Abortion Law in America Today: Pro-life Responses to Pro-abortion Challenges
This is Issue 40 of the American Reports Series.
After Roe v. Wade[1] was overturned in Dobbs v. Jackson Women’s Health Organization,[2] abortion advocates increased their efforts to impose abortion on pro-life states through heavily funded ballot initiatives,[3] the courts,[4] and interstate shipments of abortion-inducing drugs.[5] Lawsuits challenging gestation-based abortion limits[6] claim that the laws violate state constitutional rights to abortion, endanger women’s lives, and/or are unconstitutionally vague. Section I of this paper counters these arguments. Section II discusses how states are clarifying gestation-based abortion limits to reassure healthcare providers that they may continue to exercise their clinical judgment when providing care for pregnant women. The final paper in this series will address efforts to counter the onslaught of abortion-inducing drugs in pro-life states.[7]
I. Responding to Challenges to Gestation-based Abortion Limits
Every state needs a pro-life state constitutional amendment, the primary safeguard against courts that may be inclined to find abortion rights in state constitutions. Yet even in states with amendments,[8] gestation-based abortion limits remain vulnerable to constitutional challenges. Plaintiffs frequently claim that these limits pose unconstitutional risks to pregnant women and/or that the exceptions are vague and will lead to arbitrary enforcement against healthcare providers.[9] Such arguments raise alarm, given that the purpose of pro-life laws is to protect the rights of both unborn children and their mothers. Furthermore, any state supreme court that finds that an abortion-protection statute endangers women or triggers unwarranted prosecutions of physicians will strike it down. Pro-life states must provide clear guidance to physicians and hospitals on how they may protect both unborn babies and their mothers and, in rare, tragic circumstances, separate the mother and child before viability to save the mother’s life.
State gestation-based abortion limits are not written “to tie the hands of physicians caring for seriously ill women.”[10] First, the limits do not apply to any treatment a woman receives after her unborn child has already died. Healthcare providers can continue, without fear of repercussion, to perform dilation and curettage (D&C) and other procedures necessary to treat spontaneous miscarriage or complications that follow an induced abortion. Second, when gestation-based abortion limits apply, every pro-life state permits a doctor to exercise either “reasonable” or “good faith” medical judgment when making treatment decisions for patients experiencing pregnancy emergencies.[11] This is true even when a treatment leads to a tragic but necessary separation of a mother and her baby before viability.[12]
Yet, in states with gestation-based abortion limits, at least four women have died when healthcare providers delayed the treatment they needed.[13] Another woman died after failing to seek needed care,[14] apparently out of fear of prosecution for a drug-induced abortion.[15] ProPublica journalists, who reported on these tragic stories, argued, “[w]ithout clarification from legislators and prosecutors on how to handle the real-life nuances that have emerged in hospitals across America, doctors in [states with gestation-based abortion limits] say they are unable to provide care to high-risk pregnant patients that meets medical standards.”[16]
However, these “nuances” in hospitals are not new. Pregnancy-related emergencies are inherently complex because they involve two patients. Further, most mothers facing these circumstances desperately want to save their babies. In the rare cases where both lives cannot be preserved, states with gestation-based abortion limits continue to “entrust[] physicians with the profound weight of the recommendation to end the life of a child to preserve the life of the mother, a decision made in light of the specific circumstances of the mother and the pregnancy.”[17]
Fears that the medical emergency exceptions in gestation-based abortion limits are vague and will therefore lead to arbitrary enforcement against doctors are likewise unfounded. Many of the pro-life states that protect unborn children from birth have reported abortions in 2024 and/or 2025. No prosecutions of physicians for performing these abortions have been reported.[18]
In 2024, three abortions were reported as performed in Alabama, and the state listed the specific medical indications for two of them.[19] Two abortions were performed in 2024 in brick-and-mortar clinics in Idaho, but the state does not list reasons for abortions.[20] In Indiana, 93 abortions were performed in 2024 for “lethal fetal anomaly,” 40 for “serious health risk/life of the pregnant woman,” and nine for “rape/incest,” for a total of 142 abortions.[21] In the first three quarters of 2025, 74 abortions were performed in Indiana for these reasons.[22] In Kentucky, 9 abortions were reported in 2024, with medical indications listed.[23] In Oklahoma, one abortion was performed in 2024 because the “[m]other suffered from a medical emergency.”[24] In Texas, 76 abortions were performed in 2024 “to preserve health of the woman” or for “both emergency and health,” and 96 abortions were performed for these reasons in January-October 2025.[25] Twenty-six abortions were reported in 2024 in West Virginia, and 17 were reported in the first three quarters of 2025. Reasons were not reported.[26]
Because women can legally receive the treatment they need and doctors are not being prosecuted for providing it,[27] recent preventable deaths of women suffering miscarriages or complications from drug-induced abortions can best be blamed on misinformation, fear, and malpractice. The first patient profiled in the ProPublica articles, Amber Nicole Thurman, died from delayed treatment for an infection following a drug-induced abortion she started in North Carolina and attempted to complete at her home in Georgia.[28] Candi Miller died after she did not seek care for complications following her use of abortion drugs at home.[29] ProPublica incorrectly states that Georgia made the dilation and curettage (D&C) procedure, which both Ms. Thurman and Ms. Miller likely needed, a felony “with few exceptions.”[30] In truth, performing a D&C to remove a dead unborn child or fetal remains is not illegal in any state. In Georgia, abortion is defined as “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child.”[31] Ms. Miller and Ms. Thurman’s unborn children had already died. Therefore, Georgia’s gestational abortion limit did not apply to the emergency treatment that Ms. Thurman sought, and it would not have applied to emergency treatment for Ms. Miller. Tragically, it will be challenging for women like Ms. Miller, whose “family later told a coroner she hadn’t visited a doctor ‘due to the current legislation on pregnancies and abortions,’”[32] to confidently seek care if journalists continue to write that the D&C is illegal in most cases.
It is also difficult for physicians and hospitals to provide confident care for pregnant women in medical emergencies when they receive little or incorrect guidance from within the profession. In 2024, Dr. Ingrid Skop, an obstetrician/gynecologist practicing in Texas, and I wrote an article responding to misleading statements about medical emergency exceptions to gestation-based abortion limits that were published in Obstetrics & Gynecology. Dr. Steven Cherry claimed that “[p]regnant patients in Texas and Idaho must wait for their condition to deteriorate substantially before they can legally receive a medically indicated abortion.”[33] Dr. Skop and I explained, as discussed more below, that “[t]his statement is legally insupportable and endangers seriously ill pregnant women whose doctors may fear prosecution based on Dr. Cherry’s irresponsible statements.” [34]
In response to challenges to gestation-based abortion limits, the state supreme courts in Idaho and Texas carefully considered the sufficiency of the laws’ medical emergency exceptions and upheld their states’ limits. Idaho prohibits abortion throughout pregnancy unless “[t]he physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman” or, in the first trimester, if the pregnancy resulted from rape or incest.[35] The Idaho Supreme Court has clarified that a risk of imminent death is not required for the life exception to apply:
The plain language … leaves wide room for the physician’s “good faith medical judgment” on whether the abortion was “necessary to prevent the death of the pregnant woman” based on those facts known to the physician at that time. This is clearly a subjective standard, focusing on the particular physician’s judgment. … the statute does not require objective certainty, or a particular level of immediacy, before the abortion can be “necessary” to save the woman’s life. Instead, the statute uses broad language to allow for the “clinical judgment that physicians are routinely called upon to make for proper treatment of their patients.”[36]
A lower state court has since further clarified the life exception:
… Idaho’s Abortion Laws don’t make it a crime to perform an “abortion” … if, in the performing physician’s good faith medical judgment (based on the facts known to the physician at the time of the abortion), the patient—because of an existing medical condition or pregnancy complication that would be alleviated by an abortion—faces a non-negligible risk of dying sooner without an abortion (even if her death is neither imminent nor assured), so long as (i) the risk of her death doesn’t arise from a risk of self-harm, and (ii) the manner of pregnancy termination is the one that, without risk [sic] increasing the risk of her death, best facilitates the unborn child’s survival outside the uterus, if feasible.[37]
The Texas law limiting abortion includes an exception for when a licensed physician, “in the exercise of reasonable medical judgment,” determines that abortion is necessary because the mother “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”[38] In State v. Zurawski, the Supreme Court of Texas upheld the state’s gestational abortion limit because it “permits a life-saving abortion.”[39] The court stated:
“[A] life-threatening physical condition” is not necessarily one actively injuring the patient; it is a condition that has the potential to kill the patient. The condition must arise from or be aggravated by the pregnancy, but death need not be imminent … The law does not require the life-threatening physical condition to have already caused damage before a physician can act to preserve the mother’s life or major bodily function.[40]
Further, the court explained that the “reasonable medical judgment” standard protects physicians who can “turn to peer-reviewed best practices associated with a patient’s particular diagnosis and treatment.”[41] While a “doctor may not disregard the requirement that the mother must have a life-threatening physical condition or that the condition must place the mother at risk of death or serious risk of substantial impairment of a major bodily function unless an abortion is performed,” the objective “reasonable medical judgment” standard shields physicians from “scrutiny” of their “views about abortion and its availability.”[42]
II. Guidance from Administrators, Legislators, and Professional Organizations
Although decisions from the supreme courts in Idaho and Texas are helpful, it is risky for states to rely on courts to interpret the breadth of the medical emergency exceptions to gestation-based abortion limits. More is needed to counter the proliferation of deceptive and/or misinformed claims that lead to tragedies in hospitals and litigation in courts. Lawmakers and leaders in the medical profession must inform doctors and hospitals that they are both legally permitted and required to continue using evidence-based medicine and the standard of care in treating women suffering from miscarriages, threatened miscarriages, and ectopic pregnancies. Further, when a pregnancy endangers a pregnant patient’s life, the doctor may use reasonable or good faith medical judgment to determine the necessary treatment.
To ensure that all physicians in states with gestation-based abortion limits understand when abortion is and is not permissible, at least nine states with these laws have taken administrative and/or legislative action to clarify their gestation-based abortion limits and exceptions.
i. Administrative Actions
Florida, Oklahoma, Texas, Kentucky, and Nebraska have issued administrative guidance, either preemptively or in response to confusion, regarding when a physician may provide life-saving care to pregnant women.
Florida
In 2024, Florida’s Agency for Health Care Administration issued an emergency rule directing hospitals to “maintain written policies and procedures governing the maintenance of medical records for the treatment of premature rupture of membranes, ectopic pregnancies, trophoblastic tumors, and other life-threatening conditions,” with annual reviews. The policies and procedures must, at a minimum, clarify for physicians that when an unborn baby does not survive labor induced to treat premature rupture of the membranes, “the incident does not constitute an abortion.” Likewise, the treatment of ectopic pregnancy or trophoblastic tumors is not an abortion. Further, when a patient receives a diagnosis of premature rupture of the membranes, she must “be admitted for observation unless the treating physician determines that another course of action is more medically appropriate under the circumstances to ensure the health of the mother and unborn baby.”[43]
The “Notice of Emergency Rule” stated that the new rule was necessary because “there is an immediate danger to the health, safety, and welfare of pregnant women and babies due to a deeply dishonest scare campaign and disinformation being perpetuated by the media, the Biden Administration, and advocacy groups.”[44] Florida’s Agency for Health Care Administration also published a “Myth vs. Fact” sheet affirming that lifesaving care is available during pregnancy-related emergencies.[45]
Oklahoma
In 2023, Oklahoma’s attorney general issued a memorandum stating that “Oklahoma abortion prohibitions” do not “apply to unintentional miscarriages and miscarriage management (such as the removal of a deceased child or the medical requirement for a Dilation and Curettage procedure), ectopic pregnancies and treatments, in vitro fertilization (IVF) and other fertility treatments, or uses or prescription of contraception, including Plan B.” Regarding the life-of-the-mother exception, the attorney general wrote that it “should be interpreted to ensure that it is not used by bad faith actors or clinics as a cover for abortion-on-demand. Further, there is no requirement that the woman be septic, bleeding profusely, or otherwise close to death; rather, if the physician reasonably deems that the continued pregnancy will jeopardize the woman’s life, this is sufficient to trigger the exception.”[46] In other words, the provider’s intent is key—the physician’s intent must be to protect the life of the mother, not to perform a medically unnecessary abortion.
In 2025, the attorney general reiterated these points in another guidance memorandum, emphasizing that “physicians are entrusted with broad professional discretion to intervene when medically necessary to save a woman’s life, before the patient is in a serious, medically compromised situation.” However, “the physician should strive to protect the mother and the child, if possible.”[47]
Texas
In 2024, the Texas Medical Board unanimously approved guidance on the medical emergency exception to Texas’s gestational abortion limit. The rules first noted the pertinent definitions in Texas law that apply to the gestational abortion limit, including the definition of “abortion,” which excludes miscarriage care and the removal of an ectopic pregnancy. The rules also defined “reasonable medical judgment,” “medical emergency,” (i.e., “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed”), and “major bodily function” (i.e., “includes but is not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”). The rules require physicians to document in a patient’s medical record the circumstances surrounding any abortion performed under the medical emergency exception.[48]
Kentucky
In 2022, the attorney general of Kentucky issued an advisory clarifying that under the state’s gestational abortion limit, “a licensed physician can knowingly perform an abortion to prevent a pregnant mother’s death, substantial risk of death due to a physical condition, or a serious, permanent impairment to a life-sustaining organ.” The advisory also states that: “The Human Life Protection Act has no application when a pregnant mother suffers a miscarriage. Nor does it prohibit medical treatment to help a mother in this circumstance.”[49]
Nebraska
In 2023, the Nebraska Department of Health and Human Services issued two letters to healthcare providers regarding the state’s 12-week gestational abortion limit—one before the law took effect and one after. In the first, the department noted that “it will be critically important that hospital systems and other health care institutions that care for pregnant women also provide guidance to support physicians when making decisions regarding the care of pregnant women.” The letter states that: “Nowhere in [the bill] is a requirement that the medical emergency be immediate. … At the time of diagnosis of a potentially life-threatening pregnancy complication, physicians should exercise their best clinical judgment, and be reassured that the law allows intervention consistent with prevailing national standards of care. … It is necessary only that a reasonably prudent physician could have made the same judgment that a medical emergency existed in that case.” The letter also notes that hospital systems should be encouraged to “create advance guidance for their physicians in consultation with their legal department.”[50] The second letter, issued to physicians and surgeons, notified them that Nebraska’s 12-week gestational abortion limit was in effect. The letter summarized the law, stating that abortion may be “performed or induced due to a medical emergency.”[51]
ii. Legislative Actions
Lawmakers in South Dakota, Kentucky, Arkansas, North Dakota, Tennessee, and Texas have enacted laws to clarify the medical emergency exceptions to their states’ gestation-based abortion limits, and four of these states also direct administrative agencies to promulgate additional guidance for healthcare professionals.
South Dakota
In 2024, South Dakota enacted the first Medical Education, or “Med Ed,” law, with bipartisan support, to help physicians and hospitals understand how to comply with the state’s gestation-based abortion limit.[52] Under the law, the state Department of Health collaborated with the Attorney General’s office, the American Association of Pro-Life Obstetricians and Gynecologists, and several South Dakota obstetricians and gynecologists to create an informational video and materials to guide doctors in treating pregnant women facing medical emergencies.[53] South Dakota Secretary of Health Melissa Magstadt begins the video by emphasizing the importance of intent—the state’s gestational abortion limit prohibits abortion when the “sole intent is to end the life of the unborn child … except when necessary to preserve the life of a pregnant female.”
Magstadt also states unequivocally that when a miscarriage occurs or the pregnancy is located outside the uterine cavity (i.e., an ectopic pregnancy), doctors may continue to provide medically appropriate treatment. Further, as clarified by courts in Texas and Idaho, Magstadt states that women do not need to be “critically ill or actively dying for a needed medical intervention to end the pregnancy.” Doctors who perform abortions in medical emergencies should document their “thought processes in making their decision.” If a baby is viable, treatment is delivery, followed by appropriate care for the mother and baby. However, “a maternal fetal separation is still legal [when the mother’s life is in danger] … even when the foreseen but unintended consequence is a fetal or neonatal death.”
The video presents a non-exhaustive list of conditions that could necessitate a previability abortion, emphasizing that these conditions are rare and that abortion is not always necessary in these circumstances. Finally, Magstadt addresses the “reasonable medical judgment” standard, explaining that it is a “well-established legal principle in medical practice” and is referenced in statutes governing determinations of mental competence, end-of-life questions, determinations under the Americans with Disabilities Act, and other contexts. South Dakota’s video provides an excellent model for other states, discussed below, that are developing materials to explain their laws.
Kentucky
In March 2025, Kentucky enacted a new law that clarifies exceptions to the state’s gestational abortion limit and requires additional regulations from the Cabinet for Health and Family Services. The law does not reduce protections for unborn children; abortion remains restricted throughout pregnancy. Rather, Kentucky’s new law identifies specific circumstances in which unborn babies can be legally separated from their mothers and provides for the establishment of administrative guidance. The extensive findings explain the reasons for the law, including “a need to clarify the distinction between an elective abortion and … medically necessary interventions that affirm the fundamental right to life.” Specifically, the new law provides: “No action that requires separating a pregnant woman from her unborn child shall be performed, except the following when performed by a physician based upon his or her reasonable medical judgment:[54]
(a) A medical procedure performed with the intent to save the life or preserve the health of an unborn child;
(b) Lifesaving miscarriage management, which includes medically necessary interventions when the pregnancy has ended or is in the unavoidable and untreatable process of ending due to spontaneous or incomplete miscarriage;
(c) Sepsis and hemorrhage emergency medical interventions required when a miscarriage or impending miscarriage results in a life-threatening infection or excessive bleeding;
(d) A medically necessary intervention, inducement, or delivery for the removal of a dead child from the uterine cavity, when documented in the woman’s medical record along with the results of an obstetric ultrasound test, confirming that fetal cardiac activity is not present at a gestational age when it should be present;
(e) The removal of an ectopic pregnancy or a pregnancy that is not implanted normally within the endometrial cavity;
(f) The use of methotrexate or similar medications to treat an ectopic pregnancy;
(g) The removal of a molar pregnancy;
(h) A medical procedure necessary based on reasonable medical judgment to prevent the death or substantial risk of death of the pregnant woman due to a physical condition, or to prevent serious, permanent impairment of a life-sustaining organ of a pregnant woman. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn child in a manner consistent with reasonable medical practice; or
(i) Medical treatment provided to the mother by a licensed physician, which results in the accidental or unintentional injury or death of the unborn human being.”[55]
The law also requires that, except in a “medical emergency,”[56] any of the treatments or procedures listed above must be performed in compliance with regulations that the Cabinet for Health and Family Services must promulgate to ensure that the treating or referring physician can determine that the treatment or procedure is necessary based on his or her reasonable medical judgment. Further, the physician must document in the pregnant woman’s medical record that the woman provided informed consent after discussing “the risks, benefits, and alternatives to the treatment or procedure.” Physicians must document details of any medical emergency and follow regulations to the extent that it is safe for the patient.
Arkansas
In March 2025, Arkansas passed a law “to provide guidance and clarification regarding abortion laws and appropriate emergency medical procedures to save the lives of pregnant women.”[57] The “medical emergency” exceptions to the state’s gestation-based abortion limits[58] now include a “reasonable medical judgment” standard, which the legislature states is “the longstanding norm and applies in all medical contexts.”[59] “Reasonable medical judgment” is “a medical judgment that would be made or medical action that would be undertaken by a reasonably prudent, qualified physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.” The new law also clarifies that “[c]onditions for which treatment is available that can, in reasonable medical judgment, be expected to preserve or sustain the life of the pregnant woman without ending the pregnancy” are not included in the definition of “medical emergency.”[60] In other words, a physician has an obligation to save both the mother and baby when, in his “reasonable medical judgment,” that is possible.
The law provides that it is “not a violation” of the state’s gestational abortion limits, “if a licensed physician provides medical treatment to a pregnant woman which results in the accidental or unintentional injury or death to the unborn child.”[61] Before the enactment of this provision, doctors could, theoretically, be prosecuted inappropriately because they were limited to raising the claim that injury or death to an unborn child was accidental or unintentional as an affirmative defense to prosecution.
North Dakota
North Dakota’s legislature passed a bill in March 2025 that requires medical education. The law provides:
As part of licensure or renewal requirements under this section, the board shall require a physician engaging in the practice of obstetrics to complete an instructional course on chapters 12.1 – 19.1 [the gestational abortion limit], 14 – 02.1 [additional abortion regulations], and 14 – 02.6 [partial birth abortion ban] as the chapters relate to the practice of medicine. The instructional course must be developed by contract through the office of management and budget, in consultation with and with final approval from the attorney general.[62]
The materials the statute requires must be developed by “an individual who is or an organization that includes a physician with a minimum of twenty-five years of experience in the practice of obstetrics in the state,” in conjunction with and subject to final approval by the attorney general. These materials can guide physicians, protect women’s lives, and address any concerns raised by the North Dakota Supreme Court. Given that court’s recent discomfort with the medical emergency exception to the state’s gestation-based abortion limit,[63] the state legislature may need to follow Kentucky’s example by drafting a statute that lists the circumstances under which separation of a mother from her unborn child before viability is permitted.
Tennessee
In 2025, Tennessee added a definition of “serious risk of substantial and irreversible impairment of a major bodily function” to the state’s gestational abortion limit. The definition explicitly includes the following nonexhaustive list: “previable preterm rupture of membranes; inevitable abortion; severe preeclampsia; mirror syndrome associated with fetal hydrops; and an infection that can result in uterine rupture or loss of fertility.” The new law also defines “inevitable abortion” as “a dilation of the cervix prior to viability of the pregnancy, either by preterm labor or cervical insufficiency.”[64]
Texas
In 2025, Texas enacted a Med Ed law that further clarifies the state’s medical emergency exception. The law provides that “if a pregnant woman has a life-threatening physical condition … a physician may address a risk … before the pregnant female suffers any effects of the risk.” The law “does not require that, before the physician may act: (1) a risk … must be imminent; (2) the pregnant female first suffer physical impairment; or (3) the physical condition has caused damage to the pregnant female.” It also states, “‘life-threatening’ means capable of causing death or potentially fatal. A life-threatening physical condition is not necessarily one actively injuring the patient.”
The law also clarifies that “reasonable medical judgment” includes treating women for ectopic pregnancy and miscarriage. Further, the law provides an exception when “death or injury of an unborn child resulted from treatment provided to a pregnant female based on a physician’s reasonable medical judgment if the death of or injury to the unborn child was accidental or unintentional.” The law also provides that the “exceptions to otherwise prohibited abortions” in Texas “(1) shall be construed as consistent with the opinion of the Texas Supreme Court in In re State, 682 S.W.3d 890 (Tex. 2023), including with respect to providing that any threat posed by a female’s pregnancy to her life or major bodily functions need not be imminent or irreversible; and (2) shall be construed as consistent with the opinion of the Texas Supreme Court in State v. Zurawski, 690 S.W.3d 644 (Tex. 2024), including with respect to the state’s burden of proof in any enforcement action.”
The law directs the State Bar of Texas to develop or contract to develop for Texas attorneys “a comprehensive program of continuing legal education regarding the regulation of abortion” in Texas “with a focus on the exceptions to otherwise prohibited abortions.” The Texas Medical Board must also make available “one or more approved courses regarding the laws relating to pregnancy-related medical emergencies” and “inform all licensed physicians in the state of the availability of the course.” The course will be required for physicians who provide obstetric care before they receive their initial licensure or a license renewal.[65]
iii. Guidance from Physician Organizations
With one notable exception (see below), national physicians’ organizations have provided little guidance to physicians in states with gestation-based abortion limits on how to approach pregnant patients facing medical emergencies. The American College of Obstetricians and Gynecologists (ACOG), the primary organization for physicians who care for pregnant patients, has inexplicably failed to reassure doctors that state gestation-based abortion limits do not prevent physicians from providing medically appropriate care for their pregnant patients.
In a recent Committee Statement, ACOG wrote that ob/gyns have “duties to not withhold the provision of care that is legal due to fear of prosecution, to provide lifesaving and health-preserving care to the best of their training, and to appropriately transfer or refer patients, or both, when legally possible to locales and health care professionals who are able and appropriately trained to provide abortion care” (emphasis added).[66] However, the document fails to explain that in every state, it is legal for a physician to perform a maternal-fetal separation when the physician determines, based on reasonable medical judgment, that the separation is necessary to save the mother’s life. Documented life-saving care, performed based on a physician’s reasonable medical judgment, will not subject doctors to prosecution, period.[67]
In stark contrast to ACOG’s incomplete information, the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) created a Medical Education course, available to physicians and the public, that addresses confusion surrounding gestation-based abortion limits.[68] The video examines evidence-based medicine, the laws, acceptable procedures and medications, and when interventions are permissible. It distinguishes “induced abortion,” where the intent is to end the life of an unborn child, from “maternal fetal separation,” where the intent is to separate the mother and unborn child to preserve the life of one or both, even if the unborn child tragically dies. All states permit “maternal fetal separation” to save the life of a pregnant woman. Further, a pregnant woman can receive treatments such as an appendectomy or chemotherapy even if these treatments have the unintended and tragic result of harming her unborn child. These allowances are consistent with the “principle of double effect,” under which immediate harm may be caused to one person (i.e., the unborn child) to provide “proportionate good” to another (i.e., the mother), as long as the harm is a merely foreseen side effect of the action, rather than a directly intended means to accomplish the relevant end.[69]
The video explains that, fundamentally, physicians may continue to use their “reasonable medical judgments” to determine what is best for their pregnant patients, as they always have. Reasonable Medical Judgment, the standard that physicians must meet under many gestation-based abortion limits, “[a]ccounts for the ambiguity and the differences between clinicians’ opinions and understandings and interpretations of the medical literature.” The video also emphasizes the importance of clear documentation to demonstrate the physician’s thought process when determining whether maternal-fetal separation is necessary. Importantly, the video closes with a reminder that the goal of treating chronic health risks during pregnancy should be to protect the lives of both mothers and their babies. Given that “between 76-93% of ob/gyns did not perform induced abortions before Dobbs,” abortion is not essential healthcare and should be recommended only “when there are no clear medical management options and when the risk is truly significant to the mother.”[70]
ACOG, hospital boards, and other professional organizations should provide guidance to doctors that aligns with AAPLOG’s medical education video. The failure to do so is endangering mothers and their unborn children.
Mary E. Harned, J.D., is an associate scholar at the Charlotte Lozier Institute. Research and editing assistance for this series: Genevieve Plaster (during her employment as CLI Senior Editor & Director of Publications), Tessa Cox, Elyse Gaitan, Mariana Timler. The author consulted Paul Benjamin Linton’s book, Abortion under State Constitutions: A State-by-State Analysis, 2nd ed. (Carolina Academic Press 2012), when reviewing states’ pre-Roe history.
[1] 410 U.S. 113 (1973).
[2] 597 U.S. 215 (2022).
[3] See Abortion Protection states, supra.
[4] See Introduction to the Pro-Life States, supra.
[5] See Abortion Protection states, supra.
[6] This paper defines “Gestation-based abortion limits” as laws that restrict abortion, with limited exceptions, throughout or for most of pregnancy. Gestation-based abortion limits are distinct from bans on specific abortion procedures or abortions performed for specific reasons.
[7] This is the third paper in the series Abortion Law in America Today. For an introduction to the series and examination of the legal landscape in the 20 pro-life states, see Mary E. Harned, Abortion Law in America Today: Introduction and the Pro-Life States, Charlotte Lozier Institute (Dec. 17, 2025), https://lozierinstitute.org/abortion-law-in-america-today-introduction-and-the-pro-life-states/. For an analysis of the legal landscape in the 26 abortion protection states, see Mary E. Harned, Abortion Law in America Today: Abortion Protection States, Charlotte Lozier Institute (Jan. 28, 2026), https://lozierinstitute.org/abortion-law-in-america-today-abortion-protection-states/.
[8] Six states, Alabama, Arkansas, Louisiana, Nebraska, Tennessee, and West Virginia, have pro-life state constitutional amendments. These amendments generally provide that nothing in the state’s constitution secures or protects a right to abortion and that it is the public policy of the state to protect unborn babies. See, e.g., “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Louisiana Constitution of 1974 Art. I, § 20.1.
[9] See Introduction to the Pro-Life States, supra.
[10] Mary Harned & Ingrid Skop, Misleading Statements about “Life of the Mother” Exceptions in Pro-life Laws Require Correction, Issues in Law & Medicine, 39(1), 76-81, https://issuesinlawandmedicine.com/articles/misleading-statements-about-life-of-the-mother-exceptions-in-pro-life-laws-require-correction/.
[11] “Reasonable medical judgment” is an objective standard (i.e., was the decision reasonable based on peer-reviewed best practices), while “good faith medical judgment” is more subjective (i.e., what was in the mind of the healthcare provider when making the decision that the patient needed an abortion). However, as discussed in this paper, the state supreme courts in Idaho, where the statute requires a “good faith medical judgment,” and Texas, where the statute requires a “reasonable medical judgment,” reached virtually the same conclusion regarding doctors’ freedom to treat pregnant women in medical emergencies.
[12] See generally Tessa Cox, Ingrid Skop, & Mary E. Harned, Fact Sheet: Are Pro-Life State Laws Preventing Pregnant Women from Receiving Emergency Care? Charlotte Lozier Institute (Sept. 13, 2024), https://lozierinstitute.org/fact-sheet-are-pro-life-state-laws-preventing-pregnant-women-from-receiving-emergency-care/.
[13] Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death was Preventable, ProPublica, Sept. 16, 2024, https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death; Cassandra Jaramillo & Kavitha Surana, A Woman Died After Being Told it Would be a “Crime” to Intervene in her Miscarriage at a Texas Hospital, ProPublica, Oct. 30, 2024, https://www.propublica.org/article/josseli-barnica-death-miscarriage-texas-abortion-ban; Lizzie Presser & Kavitha Surana, A Pregnant Teenager Died After trying to Get Care in Three Visits to Texas Emergency Rooms, ProPublica, Nov. 1, 2024, https://www.propublica.org/article/nevaeh-crain-death-texas-abortion-ban-emtala; Lizzie Presser & Kavitha Surana, A Third Woman Died Under Texas’ Abortion Ban. Doctor are Avoiding D&Cs and Reaching for Riskier Miscarriage Treatments, ProPublica, Nov. 25, 2024, https://www.propublica.org/article/porsha-ngumezi-miscarriage-death-texas-abortion-ban.
[14] Kavitha Surana, Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died, ProPublica, Sept. 18, 2024, https://www.propublica.org/article/candi-miller-abortion-ban-death-georgia.
[15] “A legal analysis of states’ current laws, statutes, and opinions demonstrates that women will not be prosecuted in their state for seeking or obtaining abortion.” Amanda Stirone Mansfield, Pro-Life Laws Exempt Women from Prosecution: An Analysis of Abortion Statutes in 27 States, Charlotte Lozier Institute (Jan. 10, 2024), https://lozierinstitute.org/pro-life-laws-exempt-women-from-prosecution-an-analysis-of-abortion-statutes-in-27-states/.
[16] Kavitha Surana, Their States Banned Abortion. Doctors Now Say They Can’t Give Women Potentially Lifesaving Care, ProPublica, Feb. 26, 2024, https://www.propublica.org/article/abortion-doctor-decisions-hospital-committee.
[17] See State of Texas v. Zurawski, 690 S.W. 3d 644,699 (Tex. 2024)
[18] See Mabel Felix, Laurie Soble, & Alina Salganicoff, Criminal Penalties for Physicians in State Abortion Bans, KFF (Mar. 4, 2025), https://www.kff.org/womens-health-policy/criminal-penalties-for-physicians-in-state-abortion-bans/.
[19] Alabama Dep’t. of Public Health, Ctr. for Health Statistics, Alabama Induced Termination of Pregnancy Statistics, 2024, https://www.alabamapublichealth.gov/healthstats/assets/itop_2024%20.pdf.
[20] Mia Steupert & Elyse Gaitan, Abortion Reporting: Idaho (2024), Charlotte Lozier Institute (Aug. 28, 2025), https://lozierinstitute.org/abortion-reporting-idaho-2024/.
[21] Indiana Dept. of Health, Annual Terminated Pregnancy Report (2024), https://www.in.gov/health/vital-records/files/2024-Annual-ITOP-Report.pdf.
[22] Indiana Dept. of Health, Terminated Pregnancy Report, Jan. 1 – March 31, 2025, https://www.in.gov/health/vital-records/files/2025-Q1-ITOP-Report.pdf; Terminated Pregnancy Report, April 1 – June 30, 2025, https://www.in.gov/health/vital-records/files/2025-Q2-ITOP-Report.pdf; Terminated Pregnancy Report, July 1 – Sept. 30, 2025, https://www.in.gov/health/vital-records/files/2025-Q3-ITOP-Report.pdf.
[23] Kentucky Dept. of Public Health, Kentucky Annual Abortion Report for 2024, https://www.chfs.ky.gov/agencies/dph/dehp/vsb/Forms/2024KYAbortionAnnualReport.pdf.
[24] Oklahoma State Department of Health, Abortion Surveillance in Oklahoma: 2022-2024 Summary Report, https://oklahoma.gov/content/dam/ok/en/health/health2/aem-documents/data-and-statistics/center-for-health-statistics/induces-termination-of-pregnancy/Abortion-Surveillance-in-Oklahoma-2024.pdf.
[25] Texas Health and Human Services, Texas Induced Terminations of Pregnancy Statistics, https://www.hhs.texas.gov/about/records-statistics/data-statistics/texas-induced-terminations-pregnancy-statistics.
[26] West Virginia Dep’t. of Health, Bureau for Public Health, Health Statistics Center, Recent reports, https://dhhr.wv.gov/HSC/publications/recent_reports/Pages/recent_reports.aspx.
[27] See also Tessa Cox, Ingrid Skop, & Mary E. Harned, Fact sheet: are pro-life state laws preventing pregnant women from receiving emergency care? Charlotte Lozier Institute (Sept. 13, 2024), https://lozierinstitute.org/fact-sheet-are-pro-life-state-laws-preventing-pregnant-women-from-receiving-emergency-care/, citing Maura Quinlan & Paul Benjamin Linton, Medically Necessary Abortions After Dobbs: What, If Anything, Has Changed?, 39 Notre Dame J.L. Ethics & Pub. Pol’y 39 (forthcoming 2025), https://papers.ssrn.com/abstract=4909792. “Importantly, a recent review of court cases demonstrated that only two physicians in U.S. history were reported to have been prosecuted for performing abortions where there was ‘some credible evidence’ the abortions had been performed to save the life of the mother. Critically, both convictions were reversed, and both were many decades ago – one in the 1960s and the other over 100 years ago. Post-Dobbs and as of publication, there has never been a reported case of a physician being prosecuted for performing an abortion to save the life of the mother.”
[28] Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death was Preventable, ProPublica, Sept. 16, 2024, https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death.
[29] Kavitha Surana, Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died, ProPublica, Sept. 18, 2024, https://www.propublica.org/article/candi-miller-abortion-ban-death-georgia.
[30] Surana, supra note 28. ProPublica writers also published articles about the deaths of three women in Texas, Josseli Barnica, Nevaeh Crain, and Porsha Ngumezi, all three of whom should have received the life-saving care they needed, care that was not regulated under the state’s gestational abortion limit. According to the publication, Ms. Barnica had a dilatated cervix at 17 weeks gestation, an “inevitable miscarriage,” but the doctors refused to deliver the baby because he still had a heartbeat. The delay led to an infection that killed Mrs. Barnica. Cassandra Jaramillo & Kavitha Surana, A Woman Died After Being Told it Would be a “Crime” to Intervene in her Miscarriage at a Texas Hospital, ProPublica, Oct. 30, 2024, https://www.propublica.org/article/josseli-barnica-death-miscarriage-texas-abortion-ban. Ms. Crain’s care was also delayed, leading to sepsis and death. Lizzie Presser & Kavitha Surana, A Pregnant Teenager Died After trying to Get Care in Three Visits to Texas Emergency Rooms, ProPublica, Nov. 1, 2024, https://www.propublica.org/article/nevaeh-crain-death-texas-abortion-ban-emtala. Ms. Ngumezi was denied a D&C to stop her bleeding after a miscarriage, which led to her death. Lizzie Presser & Kavitha Surana, A Third Woman Died Under Texas’ Abortion Ban. Doctor are Avoiding D&Cs and Reaching for Riskier Miscarriage Treatments, ProPublica, Nov. 25, 2024, https://www.propublica.org/article/porsha-ngumezi-miscarriage-death-texas-abortion-ban.
[31] O.C.G.A. § 16-12-141 (emphasis added).
[32] Surana, supra note 28.
[33] Stephen B. Cherry, Abortion Trigger Laws Compared with the Emergency Medical Treatment and Labor Act, Obstet Gynecol. March 2024; 143(3): 366-368, doi: 10.1097/AOG.0000000000005483.
[34] Mary Harned & Ingrid Skop, Misleading Statements about “Life of the Mother” Exceptions in Pro-life Laws Require Correction, Issues in Law & Medicine, 39(1), 76-81, https://issuesinlawandmedicine.com/articles/misleading-statements-about-life-of-the-mother-exceptions-in-pro-life-laws-require-correction/.
[35] Idaho Code § 18-622.
[36] Planned Parenthood Great Nw. v. Idaho, 522 P.3d 1132, 1203 (Idaho 2023).
[37] Adkins v. State of Idaho, Idaho Dist. Ct. No. CV01-23-14744.
[38] Tex. Health & Safety Code §§ 170A.001–7.
[39] Zurawski at 671.
[40] Zurawski at 664, citing In re State, 682 S.W.3d 890, 894 (Tex. 2023).
[41] Id. at 663.
[42] Id. at 663-4.
[43] Florida Dept. of State, Notice 28322077, Notice of Emergency Rule (May 2, 2024), https://flrules.org/Gateway/View_notice.asp?id=28322077.
[44] Id.
[45] Florida AHCA, Myth vs Fact (May 1, 2024), https://x.com/AHCA_FL/status/1785784419149648289.
[46] Oklahoma Attorney General, Memorandum to All Oklahoma Law Enforcement Agencies from Oklahoma Attorney General. Re: Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org., OCRJ v. Drummond, and OCRJ v. Oklahoma (Nov. 21, 2023), https://oklahoma.gov/content/dam/ok/en/oag/news-documents/2023/november/memo_to_law_enforcement_part_ii_final.pdf.
[47] Oklahoma Attorney General, Guidance for Oklahoma physicians following Dobbs v. Jackson Women’s Health Org., OCRJ v. Drummond, and OCRJ v. Oklahoma (Sept. 12, 2025), https://oklahoma.gov/content/dam/ok/en/oag/opinions/advisory-letters/Abortion%20Guidance%20to%20Oklahoma%20Physicians%20Final.pdf.
[48] Lizzie Jensen & Monica Madden, Texas Medical Board adopts rules clarifying exceptions to state’s abortion ban, Kxan, June 21, 2024, https://www.kxan.com/news/texas/texas-medical-board-to-discuss-exceptions-to-states-abortion-ban/.
[49] Commonwealth of Kentucky, Office of Attorney General, Attorney General Advisory: The effect and scope of the Human Life Protection act in light of Dobbs v. Jackson Women’s Health Organization (June 24, 2022), https://www.ag.ky.gov/Advisories/Human%20Life%20Protection%20Act%20Advisory.pdf.
[50] Nebraska Dep’t. of Health & Human Services, Letter from Timothy A. Tesmer, MD, Chief Medical Officer, Division of Public Health, Department of Health and Human Services, to Health Professionals (April 27, 2023), https://dhhs.ne.gov/Documents/TesmerGuidance042723.pdf.
[51] Nebraska Dep’t. of Health & Human Services, Letter from Timothy A. Tesmer, MD, Chief Medical Officer, Division of Public Health, Department of Health and Human Services, to Active, Licensed Physicians and Osteopathic Physicians & Surgeons (May 22, 2023), https://dhhs.ne.gov/licensure/Documents/LB574-Notification-to-Physicians.pdf.
[52] House Bill 1224, 24.574.16 99th Legislative Session 1224, 2024 South Dakota Legislature.
[53] South Dakota Dep’t. of Health, Medical Education & Guidance, South Dakota’s Abortion Law, https://www.youtube.com/watch?v=vrYxPkSzTTw.
[54] “Reasonable medical judgment” is defined as “the range of conclusions or recommendations that licensed medical practitioners with similarly sufficient training and experience may communicate to a patient based upon current available medical evidence.” KRS § 311.720.
[55] KY HB 90; Ky. Rev. Stat. Ann. § 311.723.
[56] “Medical emergency” means any condition which, on the basis of the physician’s reasonable medical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.”
[57] HB 1610. Legislative findings and intent, Ark. HB 1610, engrossed 5/25.
[58] Ark. Code § 5-61-301-304; Ark. Code § 5-61-401-404. Both laws limit abortion throughout pregnancy, permitting abortion when a physician determines it is necessary to save a mother’s life.
[59] HB 1610, supra.
[60] HB 1610, supra.
[61] HB 1610, supra.
[62] ND Engrossed House Bill No. 1511.
[63] On November 21, 2025, North Dakota’s Supreme Court narrowly upheld the state’s gestation-based abortion limit: “The district court erred in concluding [North Dakota’s law] is unconstitutionally vague and further erred in concluding [North Dakota’s constitution] protects a right to abortion broad enough to conflict with [the abortion limit].” Access Indep. Health Servs. v. Wrigley, 2025 ND 199, ¶147 (N.D. 2025), https://www.ndcourts.gov/supreme-court/opinions/198456. However, the Court had previously expressed doubt about the sufficiency of the law’s exceptions when refusing to stay the lower court’s injunction: “The law’s exception for injury and death caused by psychological maladies appears arbitrary. If the State’s goal is to prevent unnecessary abortions and protect maternal health, this law does not appear narrowly tailored to achieve that aim within constitutional bounds. Therefore, the law is unlikely to survive strict scrutiny review.” Access Indep. Health Servs. v. Wrigley, 2025 ND 26, ¶ 36 (N.D. 2025).
[64] Public Chapter No. 217, SB No. 1004, amending Tenn. Code Ann. § 39-15-213.
[65] Texas S.B. No. 31.
[66] Increasing Access to Abortion: ACOG Committee Statement No. 16. Obstet Gynecol. 2025 Feb 1;145(2):e86-e97. doi: 10.1097/AOG.0000000000005804.
[67] ACOG’s website includes a page that directs members to legal resources, including an abortion advocacy organization that tracks state laws. However, ACOG fails to directly reassure physicians that they may continue to meet the standard of care for their pregnant patients in medical emergencies. See The American College of Obstericians & Gynecologists, Legal Resources, https://www.acog.org/advocacy/abortion-is-essential/practice-management/legal-resources (last visited Jul. 31, 2025).
[68] American Association of Pro-life Obstetricians and Gynecologists, Practicing Obstetrics in States with Abortion Regulations: What Clinicians Need to Know, https://meded.aaplog.org.
[69] See also, Alison McIntyre, “Doctrine of Double Effect,” in The Stanford Encyclopedia of Philosophy, 2023/07 ed. Edward N. Zalta and Uri Nodelman (Metaphysics Research Lab, Stanford University, 2023), https://plato.stanford.edu/archives/win2023/entries/double-effect/.
[70] Id.
