Pregnancy’s Risks and the Health Exception in Abortion Jurisprudence

PREGNANCY’S RISKS AND THE HEALTH EXCEPTION IN

ABORTION JURISPRUDENCE

ELYSSA SPITZER*

ABSTRACT

Current abortion jurisprudence provides logically suff‌icient grounds for uni-

versal access.

Under the health exception, abortion-regulating legislation must explicitly

permit abortion access when a pregnancy threatens a pregnant person’s health.

This article argues that, given the universal risks of pregnancy and birth, the

reasoning of the health exception supports abortion access for all pregnancies,

pre-and post-viability.

Though the Court has presumed risks in pregnancy to be rarities, contempo-

rary medical research into pregnancy and birth make clear how sweepingly

common, unpredictable, severe, and multiple health risks remain. Since 1999,

maternal mortality and morbidity rates – both persistently worse for people of

color – have been increasing. Combing the legal standard and medical

research, this article demonstrates that according to the logic of the health

exception, abortion should be permitted in all circumstances, as each preg-

nancy and birth poses a threat to the pregnant person’s health.

This logical consequence has implications for abortion access. If the health

exception were given the effect this article argues both jurisprudence and medi-

cal research mandate, abortion should be available whenever sought, viability-

def‌ining legislation notwithstanding.

INTRODUCTION .............................................. 128

I. THE HEALTH EXCEPTION: DOCTRINE .......................... 130

A. JURISPRUDENCE ESTABLISHING, AND REAFFIRMING, THE HEALTH

EXCEPTION ........................................ 130

1. Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . 130

2. Doe v. Bolton, 410 U.S. 179 (1973) . . . . . . . . . . . . . . . . . 131

3. Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . 132

4. Stenberg v. Carhart, 530 U.S. 914 (2000) . . . . . . . . . . . . . 137

5. Ayotte v. Planned Parenthood of Northern New England,

546 U.S. 320 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

* Former fellow at the Center for Reproductive Rights (CRR) and graduate of Harvard Law School. I

am deeply grateful to my former colleagues at CRR, especially Amy Myrick, Monique Baumont, Diana

Kasden, and Claire Sheehan, for their expertise and thoughtful input on this Article, and to Justice

Catalyst, for funding my year at CRR. I also thank the editors of The Georgetown Journal of Gender and

the Law. © 2021, Elyssa Spitzer.

127

6. Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . 141

B. THE HEALTH EXCEPTION’S LEGAL FOUNDATION .............. 146

II. MEDICAL RESEARCH VALIDATES THE NECESSITY OF A BROAD HEALTH

EXCEPTION ............................................ 150

A. MEDICAL HAZARDS OF PREGNANCY ....................... 152

B. MEDICAL HAZARDS OF BIRTH ........................... 156

C. MEDICAL HAZARDS POST-PARTUM........................ 162

D. RACE AND POVERTY INCREASE RISKS ...................... 164

E. INCREASING COMMONALITY OF THREATS TO HEALTH IN PREGNANCY

AND BIRTH ........................................ 167

III. LEGAL SIGNIFICANCE OF MEDICAL EVIDENCE .................... 169

CONCLUSION ............................................... 171

INTRODUCTION

Jurisprudence mandates that abortion-regulating legislation must explicitly

permit abortion access when a pregnancy threatens a pregnant person’s life or

health. As a general rule, statutes that limit access to abortion but do not specify a

“health exception” are, per se, unconstitutional.

1

This article argues that, given

the universal and inherent risks of pregnancy and birth, the health exception pro-

vides suff‌icient grounds for abortion access for all pregnancies, pre- and post-

viability.

Pregnancy and birth are fraught with health dangers and pain for the pregnant per-

son.

2

They prove lethal with frightening frequency.

3

Since 1999, maternal mortality

and morbidity rates—both persistently worse for people of color

4

—have been

increasing.

5

Through the health exception established in Roe v. Wade, the Supreme

1. Gonzales v. Carhart, 550 U.S. 124, 125 (2007). Notwithstanding, the rule held.

2. See, e.g., id. at 140 (“[I]n a cesarean section, the doctor removes the fetus by making an incision

through the abdomen and uterine wall to gain access to the uterine cavity.”).

3. See Weinberger v. Wiesenfeld, 420 U.S. 636, 639 (1975) (“Paula died in childbirth.”); Emily E.

Petersen et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States, 2007–2016, 68

MORBIDITY & MORTALITY WKLY. REP. 762 (2019), available at https://www.researchgate.net/publication/

335663086_RacialEthnic_Disparities_in_Pregnancy-Related_Deaths_-_United_States_2007-2016 (“During

2007–2016, a total of 6,765 pregnancy-related deaths occurred in the United States (PRMR = 16.7 per 100,

000 births). PRMRs were highest among black (40.8) and AI/AN (29.7) women; these rates were 3.2 and 2.3

times the PRMR for white women (12.7). From 2007–change signif‌icantly over time.”).

4. Id.; see also GOPAL K. SINGH, DEP’T OF HEALTH AND HUM. SERV., HEALTH RES. AND SERV.

ADMIN., MATERNAL AND CHILD HEALTH BUREAU, MATERNAL MORTALITY IN THE UNITED STATES,

1935-2007: SUBSTANTIAL RACIAL/ETHNIC, SOCIOECONOMIC, AND GEOGRAPHIC DISPARITIES PERSIST

(2010) (“The risk of maternal mortality remained 3 to 4 times higher among black women than white

women during the past 6 decades.”); cf. Marian F. MacDorman et al., Is the United States Maternal

Mortality Rate Increasing? Disentangling trends from Measurement Issues, 128 OBSTET. GYNECOL. 447

(2016) (suggesting that U.S. mortality rates are even higher).

5. Holly B. Shulman et al., The Pregnancy Risk Assessment Monitoring System (PRAMS): Overview of

Design and Methodology, 108 AM. J. PUB. HEALTH 1305 (2018), available at https://www.cdc.gov/

prams/pdf/methodology/PRAMS-Design-Methodology-508.pdf; American College of Obstetricians and

128 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:127

Court has tacitly acknowledged these risks. It recognized that a pregnant person’s

health may be at odds with fetal life, and it established that the pregnant person’s in-

terest in their own health trumps, regardless of fetal viability.

6

The health exception

may be understood as the doctrinal assertion that a person’s wellbeing matters de-

spite their reproductive capacity; it prioritizes a pregnant person’s health over the fe-

tus in gestation. In short, the health exception is a doctrinal escape hatch from

abortion limitations when pregnancy threatens health.

Yet, the health exception’s logical heft and the protection for pregnant

people that it should provide through the full course of pregnancy have been

underutilized and given short shrift, despite both legal doctrine and medical

realities making it essential and widely applicable. Though the Court’s pre-

sumption has been that these risks threatening pregnant people are rarities,

a medical understanding of pregnancy establishes that the risks are sweep-

ingly common.

7

Contemporary medical f‌indings about pregnancy make

clear how frequent, unpredictable, severe, and numerous the risks of preg-

nancy remain.

8

Moreover, the physiological byproducts of pregnancy and

the act of giving birth itself can present hazards to health.

9

The full ramif‌i-

cations and doctrinal implications of these risks must be acknowledged in

the context of abortion access.

This article has three parts. Part I tracks the health exception through abortion

jurisprudence, establishing that it has consistently offered broad protections to

pregnant people. Part II examines recent medical research into pregnancy and

birth, and f‌inds that every pregnancy presents risks to health. Part III combines

the legal standard and medical research to demonstrate that under the logic of the

health exception, abortion should be permitted in all circumstances, as each

pregnancy—up to and including birth itself—poses a threat to a pregnant

person’s health.

Gynecologists, Severe Maternal Morbidity: Screening and Review, 5 OBSTETRIC CARE CONSENSUS

(Sept. 2016), https://www.acog.org/clinical/clinical-guidance/obstetric-care-consensus/articles/2016/

09/severe-maternal-morbidity-screening-and-review (“Like maternal mortality, severe maternal

morbidity is increasing in the United States.”); William N. Callaghan et al., Severe Maternal

Morbidity among Delivery and Postpartum Hospitalizations in the United States, 120 OBSTET.

GYNECOL. 1029 (2012); see also CENTERS FOR DISEASE CONTROL AND PREVENTION,

SEVERE MATERNAL MORBIDITY IN THE UNITED STATES, http://www.cdc.gov/reproductivehealth/

maternalinfanthealth/severematernalmorbidity.html; Petersen, supra note 3; Donna L. Hoyert, &

Arialdi M. Mini~

no, Maternal Mortality in the United States: Changes in Coding, Publication, and

Data Release, 2018, 69 NAT’L VITAL STAT. REPORTS, 2 (2020).

6. See Roe v. Wade, 410 U.S. 113, 164 (1973).

7. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850–51 (1992) (“The underlying

constitutional issue is whether the State can resolve these philosophic questions in such a def‌initive way

that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the

pregnancy is itself a danger to her own life or health, or is the result of rape or incest.”).

8. See infra Section II.A.

9. See infra Section II.B.

2021] PREGNANCY’S RISKS IN ABORTION JURISPRUDENCE 129