Proving That You Qualify for an Abortion Exception

State abortion laws often use terms like “woman” and “mother.”  When used in this article, they should be understood to apply to all birthing persons regardless of gender identity.

Recently, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization. Dobbs overturned Roe v. Wade and allowed states to make their laws about abortion. After Dobbs, many states limited abortion access or banned abortion completely. However, all of these new abortion laws have exceptions. 

We discuss abortion exceptions that apply after Dobbs and how to prove that your case fits within an exception. State abortion laws can change quickly. Talk to a reproductive rights lawyer near you to get the most up-to-date legal advice for your situation. 

The Current Status of American Abortion Law 

In 1973, the U.S. Supreme Court decided Roe v. Wade. Roe held that abortion was a constitutional right. Later Supreme Court decisions clarified that states couldn’t ban abortion before fetal viability. Viability is the point at which a fetus can survive outside of the uterus on its own. It usually occurs around 24 weeks’ gestation. 

In 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization. Dobbs ruled that abortion was no longer a constitutional right, thereby overturning Roe. Because the Constitution no longer required it, states could make their own decisions about whether and when abortion should be allowed. 

States’ responses to Dobbs have included: 

• Banning abortion during all pregnancy stages: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia
• Prohibiting abortion in the early pregnancy stages: Florida (6 weeks), Georgia (6), Iowa (6), Nebraska (12), North Carolina (12), South Carolina (6), and Utah (18) 
• Limiting abortion near fetal viability (22-24 weeks) or not limiting it at all: The remaining 29 states and Washington, D.C.

Common Exceptions To State Abortion Bans

Although states have taken various approaches to abortion, every state abortion law contains at least one exception. These exceptions can be grouped into two categories: medical and criminal. 

Medical Exceptions 

Medical exceptions allow abortions to address the pregnant person’s or fetus’s health. 

• “Life of the mother” exceptions apply when pregnancy complications create a serious risk of death for a pregnant person. Life exceptions exist in all 50 states and Washington, D.C.
• Health exceptions cover medical conditions that aren’t life-threatening but could cause irreversible impairment of a major bodily function. All states except Arkansas, Idaho, Mississippi, Oklahoma, South Dakota, and Texas offer this exception.   
• Lethal fetal anomaly exceptions refer to pregnancies where the fetus will not survive post-birth. Just seven states with abortion bans or strong abortion restrictions have fetal anomaly exceptions. These states are Alabama, Florida, Georgia, Indiana, North Carolina, South Carolina, and West Virginia.

Criminal Exceptions

Criminal exceptions allow abortions when pregnancy results from rape or incest. States with rape and incest exceptions include Florida, Georgia, Idaho, Indiana, Iowa, Nebraska, North Carolina, North Dakota, South Carolina, and West Virginia. Mississippi’s law mentions rape but not incest.

Why Exceptions Matter

Abortion exceptions help people in all states. In states with strict abortion bans, exceptions allow abortions that would otherwise be illegal. In states with more lenient abortion laws, medical exceptions can justify post-viability abortions.  

Most states with strict abortion laws also increase the timeline for abortion when an exception applies. For example, Georgia extends its six-week abortion limit to 20 weeks in cases of rape or incest. On the other hand, states may also impose other requirements. In states such as North Carolina and Virginia, abortions that take place after the standard time limit must be performed in a hospital instead of a clinic or doctor’s office.

How To Qualify for an Abortion Based on a Medical Exception 

Qualifying for a medical exception isn’t up to the patient. Generally, the law leaves the decision to the healthcare provider. 

In most states, the doctor must determine that an abortion is necessary in their “reasonable medical judgment” (or “good faith clinical judgment”). In other words, the ob-gyn must be fairly certain that the fetus won’t survive or that the parent will suffer death or severe injury without an abortion. Most states require doctors to create a record that includes the medical justification for the abortion.

How To Qualify for an Abortion in Cases of Rape or Incest 

The majority of states with rape and incest exceptions require the person seeking the abortion to report the assault to law enforcement before the abortion a doctor can perform it. This is true in Florida, Georgia, Idaho, Iowa, Mississippi, South Carolina, and West Virginia. 

Some states also impose deadlines. In Iowa, the victim must report rape within 45 days of the incident. Most states with strict abortion laws require the pregnant patient to take the police report to the abortion provider before the procedure. Usually, the law directs the doctor to put the police report in the patient’s file and note the reason for the abortion.    

Get Help Understanding Your State’s Abortion Exceptions 

State abortion laws contain many exceptions. Determining whether an exception applies to a particular case can be difficult for patients and clinicians. The confusion can cause doctors to deny abortions in cases where they should be allowed. If you believe that a health care provider denied you abortion care that you were entitled to under your state’s laws, you have rights. Use the LawInfo directory to find a reproductive rights attorney near you today.