Doctors fear criminal charges in states with abortion bans

Abortion bans are intended to reduce elective abortions, but they also affect the way doctors practice medicine.

This is the key finding from our recently published article in the journal Social Science & Medicine.

Medical providers operating in states affected by the Supreme Court’s Dobbs v. Jackson Women’s Health, which implemented abortion bans in 2022, are forced to balance the needs of their pregnant patients against the risk that providers could be prosecuted for treating those patients. This dilemma has serious and far-reaching consequences.

We surveyed 22 medical providers working in reproductive health across Tennessee in the six months following the implementation of the state’s full abortion ban in 2022.

Providers spoke to our team about the need to protect themselves from criminal liability and told us they were becoming increasingly hesitant to provide the care their patients needed.

Why it matters

A 2024 ProPublica investigation found that at least two women in Georgia died because they were denied medical care due to the implementation of these abortion bans. Almost all of our interviewees expressed their fear of such deaths.

Providers told us that patients often believe these bans include exceptions when the pregnant person’s health is at risk, but that is not always true in practice.

Tennessee’s abortion ban provides an “exception for situations in which the abortion is necessary to prevent the death of a pregnant woman or to avert the serious risk of significant and irreversible impairment of major bodily functions.”

The problem is that such cases are rarely clear-cut. And for healthcare providers, the stakes are very high. In certain states, including Tennessee, if it is found that they had an abortion without imminent danger to the mother’s life or health, they could face criminal charges that could result in several years in prison.

In interviews, providers described many cases in which an abortion is medically necessary for the pregnant person. Take, for example, cases of premature rupture of membranes, a condition in which a pregnant person’s water ruptures before 37 weeks of pregnancy. Serious complications can occur after a premature rupture of the membranes, especially in cases where labor does not begin.

The standard treatment for this condition is to induce labor to prevent such potential medical complications. However, if it is an early pregnancy and the fetus would likely not survive outside the uterus, this treatment is now discouraged as the law does not sufficiently clarify what interventions are permitted to protect the pregnant person.

In many cases, the physical harm suffered by the pregnant person correlates with the level of legal protection a medical provider receives.

Although physicians are trained to follow health care best practices, fear of allegations of medical malpractice leads to the widely documented practice of defensive medicine, i.e.

Abortion bans greatly exacerbate this dynamic because they often come with the threat of criminal prosecution, which is not covered by malpractice insurance. This exposes providers to a new form of risk that impacts the way providers interact with patients and deliver care.

Our team calls this new form of defensive medicine “hesitant medicine.” Providers are forced to put their own legal protections ahead of their patients’ well-being and are therefore reluctant to provide the treatment patients need. The reluctance is compounded by prohibitions that make it unclear when a provider can intervene in the event of a pregnancy complication.

What’s next?

It will be years before researchers have data that shows a complete picture of how abortion bans affect women’s reproductive health. However, our interviews show that these bans are already influencing the way providers treat pregnant women.

The majority of our respondents had considered moving to a state without an abortion ban to practice medicine and be far less stressed about the threat of criminal prosecution, a trend that is already being observed. Over time, this exodus of providers could exacerbate the health care desert problem in the United States.

To mitigate some of this harm, more effort is needed by medical groups, employers and legislators to clarify or revise Tennessee’s Human Life Protection Act to better protect women’s health.

Sophie Bjork-James receives funding from the National Science Foundation.

Anna-Grace Lilly and Isabelle Perry Newman do not work for, advise, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic employment.

/Courtesy of The Conversation. This material from the original organization(s) may be point-in-time material and may be edited for clarity, style and length. Mirage.News does not represent any institutional position or party and all views, positions and conclusions expressed herein are solely those of the authors.