Could a doctor be sentenced to death for abortions in any US state?

Question

Are there any US states where a doctor could be sentenced to death for performing abortions?

Answer 1

There is somewhat-suggestive case law in Coker v. Georgia, 433 U.S. 584 that a death penalty would be unconstitional as "grossly out of proportion to the severity of the crime", considered "in terms of moral depravity and of the injury to the person and to the public". It was decided in Kennedy v. Louisiana, 554 U.S. 407 that the death penalty is disproportionate "where the crime did not result, or was not intended to result, in the victim’s death".

However, by changing the homicide statutes so that performing an abortion is an instance of capital murder, that limit on the death penalty could be circumvented. In Texas, it is criminal homicide if one

intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual

Capital murder is defined in §19.03. One of the triggers for capital murder is

(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration

Most doctors work for money. But there is also the condition

(8) the person murders an individual under 10 years of age;

§19.06 has some exceptions for

(1) conduct committed by the mother of the unborn child;

(2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or

(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

Para 1 protects the mother from prosecution, but para 2 requires that the medical procedure be lawful. If and when abortion is outlawed in Texas, the homicide statute would have to be amended to prevent abortion from being a capital offense (or, as always, an appeal to SCOTUS). A fetus is already statutorily defined as an individual:

a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth

There are some consequences for in vitro fertilization, inter alii, flowing from this definition.

Answer 2

Not at this time in the case of a physician acting with the consent of the pregnant woman.

A comprehensive list (which has to be clicked through for some states) is here. The most severe possible criminal penalty that I identified was 99 years in prison under a new Alabama law and a new Texas law.

The question of whether the death penalty for performing a medical abortion with the consent of the pregnant woman could be constitutionally permissible under the 8th Amendment to the U.S. Constitution as incorporated against state and local governments through the 14th Amendment to the U.S. Constitution, if otherwise conforming to modern death penalty jurisprudence, is an open question upon which there is no controlling case law.

Legislation to do so has been proposed in states including Idaho, but no such law has been adopted at this time.