Rekubit Exchange:'Very clear' or 'narrow and confusing'? Abortion lawsuits highlight confusion over emergency exceptions

A North Dakota judge's recent decision to deny a request blocking part of the state's restrictive abortion law highlights an issue abortion-rights advocates say is Rekubit Exchangeimpacting doctors nationwide: The exceptions in strict abortion laws can be vague, causing medical providers to question when they can perform an abortion in a medical emergency.

A lawsuit in North Dakota is one of several recently filed by advocates seeking to clarify and expand the circumstances under which doctors can provide abortions during medical emergencies in states with strict abortion bans. Mary Ziegler, a professor of law at University of California, Davis, said the emergency exceptions written into these laws can be confusing for physicians and, given their high penalties, can lead doctors to "err on the side of protecting themselves and not providing care to patients."

"We know generally that the effects of these bans not only is to discourage doctors from performing abortions that wouldn't be covered by the exceptions, but often to discourage doctors from invoking the exceptions at all," said Ziegler, an expert on the legal history of reproductive rights. "So I think that's most likely what we're going to see, that there'll be a deterrent effect on doctors even when they'd be justified in using the exceptions under the laws."

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What's happening in North Dakota?

In April, North Dakota Gov. Doug Burgum signed legislation banning abortion except during the first six weeks of pregnancy in cases of rape or incest and in some medical emergencies throughout all stages of pregnancy. People who perform an abortion can face a felony charge under the new law.

The Center for Reproductive Rights filed a lawsuit in June challenging the new law, which center attorney Meetra Mehdizadeh said is "putting physicians in an impossible situation."

"If a patient is diagnosed with a health complication that puts their health at risk, under the very narrow and confusing health exception at the moment, physicians don't feel like they can provide care until the patient's health has actually started to decline and until the patient is experiencing complications like a fever or some kind of organ damage or something that really shows that they are getting very sick," Mehdizadeh said.

Attorneys for the plaintiffs requested a preliminary injunction to stop the state from enforcing the law against doctors who use their "good-faith medical judgement" to preserve a pregnant person's life or health. State District Judge Bruce Romanick denied that request.

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Abortion bans are 'chilling care across the country,' advocates say

Mehdizadeh said North Dakota is not the only state where medical emergency exceptions have caused confusion. Fourteen states have total abortion bans, most of which have exceptions regarding the life and physical health of the pregnant person, according to the Guttmacher Institute.

But despite the exceptions, Mehdizadeh said pregnant people with dangerous complications are still being denied emergency abortion care across the country.

"Abortion bans have caused a nationwide public health crisis," Mehdizadeh said. "These bans are putting real lives at risk. If nothing is done and these laws continue to remain in effect, pregnant people will die."

Molly Meegan, chief legal officer of the American College of Obstetricians and Gynecologists said she expects the laws will also eventually lead to cases in which doctors face criminal prosecution or civil litigation for providing emergency abortion care.

"And I think that whether or not we've seen it yet, you can be absolutely certain that it is chilling care across the country," Meegan said.

To address the issue, the Center for Reproductive Rights, a legal advocacy organization, filed lawsuits in Idaho, Texas and Tennessee, last year seeking to clarify and expand the emergency exceptions.

The Biden administration also issued guidance in July 2022 that federal law known as the Emergency Medical Treatment and Labor Act requires hospitals to provide "stabilizing care," including abortions if necessary, regardless of state bans, leading to lawsuits in Texas and Idaho. But earlier this month, a federal appeals court panel ruled Texas hospitals are not required to perform emergency abortions and the U.S. Supreme Court allowed Idaho to enforce its abortion ban in emergency rooms.

Though both the cases involving federal and state law are related to medical emergencies, the legal questions involved are distinct, Meegan said.

"What's at stake in the Texas and Idaho EMTALA litigation is slightly different. The question is does federal law preempt state law that might conflict?" she said. "And in these other cases, like the North Dakota case, it's a question of whether the North Dakota constitution permits the patient to obtain treatment when they're facing an emergency."

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Opponents say law is 'very clear for physicians'

Republican state Sen. Janne Myrdal, who sponsored a 2023 bill revising North Dakota's abortion laws, welcomed the judge’s ruling, the Associated Press reported.

“I think we have something that’s very clear for physicians to see,” she said. “I think it’s common sense what we put in as far as the health exceptions, and it goes with the intent of the legislators, so I applaud this judge for reading into it and realizing that the authority lies with us, as far as writing the law, and interpreting it simply shouldn’t be that hard for the physicians.”

Dr. Christina Francis, CEO of the anti-abortion group the American Association of Pro-Life Obstetricians and Gynecologists, said in an emailed statement to USA TODAY that North Dakota's abortion law and others like it already allow physicians to treat serious pregnancy complications.

"It is crucial that physicians receive clear guidance so they understand that they can still act quickly in situations where a woman may be facing a life-threatening complication of her pregnancy - something any competent physician is more than qualified to identify," she said.

What's next in the North Dakota case?

The case is scheduled to go to trial over the course of five days in August, according to Mehdizadeh. Ziegler said the court's recent ruling is a sign that it's going to uphold the North Dakota law once the litigation is all said and done.

Mehdizadeh, however, said while the ruling is disappointing, it was limited and did not address the question at the heart of the case.

"We're still confident that after the court hears further evidence of how this law has impacted patients and providers, the court will find that the law is unconstitutional," Mehdizadeh said.

Contributing: Bayliss Wagner, Austin American-Statesman; John Fritze, USA TODAY; The Associated Press