Volume XXII

Pregnancy's Risks and the Health Exception in Abortion Jurisprudence

by Elyssa Spitzer

Current abortion jurisprudence provides logically sufficient grounds for universal access. Under the health exception, abortion-regulating legislation must explicitly permit abortion access when a pregnancy threatens a pregnant person’s health. This article argues that, given the universal risks of pregnancy and birth, the reasoning of the health exception supports abortion access for all pregnancies, pre-and post-viability. Though the Court has presumed risks in pregnancy to be rarities, contemporary medical research into pregnancy and birth make clear how sweepingly common, unpredictable, severe, and multiple health risks remain. Since 1999, maternal mortality and morbidity rates – both persistently worse for people of color – have been increasing. Combing the legal standard and medical research, this article demonstrates that according to the logic of the health exception, abortion should be permitted in all circumstances, as each pregnancy and birth poses a threat to the pregnant person’s health. This logical consequence has implications for abortion access. If the health exception were given the effect this article argues both jurisprudence and medical research mandate, abortion should be available whenever sought, viability-defining legislation notwithstanding.

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