Fox on the Abortion Double Bind

Dov Fox has posted to SSRN The Abortion Double Bind.  The abstract provides:

Medically needed abortion treatment is being delayed and denied by doctors who are understandably wary not to cross the line set by blurry medical exceptions to felony prohibitions against ending a pregnancy. Which raises a legal puzzle: the very abortion that state bans outlaw as first-degree homicide, other parts of our legal system command as essential care to save a patient’s life or preserve her health. Leaving clinicians trapped between (1) the risk of criminal conviction for ending a pregnancy that’s not dangerous enough, and (2) the risk of civil liability for not ending a pregnancy that’s too dangerous, under state malpractice law or a federal statute that requires emergency medical treatment. The chilling effect of ambiguous emergency exemptions doesn’t mean it would be better for states to specify eligible conditions. Detailed lists might reassure tentative physicians seeking to perform an abortion under particular circumstances. But any such preclearance would also operate to suppress the case-by-case discretion that’s critical to provide treatment that’s responsive to context under time-sensitive conditions. This article traces key features of the abortion double bind to the era before Roe v. Wade. And it spells out concrete actions that concerned professionals and the groups that represent them should take to reduce the risk of being sued or prosecuted for exercising reasonable medical judgement and good-faith legal interpretation.