The Impact of State Laws Criminalizing Abortion

By: Amanda Zablocki and Mikela T. Sutrina, SHEPPARD MULLIN WILLIAMS MULLEN

On August 5, 2022, Indiana joined 19 states whose laws criminalize abortion prior to viability in the wake of the recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.¹

IN MANY OF THESE STATES, PERFORMING AN ILLEGAL abortion constitutes a felony, giving rise to significant civil and criminal penalties, including jail time. While it remains to be seen which of these laws ultimately survives the many court challenges currently under way, providers are struggling to understand the line between what is legal and what constitutes a crime. That question, however, is only the tip of the iceberg. This article provides an overview of the current state laws criminalizing abortion and the broader implications of those laws.

The law, policy, and regulatory climate surrounding the Dobbs decision is complex and quickly developing. The information provided in this article summarizes the current legal landscape at the time of publication. This article samples a variety of state laws to address the topic of abortion criminalization, but it does not address all potential legal issues or jurisdictional differences. Moreover, certain of the criminal laws described in this article have been enjoined by court action since the Dobbs decision. This article does not address the scope of those injunctions, or the likelihood of those laws being overturned or modified due to such actions.

Understanding State Criminal Abortion Laws

Perhaps most challenging for women, providers, and other individuals and companies across the country is that there are significant variations from state to state with regard to the conduct each state prohibits, and the criminal penalties imposed for such conduct. For example, Texas bans abortion without regard to the gestational age of the fetus, with limited exceptions, and imposes maximum criminal and civil penalties. By contrast, Ohio’s abortion trigger law (which, like other trigger laws, is designed to spring into effect upon the reversal of Roe v. Wade² or an amendment to the Constitution stating that there is no constitutional right to an abortion) prohibits abortion after the detection of cardiac activity and classifies abortion as a felony of the fifth degree. However, when examining these laws as a whole, a few key distinguishing features emerge that help to define the scope of potential liability and risk to providers and other organizations, each of which is discussed in turn below.

Blanket Prohibition Versus Gestational Limitation

A gating question under any of these laws is when the termination of a pregnancy is deemed to be illegal. Under Roe, the decision whether to have an abortion was relegated to women in the first trimester, with states afforded increasing ability to regulate abortion as the pregnancy progressed into the second and third trimester. The Supreme Court reaffirmed the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey,³ but replaced the trimester-based approach with a theory of viability of the fetus (i.e., the point at which the fetus would have a chance of surviving outside the womb). In each case, women and their physicians had time not only to initially discover a pregnancy, but also time to make a decision about whether or not to continue the pregnancy. Following Dobbs, states are free to regulate the termination of a pregnancy at any time.

In response to this new freedom, over half the states with criminal prohibitions on abortion have enacted (or revived) a blanket prohibition regardless of the gestational age or maturity of the fetus. These states include Alabama,⁴ Arkansas,⁵ Idaho,⁶ Indiana,⁷ Kentucky,⁸ Louisiana,⁹ Mississippi,¹⁰ Missouri,¹¹ North Dakota,¹² Oklahoma,¹³ South Dakota,¹⁴ Texas,¹⁵ Utah,¹⁶ West Virginia,¹⁷ and Wyoming.¹⁸

In only a handful of these states, such as Arkansas and Kentucky, is it clear that the sale, use, prescription, and administration of contraceptives does not, in and of itself, give rise to liability under the relevant statutes.¹⁹ In the other states with blanket prohibitions, it is possible that activities designed to prevent pregnancy in the first instance, such as birth control or emergency contraceptives, could give rise to liability to the extent they result in the termination of an unintended pregnancy.

In the states that criminalize abortions performed following a defined gestational period or after cardiac activity is detected (e.g., Ohio, South Carolina, Tennessee, and Wisconsin), there is more (albeit, very limited) time to discover a pregnancy exists before the termination of such pregnancy would become illegal, whether by use of emergency contraceptives or otherwise.²⁰

Scope of Permitted Versus Prohibited Conduct

Another key distinction among the state laws is the scope of conduct prohibited. Even under the most restrictive of laws, abortion is generally permitted when necessary to prevent death or serious health risks to the mother. For example, in Kentucky abortion is permitted to “prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”²¹ In addition to what constitutes substantial or serious health risks, a key question will be how certain the physician must be that a patient faces such a risk, and how imminent the risk of death or serious risk to the pregnant woman’s health must be, for the abortion to be deemed lawful. Notably, this issue is the subject of a challenge to Idaho’s anti-abortion law by the U.S. Department of Justice on the grounds that hospitals participating in Medicare must abide by the federal Emergency Medical Treatment and Labor Act (EMTALA).²² Moreover, Idaho and Indiana both expressly state that a woman’s psychological state or emotional or mental condition cannot be used to support an argument that the abortion is necessary to save the pregnant woman’s life.²³

Idaho, Mississippi, North Dakota, Oklahoma, and South Carolina also permit abortions in the case of rape and incest, with some limitations. In Idaho and Oklahoma, the rape must be reported to law enforcement, whereas in Mississippi and North Dakota, there is no reporting requirement. In South Carolina, abortion due to rape or incest is permitted only in the first 20 weeks of pregnancy. South Carolina also permits abortion in the case of a fetal anomaly.

Importantly, in most of the criminal bans on abortion, permitted abortions are stated as exceptions to the ban, which effectively leaves the state with the burden of proof. In states like Idaho and North Dakota, however, the law does not include express exceptions for legal abortions, but rather provides for them in the form of affirmative defenses to enforcement. By using the term affirmative defense, the state shifts the burden of proof from the state to the person charged with the crime.

Criminal Penalties

States also vary widely when it comes to the criminal penalties imposed for an illegal abortion. Depending on the state, a person may be fined anywhere from $1,000 to $100,000. In addition to monetary penalties, a provider’s license is also at risk. And, depending on the state, a person convicted of an illegal abortion may face the possibility of incarceration anywhere from a few months to life in prison, as follows:

It remains to be seen whether and under what circumstances states and courts will impose maximum sentences or penalties against convicted offenders.

Targets for Abortion Laws; Potential Aiding and Abetting Liability

Most of the laws criminalizing abortion are targeted at the providers who perform or attempt to perform an abortion, with several states, like Arkansas, Idaho, and Indiana, expressly excluding women who are pregnant from criminal liability.²⁴ Certain states, like Texas and Oklahoma, include express provisions in their statutes for civil or criminal penalties for those who aid and abet an abortion. In other states, general principles of criminal law may give rise to criminal charges for aiding and abetting, conspiring to commit a crime, or being an accessory to the crime. While such theories remain untested under these laws, it is reasonable to expect that these theories could be used to impute liability against a wide range of actors, including:

• Employers who provide travel benefits to employees for purposes of obtaining an abortion in another state where it is legal
• Employers who provide the means for an employee to obtain abortion medication outside their state of residence, but who ingest the medication in the state in which such abortion is illegal
• Health plans that cover the cost of abortion drugs or procedures
• Individual directors, officers, and other senior leadership involved in making the foregoing decisions
• Hospital administrators and clinical or nonclinical staff involved in the performance of or otherwise provide assistance in connection with an illegal abortion

There is a strong argument that the application of state laws to interfere with interstate travel would violate the interstate commerce clause of the Constitution, as highlighted by Justice Brett Kavanaugh’s concurring opinion in Dobbs, in which he answered the rhetorical question whether a state may bar its residents from traveling to another state to obtain an abortion with, “In my view, the answer is no based on the constitutional right to interstate travel.”

Nonetheless, in the short term, employers, plans, and providers should monitor state legislative activity to identify newly enacted (or revived) criminal sanctions potentially applicable to abortion-related travel. Likewise, they should also monitor state enforcement of those new and pre-Roe criminal sanctions.

Broader Implications of Criminalizing Abortion

In addition to liability under applicable state law, there are several additional, and at times competing, legal considerations that should be weighed in evaluating potential legal liability for providers and healthcare organizations:

• Other state criminal laws. In states with restrictive anti-abortion statutes, physicians may delay medical treatment of women who are pregnant out of fear of violating the relevant anti-abortion law as long as the woman’s life is not currently in danger. If the woman is hospitalized, intentionally depriving that woman of medical care while she is an inpatient and unable to seek care elsewhere may give rise to other criminal charges, such as reckless endangerment, if that woman dies as a result.
• Liability across state lines. Certain states, like Texas, are aggressively seeking to enforce abortion bans against out-of-state residents who aid or assist residents of their state in obtaining abortions, whether because such out-of-state residents helped fund travel expenses, provided abortion-related counseling via telehealth, or engaged in other activity with the intention of facilitating an abortion. States like New York and Connecticut have adopted laws that attempt to shield their residents from such liability, but those laws have not been tested by the courts.25 This is likely to be an issue that plays out in the courts as states test the limits of their ability to enforce their laws beyond their borders.
• Interaction with federal laws. Federal laws, such as EMTALA, and federal civil rights and anti-discrimination laws, may preempt certain state anti-abortion laws or narrow their application. For example, as noted above, the U.S. Department of Justice recently challenged the Idaho anti-abortion law on the basis that it conflicts with EMTALA’s requirement that emergency medical treatment must be provided to all patients of a hospital that participates in the Medicare program.
• Malpractice liability insurance. Most medical malpractice and professional liability insurance policies exclude coverage for criminal conduct. Any claims brought against the physician or hospital for medical malpractice with respect to the fetus could be excluded from coverage.
• Indemnification obligations. While it is not possible to indemnify individuals against potential imprisonment, contractual provisions and indemnification policies may exist (or be adopted) that indemnify providers, executives, directors and officers, and employees for actions taken in such capacity from certain monetary losses arising from an action brought under these statutes. These obligations may be subject to limitations, such as the requirement that the individual’s conduct was otherwise consistent with the standards of care, policies and procedures of the hospital or practice, and determined to be lawful.

Beyond the legal risks, severe penalties and vaguely drafted laws may create challenges and barriers to women’s healthcare, including, but not limited to:

• Hospitals may find it challenging to staff obstetrics departments, which may in turn reduce access to quality maternal and reproductive healthcare within the state.
• Women who are or may become pregnant may find it difficult to obtain medication for unrelated conditions such as chemotherapy, or treatment of autoimmune disorders like lupus and rheumatoid arthritis, that present or could present a risk to a pregnancy.
• Pregnant women may face new barriers to care as physicians hesitate to provide any treatment or prescribe any medication that could lead to the termination of a pregnancy.

Each of these challenges will need to be navigated in the months and years to come.

Potential Chilling Effect on Women’s Healthcare

In the period between Roe and Dobbs, states had adopted various laws restricting and limiting access to abortions, but there was at least a common baseline that created some degree of uniformity across state lines. In the wake of Dobbs, that common thread has been eviscerated, and the landscape today is subject to significant upheaval as these criminal statutes are challenged in the courts and by federal agencies. Given the rapidly evolving legal landscape, the ultimate impact of the criminalization of abortion has not yet been fully realized, but it is reasonable to expect that there will continue to be a chilling effect on measures to protect women’s health in the states where the penalties are severe, and the restrictions are broad and sweeping. 

Amanda Zablocki is a partner in the Corporate Practice Group in Sheppard Mullin’s New York office and is a member of the firm’s healthcare industry team. Amanda represents healthcare and tax-exempt organizations on a wide range of transactional, regulatory, and business matters. She advises clients in connection with complex corporate transactions, including mergers and acquisitions, joint ventures and strategic alliances, and structuring value-based healthcare arrangements. In addition, Amanda routinely advises clients on matters relating to corporate governance; federal, state, and local tax exemption; fraud, waste and abuse; Medicare/Medicaid reimbursement; voluntary disclosures; the corporate practice of medicine; and other regulatory and compliance matters.

Mikela T. Sutrina is a partner in the Labor and Employment Practice Group in the firm’s Chicago office. Mikela is a member of the firm’s Women’s Law Group National Leadership Council. Mikela defends employers in state and federal court, as well as before federal, state, and local administrative agencies in matters of discrimination, harassment, retaliation, wrongful termination, whistleblower and whistleblower retaliation actions, and breach of contract, especially as it relates to restrictive covenant agreements and misappropriation of trade secrets. Mikela advises employers on workplace issues such as compliance with all applicable federal, state, and local laws; discrimination and harassment; responding to whistleblower complaints; safety; performance management; leaves of absence; compensation; and terminations.

To find this article in Practical Guidance, follow this research path:

RESEARCH PATH: Healthcare > Transactions, Licensing, and Regulation > Articles

Related Content

1. 142 S. Ct. 2228 (2022). 2. 410 U.S. 113 (1973). 3. 505 U.S. 833 (1992). 4. Ala. Code § 26-23H-4. 5. Ark. Code Ann. § 5-61-304. 6. Idaho Code § 18-622. 7. Ind. Code Ann. § 16-34-2-1. 8. Ky. Rev. Stat. Ann. § 311.772. 9. La. Rev. Stat. Ann. § 40:1061. 10. Miss. Code Ann. § 41-41-45. 11. Mo. Rev. Stat. § 188.017. 12. N.D. Cent. Code § 12.1-31-12. 13. Okla. Stat. tit. 63, § 1-731.4. 14. S.D. Codified Laws § 22-17-5.1. 15. Tex. Health & Safety Code Ann. § 170A.002. 16. Utah Code Ann. § 76-7a-201. 17. W. Va. Code Ann. § 61-2-8. 18. Wyo. Stat. Ann. § 35-6-102. 19. See, e.g., Ark. Code Ann. § 5-61-304; Ky. Rev. Stat. Ann. § 311.772. 20. See, e.g., Ohio Rev. Code Ann. § 2919.192; S.C. Code Ann. § 44-41.680; Tenn. Code Ann. § 39-15-216; Wis. Stat. § 940.04. 21. Ky. Rev. Stat. Ann. § 311.722. 22. https://www.justice.gov/opa/press-release/file/1523481/download. 23. See Idaho Code § 18-622; Ind. Code Ann. §§ 16-18-2-327.9, 16-34-2-1(a). 24. See, e.g., Ark. Code Ann. § 5-61-304(c)(1); Idaho Code § 18-622(5); Ind. Code Ann. §§ 16-34-2-7(d)–(e), 35-42-1-6(a)(1). 25. See, e.g., N.Y. Crim. Proc. Law §§ 140.10, 570.17; H.R. (Conn.) 5414, 2022 Gen. Assemb., Feb. Sess.