The state’s abortion ban excludes suicide, mental health exemptions

In the year since the Supreme Court struck down a national abortion right, 18 states have enacted abortion bans that specify that mental health or suicidality do not qualify as an exception related to a woman’s health — a departure that comes despite growing national momentum to treat physical and mental health equally.

Suicide is one of the leading causes of death among women of reproductive age. Nearly 23 percent of pregnancy-related deaths are due to mental illness, according to the Centers for Disease Control and Prevention.

“These are the conditions that kill women, and the absolute biggest risk factors for them are mental health conditions like depression and substance use disorders,” said Constance Gee, founder and director of the Division of Women’s Reproductive Behavioral Health at the University of Medicine of South Carolina. . “So these conditions are absolutely as deadly as many other conditions in medicine.”

Despite the decision in Dobbs v. Jackson Women’s Health Organization in June 2022, which repeals the federal right to abortion, federal law still requires states to perform abortions in medical emergencies or risk losing Medicare funding — a significant source of their revenue.

But what constitutes a medical emergency is not the same, at least not in a legal sense. While state laws vary in specifics, no state specifically offers protection in mental health emergencies.

The gray area is confusing for medical providers.

“There is a lot of confusion. There’s a lot of concern, especially when you then couple that with potential prosecution of the provider,” said Gee, a reproductive psychiatrist. “People are afraid to step in and do the right thing, and they care because they’re so worried that they’re going to do something illegal, especially when the laws are confusing and it’s not entirely certain.”

Push for parity elsewhere

The push to distance mental health from the physical in state abortion laws comes despite declining stigma and broader bipartisan acceptance of policies related to many areas of mental health.

Congress passed bipartisan Mental Health Parity Acts in 1996 and 2008, requiring insurers to provide equal coverage for mental health and physical conditions. And in 2022, Congress passed bipartisan mental health and gun safety legislation.

Even some of the state laws that disqualify mental health from qualifying as a medical emergency recognize the risks that certain mental conditions can bring — but only in relation to the risks or complications of abortion.

In Tennessee, for example, state law specifies that doctors can request an exception to the ban on performing emergency abortions to prevent death or “impairment of an essential bodily function.” But that language specifically excludes “psychological or emotional conditions” of the pregnant woman.

However, the same law also requires the physician to report any medical complications after an abortion, including “psychological complications, such as depression, suicidal thoughts, anxiety, and sleep disturbances; and other adverse events.”

“What you’ll find is that lawmakers will talk about excluding things related to mental health or suicidal ideation because they don’t want unscrupulous actors to use those as reasons why people would have an abortion,” said N. Dawn Bingham. , clinical associate professor of obstetrics and gynecology at USC-Columbia School of Medicine. “They’re looking for any reason to show that abortion actually hurts women.”

Origin

The United States is not the only country to question what constitutes a mental health emergency justifying an abortion.

Ireland had some of the strictest restrictions on abortion in the European Union until voters overturned the ban in 2018. But the country allows exceptions for risk of suicide after a landmark 1992 Irish Supreme Court ruling.

In the United States, state abortion laws separating mental health have their roots in a 2005-06 federal push to restrict non-incarcerated adults from helping minors obtain abortions across state lines.

A bill introduced in 2005 included text providing an exception for cases where the delay “would cause significant and irreversible impairment of a major bodily function of the minor resulting from continued pregnancy, not including psychological or emotional conditions.”

National Right to Life Committee lobbyist Doug Johnson helped draft versions of the bill, which passed both chambers but failed to become law.

Since then, federal lawmakers have introduced 32 other abortion bills that clarify that all exemptions “do not include psychological or emotional conditions” — starting in 2012, after states began adopting similar language.

In 2010, Nebraska passed a 20-week abortion ban allowing medical exemptions, but not for those related to suicidal ideation. This legislation was based on a model bill drafted by Mary Spaulding Balch, the NRLC’s director of state legislation at the time.

Alabama passed its own 20-week ban in 2011, with the wording also banning medical exemptions related to suicidal thoughts and expanding it more broadly to all mental health conditions.

Two states list only suicidal risk as a disqualifier for seeking a medical exception to abortion, nine consider only mental health as a disqualifier, and seven disqualify both mental health and suicidal risk, according to a CQ Roll Call analysis of laws passed in or after 2005 Mr.

Before Dobbs, states could apply mental health restrictions before fetal viability. The ruling allowed states to impose stricter bans with those exceptions.

The analysis also found that Oklahoma passed six laws that included the most commonly used language for mental health exemptions between 2011 and 2021. Kansas passed five between 2011 and 2023 with identical language specifying exceptions for suicidal ideation.

Narrowly tailored exceptions are rare.

In 2019, Alabama passed a separate near-total abortion ban with wording that also created a narrow exception allowing some mental health emergency exceptions if an Alabama-licensed psychiatrist with at least three years of clinical experience also certifies that the mental health emergency .

This provision would allow a state-licensed physician with hospital admitting privileges to perform an abortion. The law went into effect in June 2022 after the Dobbs decision and also does not include exceptions for rape or incest.

In June 2022, before the Dobbs decision, the NRLC unveiled its draft state abortion ban bill that included text clarifying that mental health and suicidal ideation should not be considered medical emergency exceptions in the laws after Dobbs.

“In the past, we’ve seen how health care exemptions were basically loopholes to allow abortions for any reason. You know, you can get a woman to say that, ‘but I’m anxious or I might kill myself,'” said Ingrid Duran, director of state legislation at the NRLC. “If we’re really concerned about someone’s mental health, then forcing them to have an abortion is not the way to solve it.”

Stigma

In practice, laws separating mental health from physical health can make things more difficult to navigate for providers who worry that it may further stigmatize mental health.

“It’s basically saying these aren’t even conditions, never mind life-threatening conditions. That’s not true,” Gee said.

Collecting data on mental health emergencies and abortion is difficult. States are not required to report abortion statistics to the CDC. Patients traveling to a country without mental health restrictions may not need to disclose whether mental health was a factor in seeking an abortion.

“When the language was passed in different states, there also wasn’t any real legislative conversation, either in committee or on the floor, about what they were doing to shape mental health,” said Elizabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights.

“I don’t know that these lawmakers have ever had to publicly explain their position or try to deal with what that means.”

This story is part of a series supported by the Rosalyn Carter Fellowship for Mental Health Journalism.

If you or someone you know is facing a mental health crisis, please call the toll-free, 24-hour 988 suicide and crisis line at 9-8-8 to connect with a trained counselor.

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