Some of the state laws banning abortion in the US contain exceptions for health reasons, typically where the pregnancy threatens the health of the mother or if the foetus is not viable.

There have been cases where women seemed to qualify for an abortion under one of these exceptions, but were denied an abortion by medical staff on the grounds that the medics could not be certain that the police or courts would agree.

For instance, one woman who's foetus had an incomplete skull was denied an abortion:

Because Louisiana’s list of conditions justifying an exception from the state’s abortion ban did not explicitly include acrania, hospital officials turned down terminating Davis’ pregnancy, apparently fearing they could be subject to prison time, costly fines and forfeiture of their operating licenses if they performed the procedure.

The relevant exception in this case is for a "medically futile" pregnancy, defined as:

(4) "Medically futile" means that, in reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth. This diagnosis shall be a medical judgment certified in the pregnant woman's medical record by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

Likewise the same law also allows for abortion when

necessary, to the best of that person's reasonable medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

This requires a doctor contemplating offering an abortion to decide whether the risks to the mother are "substantial" and "serious". Again, people of common intelligence might well differ about any individual case. Could it be that exceptions like this render the laws unconstitutionally vague? The vagueness doctrine is:

[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

It would seem, as a practical matter, that the medics in the Louisiana case above were genuinely uncertain as to whether administering an abortion would render them liable to severe legal penalties. They were uncertain whether police, prosecutors and jurors "of common intelligence" (i.e. not trained in medicine) might consider them "reasonably prudent" after the fact if they carried out an abortion.

Could some or all of an anti-abortion law be struck down for vagueness as a result?

I know that this is asking about a hypothetical case, and there hasn't been time for any US court to make judgements about such a case. But I'm interested in whether such an argument would stand a reasonable chance in a court.

3 Answers 3



A law that requires the use of skill and judgement in a profession or, more generally, requires the application of reasonableness or some other legal standard of conduct is not vague.

The hospital’s doctors (and lawyers) in this case decided, in their professional opinion, that the pregnancy was not “medically futile” as defined in the legislation.

By making that decision they have potentially exposed themselves to a lawsuit by the mother. If that happens, the court will judge whether they made the right call - there is no vagueness here, expert testimony will be sought and the decision will have been found to fall on one side or the other.

Had they made the opposite decision then the same rules would apply to any potential criminal prosecution.

The decision they made was either right or wrong and the court can decide which. Making theses types of decision is part and parcel of being a professional.

  • 1
    Fundamentally, this is not much different from malpractice laws which impose civil penalties on professionals who make decisions that courts later decide were "wrong" and caused harm. It's not unusual generally for a person to be unsure whether their conduct will later be deemed legal or criminal -- think about someone using lethal self-defense in a complex situation where they think their life is in danger but others may later disagree. Commented Sep 17, 2022 at 6:38

Are exceptions to abortion bans unconstitutionally vague?

It depends on the actual terms of each statute. The example you provided is not unconstitutionally vague.

The pretext alleged in The Guardian reflects a poor understanding --or perhaps a malingered misunderstanding-- of the statutory exception. Given the terms and scope of that exception, it is unreasonable to expect that each specific anomaly (such as acrania) be listed in the statute.

  • The quotation provided in the question doesn't list any specific conditions, so if there is a list somewhere it may not be in the statute itself.
    – phoog
    Commented Sep 16, 2022 at 23:12
  • @phoog "The quotation provided in the question doesn't list any specific conditions". The statutory exception does not need to be more specific. It provides that abortion is permissible if the anomaly is (1) of congenital or chromosomal nature, (2) profound and irremediable, and (3) incompatible with sustaining life after birth. That way of defining a set is very common and efficient, whereas listing each one of its elements (i.e., naming each anomaly) in the statute or elsewhere would be impractical. Commented Sep 17, 2022 at 10:47

The Pain-Capable Unborn Child Protection Act contains the following prohibition:

(E)(1)...No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the woman's unborn child is twenty or more weeks, unless the pregnancy is diagnosed as medically futile...

The act also defines "medically futile":

"Medically futile" means that, in reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth

There is no explicit list of exceptional conditions. The statute is very clear, the only unclarity that exists is medical in nature.

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