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Mental Health Matters: A Look At Abortion Law Post-Dobbs

Published online by Cambridge University Press:  12 February 2024

Kristin Telford  and
Lauren B. Solberg
Kristin Telford
Affiliation:
University of Florida College of Medicine, Gainesville, FL, USA
Lauren B. Solberg*
Affiliation:
University of Florida College of Medicine, Gainesville, FL, USA
*
Corresponding author: Lauren B. Solberg; Email: lsolberg@ufl.edu
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Abstract

In June 2022, in Dobbs v. Jackson Women’s Health, the U.S. Supreme Court overturned the precedent set by the 1973 decision in Roe vs. Wade, leaving access to abortion to be regulated by each state, rather than a U.S. constitutional right. Some states are setting gestational age limits, beyond which point only under certain circumstances can an abortion be obtained. Other states are banning abortion outright (regardless of gestational age) unless an “exception” is met. Certain states include an exception for abortion when a woman’s physical health is at risk if they continue the pregnancy, but, at the same time, do not provide an exception for women whose mental health is at risk (a “mental health exception”).

Mental health conditions that develop, continue, or are exacerbated during pregnancy may be manageable or treatable, and women may want to continue their pregnancy even while experiencing such conditions. However, the absence of a choice to terminate their pregnancy as a result of these mental health conditions means women who are unable to successfully manage or treat their mental health during pregnancy have no choice but to experience the impact on their mental health – and reconcile any resulting impact on the fetus.

This article will discuss the role a mental health exception plays in state abortion statutes by analyzing the impact of pregnancy on mental health and resources available to support those who experience mental health impacts during pregnancy while, simultaneously, advocating for the inclusion of a mental health exception in state abortion laws.

Keywords

abortionbioethicslegislationmental health

Information

Type
Articles
Information
American Journal of Law & Medicine , Volume 49 , Issue 2-3 , July 2023 , pp. 374 - 385
Copyright
© 2024 The Author(s)

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References

1 MS Code § 41-41-191 (2022).

2 597 U.S. [ ] (2022).

3 410 U.S. 113 (1973).

4 Supra note 2.

5 Id.

6 See e.g., Colorado which allows abortion at any gestational age (C.R.S. 25-6-404); New York which allows abortions up to 24 weeks gestation, after which abortions are legal if the health of the pregnant person or the pregnancy is at risk (NY Pub. Health Law 2599-BB); Mississippi which bans abortion after 15 weeks gestation except in the case of a medical emergency or severe fetal abnormality (MS Code 41-41-191).

7 Supra note 3 at 139-40.

8 Id. at 166.

9 505 U.S. 833 (1992).

10 Id. at 877.

11 579 U.S. 582 (2016).

12 June Medical Services, LLC v. Russo, 591 U.S. 1101 (2020).

13 Supra note 2.

14 Id. at 3.

15 The “rational basis” standard means “[a] law regulating abortion…is entitled to ‘a strong presumption of validity’” and “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” Id. at 77. The majority in Dobbs calls the undue burden test “unworkable” (Id. at 62) but the rational basis standard of review is the lowest standard of review for constitutional questions, as compared to an intermediate or strict scrutiny standard.

16 Supra note 3.

17 Supra note 9.

18 We expect ongoing changes to state laws governing abortion as state legislatures and citizens make decisions about what they want abortion access to look like in their states. We anticipate continued constitutional challenges to new state laws as well (see, e.g., Planned Parenthood v. SC, 2023, holding that a state law banning abortion after cardiac activity is detected is unconstitutional.)

19 MS Code 41-41-191; OK Stat. 63-1-745.5; TX Health and Safety Code 170A.001.

20 NY Pub. Health Law 2599-BB; CA HSC 123468(b)(2); CT Stat 19a-602(a); HI R.S. 453-16(c).

21 Mabel Felix et al., A Review of Exception in State Abortion Bans: Implications for the Provision of Abortion Services, KFF.org (May 18, 2023); Ala. Code 26-23H-3.

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25 Id. The study authors named these categories. See id.

26 Id. at 373.

27 Id. at 374.

28 Id. at 375.

29 Aida Torres & Jacqueline Darroch Forrest, Why Do Women Have Abortions?, 20 Fam. Planning Persp. 169 – 176, 169 (1988).

30 The inability to travel may be due to practical concerns, for example if travel is too costly, and/or would take too much time and interfere with the ability to work. The inability to travel for an abortion may also be a legal limitation. Justice Kavanaugh’s concurrence in Dobbs discusses whether a state may limit travel to another state for the purpose of seeking an abortion; he concludes that the constitutional right to travel would bar such a limitation and such travel will be permissible. Supra note 2, at 3 (Kavanaugh, concurring). The dissent articulates its concern, however, that states may prohibit women from interstate travel for the purpose of seeking an abortion. Id. at 3 (Breyer, Sotomayor, and Kagan, dissenting).

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63 Supra note 2.

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74 Id.

75 Id.

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82 Foster, supra note 23.

83 Id.

84 Id.

85 Other arguments may be posited, such as the personhood of a fetus, the need or right of the state to protect the life and health of its citizens.

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87 Id.

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90 Id.

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96 TX Health & Safety Code 170A.001.

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