewee:
The way our legal teams interpreted it, until they became septic or started hemorrhaging, we couldn’t proceed … Is a 5 percent risk of death enough? Does it take 20%? Does it take 50% … [T]he legal people seem to … say until you’re at a greater than likely chance of dying, you can’t make a decision.Footnote 287
Likewise, in a study of Ohio OB/GYNs, respondents described hospital administrators and attorneys as “overreaching in their interpretations of abortion regulations, prioritizing protecting the institution from legal liability at the expense of both physicians and patients.”Footnote 288 Doctors in Texas reported that “In multiple cases, the treating clinicians — believing, on the basis of their own or their hospital’s interpretation of the law, that they could not provide early intervention — sent patients home, only to see them return with signs of sepsis.”Footnote 289 Studies have also shown that hospital attorneys tend to be very risk-averse when counseling doctors about what information they communicate to patients, sometimes incorrectly advising doctors that they cannot even tell patients that abortion is a viable treatment that is available out of state.Footnote 290
A final important consideration in assessing institutional procedures for managing obstetric emergencies is whether treating physicians are bound by the recommendations of institutional reviewers, or whether they maintain clinical discretion. For example, outside the context of abortion, ethics committees are merely advisory, providing guidance that treating physicians can consider but are not obligated to follow.Footnote 291 But some reports of committee involvement in emergency abortion decisions seem to suggest that their decisions are binding, and that physicians are required to comply with institutional directives about a patient’s care, losing the freedom to make independent judgments about how best to manage a patient’s medical needs. This can lead not only to physical and emotional harms to patients,Footnote 292 but also moral distress for clinicians,Footnote 293 who perceive themselves as being complicit in a system that does not prioritize patient interests.Footnote 294
b. Legal Risk
These models all purport to provide some degree of institutional support for physician decision-making, but do they in fact reduce physicians’ legal risk?
Some physicians perceive that institutional review of emergency abortion decisions is likely to be beneficial in the event of prosecution, particularly when attorneys are involved in the review process.Footnote 295 Physicians in abortion ban states particularly value “concrete clinical guidance” as being “helpful for determining how to provide and document necessary abortion care in a legally defensible way.”Footnote 296 Indeed, it is for this reason that some have called for greater attorney involvement in decisions about emergency treatment in abortion-restrictive states. Dr. Osmundson, who leads the VUMC Committee, has “come to believe it’s time to take abortion decisions out of doctors’ hands and shift the final say to hospital lawyers and administrators.”Footnote 297 She views this as “the only way to protect the independent judgment of medical experts.Footnote 298
Other physicians, however, feel far less comfortable with institutional involvement, especially given the fact that the hospitals within which they practice freely admit that they cannot protect them from criminal prosecution.Footnote 299 One physician who practices at VUMC expressed appreciation for the support of a hospital review committee, but said in an interview, “When push comes to shove, if I ever got trudged through a court case, how many people will truly have my back?”Footnote 300 A maternal fetal medicine specialist in a southeastern state described their struggle in treating a pregnant patient with a significant risk of heart failure, where they were advised by “a legal team telling me they could not, for sure, say I wasn’t going to jail.”Footnote 301
Physicians recognize that they, not the hospital at which they practice, bear primary responsibility in the event of criminal prosecution.Footnote 302 Arguably, mandatory institutional procedures put physicians at greater legal risk than if they maintained the freedom to make independent clinical judgments. If physicians are required to comply with institutional policies that conflict with their medical judgment, but have no guarantee of defense from their institutions, they must bear the legal consequences of policies they had no role in developing. And physicians are at even greater risk of criminal liability if they choose to provide emergency abortions that they believe in good faith are necessary, but act against the advice of hospital counsel or an institutional committee.
V. Conclusion
For some patients experiencing obstetric emergencies, termination of pregnancy is the safest option for reducing the risk of disability and death. But in states with restrictive abortion laws, physicians may be hesitant to provide standard of care treatment. Many considerations factor into their final decisions — uncertainty about the scope of emergency exceptions; public threats by aggressive prosecutors; substantial criminal penalties; and recognition of the fact that if they are prosecuted, neither their malpractice insurers nor the hospitals at which they practice will likely defend them. This untenable situation has resulted in widely documented harms to pregnant patients, some of whom have died because necessary medical interventions were delayed or denied.
When the threat of criminal prosecution hangs over their heads, it is unrealistic to expect physicians to act single-mindedly in their patients’ best medical interests.Footnote 303 Hospitals, however, may be able to provide physicians with the institutional support they need to feel confident making treatment decisions in patients’ best interests while being insulated from legal risk to the maximum extent possible.Footnote 304
What would such robust institutional support look like?
First, to best protect patient safety and ensure standard of care treatment, hospital policies must ensure that health care professionals have exclusive discretion to make treatment decisions based on their medical judgment. While input from non-clinician institutional stakeholders (like hospital attorneys, as described below) can be helpful, it should not override the treating physician’s clinical judgment, because only the clinician holds a true fiduciary duty to the patient. Hospital policies should empower, not hinder, physicians in providing evidence-based care.Footnote 305 In an ideal model, the hospital medical staff would adopt evidence-based practice guidelines for obstetric emergencies that could streamline physician decision-making and ensure standard of care treatment. Indiana University Health has done exactly this, charging a team of over thirty health care providers to develop clinical decision-making pathways for managing obstetric emergencies where abortion is an option for treatment.Footnote 306 Vanderbilt University Medical Center’s abortion committee, likewise, has developed “critical protocols” for conditions like PPROM, which operate as “a blanket policy” for some circumstances in which emergency abortion is permissible.Footnote 307 Ideally, hospitals throughout a state could collaborate in developing these clinical guidelines, which would lend further support to individual physicians if their decisions are challenged.Footnote 308 A second-best model would be an institutional policy requiring a second physician to review and concur with a treating physician’s decision to provide abortion; this model already appears to be fairly common at some institutions.Footnote 309 While a clinical review process would likely result in some delays, it would keep decision-making in the hands of clinicians and provide treating physicians with additional support in the event of prosecution.
Next, hospital attorneys need to be willing to adopt creative strategies for risk reduction that empower physicians to act in accordance with their clinical judgment. At present, the norm in many obstetric emergencies seems to involve hospital attorneys offering extremely conservative interpretations of state law that can result in patient harm.Footnote 310 This risk-averse attitude, however, stands in in stark contrast to the approaches attorneys use when representing health care institutions in achieving strategic or financial goals.Footnote 311 Any lawyer who has ever represented a hospital in a corporate transaction knows that their responsibility is to provide the client a generous, but reasonable, interpretation of antitrust law, Stark law, anti-kickback law, and any other legal or regulatory roadblocks; and then, to develop creative strategies for achieving the client’s vision in compliance with these laws. Hospital counsel advising on patient care issues must take a similar approach — empowering, rather than impeding, health care providers in achieving the institutional goal of high-quality patient care.Footnote 312
The foundation of such an approach would require hospital counsel available twenty-four-seven to provide clear legal guidance that supports doctors in practicing to the limits of state law.Footnote 313 Generous and creative analyses of the law would be routine when questions about patient care arise. Unfortunately, research suggests that few, if any, hospitals have proactively developed such guidance.Footnote 314 And in hospitals that do affirmatively advise physicians on their responsibilities under state law, some offer incorrect guidance that directly conflicts with both legislative text and state court precedent. Footnote 315 Unambiguous, accurate, and easily available legal guidance is essential to protect patients from injury and physicians from legal risk. While some hospital counsel may feel they do not have the expertise to offer such guidance on their own, they should take advantage of outside resources to educate themselves and their clinical staff. For example, Lawyers for Good Government has partnered with the American College of Obstetricians and Gynecologists to “mobiliz[e] attorneys . . . to provide legal guidance to front-line reproductive health care providers,” and offers such direct support.Footnote 316
Hospital attorneys should also advise physicians about how to most effectively document treatment decisions to ensure compliance with state law, as was done at Parkland Memorial Hospital in Texas.Footnote 317 There, after researchers found that serious health complications were higher for patients who were monitored without treatment compared to those whose pregnancies were immediately terminated, hospital attorneys “helped develop language that doctors could include in medical charts to explain why they terminated a pregnancy” and implemented a new protocol requiring doctors to attach the study to the charts of pregnant patients in need of emergency pregnancy termination “as proof of the risk of serious bodily harm.”Footnote 318
In particularly challenging cases, hospital counsel might even choose to document emergency abortion decisions with supporting legal analyses that could be used in defense of any potential prosecution. While this would require waiving attorney-client privilege, creative strategies like these may be necessary given the unique challenges abortion bans pose.
Finally, hospitals would guarantee legal representation, defense costs, and/or indemnification for physicians who are prosecuted for making good faith medical judgments about emergency abortion.Footnote 319 At present, this appears to be fairly uncommon.Footnote 320 As a result, some physicians may be operating under binding institutional directives, but without any guarantee that their institutions will defend them if they are prosecuted. This contributes to physicians’ reluctance to provide clinically appropriate emergency treatment that risks violating a narrow interpretation of the state’s emergency exception.Footnote 321 Notably, even the rare hospitals that purport to protect doctors in this manner offer coverage that leaves significant gaps. For example, Indiana University Health reports that it is “committed to covering [criminal] defense costs provided physicians follow IU Health policies, guidelines, and standards, as well as all relevant federal and state rules and regulations in caring for their pregnant patients.”Footnote 322 However, in conditioning institutional defense on the physician’s compliance with federal and state law — which is precisely what is at issue in these grey area cases — IUH’s commitment does not effectively serve its clinicians’ actual legal needs.Footnote 323 Hospitals ought to self-insure their physicians beyond the scope of traditional malpractice insurance, guaranteeing institutional support and legal defense in the event a doctor treating an obstetric emergency is prosecuted for a good-faith medical decision but charged with violating the state abortion ban.
To best protect patients and physicians, hospitals must re-commit to their primary mission of serving patients with high-quality medical care — even when state abortion bans risk pregnant patients’ health and safety.Footnote 324 The best strategy for achieving this goal is dedicating substantial institutional resources to supporting medical providers who deliver evidence-based treatment in the face of unrelenting legal and political pressures.
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