A Brief History of the ‘Health Exception’

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A Brief History of the ‘Health Exception’

Vicki Saporta

Roe v. Wade gave us a federal statute to ensure abortion access after viability when a threat to the health of the pregnant woman was at stake. The federal abortion ban took it away.

Every month, thousands of women call our toll-free Hotline seeking unbiased information about abortion and referrals to providers of quality care. From talking to these callers, we know that women choose abortion care for a variety of reasons and unique circumstances. While the majority of women choose abortion care early in their pregnancies (89% of all abortions in the United States are obtained within the first 12 weeks – PDF), there are cases where a woman may need to obtain a later abortion in order to protect her life or preserve her health, including her mental health. Contrary to the speculation of some abortion opponents, a woman does not obtain a later abortion simply because she’s "having a bad day." These cases often involve severe fetal anomalies that can cause great emotional distress and be devastating to a woman’s psychological health.

Such was the case for Angie*, who was diagnosed with a fatal fetal anomaly 28 weeks into a wanted pregnancy.

Angie and her husband visited several specialists and each time were given the same prognosis: her fetus’s brain was malformed and it would die before birth or very shortly thereafter. The couple was devastated and Angie could not bear the thought of continuing her pregnancy and the mental anguish of delivering a child who had no chance of survival. She chose to obtain abortion care and has never once regretted her decision. For women like Angie, an exception that acknowledges mental health is crucial to preserving their lives and health.

Historically, the Supreme Court has recognized the importance of women’s health, and 35 years ago, established that medical judgments should encompass emotional and psychological, as well as physical health factors. In Roe v. Wade, the Court ruled that the right to privacy found in the United States Constitution included the right of women to decide whether and when to have children. The Court also indicated that a woman’s health must remain paramount and that all laws-even those concerning abortions after the first trimester-must have an exception to preserve the life or health of the woman. On the same day, in Doe v. Bolton, the Court provided guidance on a health exception stating that "medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient. All these factors may relate to health."

Roe is gone. The chaos is just beginning.

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However, last year the Supreme Court took a significant departure from previous rulings when it upheld a federal ban on certain abortion procedures that lacked an exception to protect the health of the woman in Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America.

This decision permits the government to interfere with a woman’s right to choose to terminate a pregnancy and effectively overturns a core tenet of Roe v. Wade by abandoning over 30 years of protection for women’s mental and physical health. This ruling jeopardizes the health of women like Angie and invites politicians to meddle even further into the doctor-patient relationship by passing additional restrictions on abortion.

As we continue the struggle to preserve women’s reproductive freedom, we must remain vigilant that women’s health-both physical and mental-must be protected.

* Names have been changed to protect the privacy of our callers.