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Published online by Cambridge University Press: 12 February 2024
In June 2022, in Dobbs v. Jackson Women’s Health, the U.S. Supreme Court overturned the precedent set by the 1973 decision in Roe vs. Wade, leaving access to abortion to be regulated by each state, rather than a U.S. constitutional right. Some states are setting gestational age limits, beyond which point only under certain circumstances can an abortion be obtained. Other states are banning abortion outright (regardless of gestational age) unless an “exception” is met. Certain states include an exception for abortion when a woman’s physical health is at risk if they continue the pregnancy, but, at the same time, do not provide an exception for women whose mental health is at risk (a “mental health exception”).
Mental health conditions that develop, continue, or are exacerbated during pregnancy may be manageable or treatable, and women may want to continue their pregnancy even while experiencing such conditions. However, the absence of a choice to terminate their pregnancy as a result of these mental health conditions means women who are unable to successfully manage or treat their mental health during pregnancy have no choice but to experience the impact on their mental health – and reconcile any resulting impact on the fetus.
This article will discuss the role a mental health exception plays in state abortion statutes by analyzing the impact of pregnancy on mental health and resources available to support those who experience mental health impacts during pregnancy while, simultaneously, advocating for the inclusion of a mental health exception in state abortion laws.
1 MS Code § 41-41-191 (2022).
2 597 U.S. [ ] (2022).
3 410 U.S. 113 (1973).
4 Supra note 2.
5 Id.
6 See e.g., Colorado which allows abortion at any gestational age (C.R.S. 25-6-404); New York which allows abortions up to 24 weeks gestation, after which abortions are legal if the health of the pregnant person or the pregnancy is at risk (NY Pub. Health Law 2599-BB); Mississippi which bans abortion after 15 weeks gestation except in the case of a medical emergency or severe fetal abnormality (MS Code 41-41-191).
7 Supra note 3 at 139-40.
8 Id. at 166.
9 505 U.S. 833 (1992).
10 Id. at 877.
11 579 U.S. 582 (2016).
12 June Medical Services, LLC v. Russo, 591 U.S. 1101 (2020).
13 Supra note 2.
14 Id. at 3.
15 The “rational basis” standard means “[a] law regulating abortion…is entitled to ‘a strong presumption of validity’” and “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” Id. at 77. The majority in Dobbs calls the undue burden test “unworkable” (Id. at 62) but the rational basis standard of review is the lowest standard of review for constitutional questions, as compared to an intermediate or strict scrutiny standard.
16 Supra note 3.
17 Supra note 9.
18 We expect ongoing changes to state laws governing abortion as state legislatures and citizens make decisions about what they want abortion access to look like in their states. We anticipate continued constitutional challenges to new state laws as well (see, e.g., Planned Parenthood v. SC, 2023, holding that a state law banning abortion after cardiac activity is detected is unconstitutional.)
19 MS Code 41-41-191; OK Stat. 63-1-745.5; TX Health and Safety Code 170A.001.
20 NY Pub. Health Law 2599-BB; CA HSC 123468(b)(2); CT Stat 19a-602(a); HI R.S. 453-16(c).
21 Mabel Felix et al., A Review of Exception in State Abortion Bans: Implications for the Provision of Abortion Services, KFF.org (May 18, 2023); Ala. Code 26-23H-3.
22 Lawrence B. Finer et al., Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 Persp. Sex & Repro. Health 110, 112 (2005).
23 Diana Greene Foster, The Turnaway Study: Ten Years, A Thousand Women, and the Consequences of Having – or Being Denied Access to – an Abortion (2021).
24 Maggie Kirkman et al., Reasons Women Give for Abortion: A Review of the Literature, 12 Arch. Women’s Mental Health 365 (2009).
25 Id. The study authors named these categories. See id.
26 Id. at 373.
27 Id. at 374.
28 Id. at 375.
29 Aida Torres & Jacqueline Darroch Forrest, Why Do Women Have Abortions?, 20 Fam. Planning Persp. 169 – 176, 169 (1988).
30 The inability to travel may be due to practical concerns, for example if travel is too costly, and/or would take too much time and interfere with the ability to work. The inability to travel for an abortion may also be a legal limitation. Justice Kavanaugh’s concurrence in Dobbs discusses whether a state may limit travel to another state for the purpose of seeking an abortion; he concludes that the constitutional right to travel would bar such a limitation and such travel will be permissible. Supra note 2, at 3 (Kavanaugh, concurring). The dissent articulates its concern, however, that states may prohibit women from interstate travel for the purpose of seeking an abortion. Id. at 3 (Breyer, Sotomayor, and Kagan, dissenting).
31 Lee S. Cohen et al., Relapse of Major Depression During Pregnancy in Women Who Maintain or Discontinue Antidepressant Therapy, 295 JAMA 499, 499 (2006).
32 Id. at 504.
33 Jennifer S. Haas et al., Changes in the Health Status of Women During and After Pregnancy, 20 J. Gen. Internal Med. 45, 51 (2005). Such changes include functional and physiologic changes, financial changes, and changes in mental health. Id. at 48-49.
34 Susan J. Curry et al., Interventions to Prevent Perinatal Depression: U.S. Preventive Services Task Force Recommendation Statement, 321 JAMA 580, 580 (2019).
35 L. L. Altshuler et al., The Expert Consensus Guideline Series. Treatment of Depression in Women, Postgrad. Med., Spec. No. 1-107 (2001).
36 Michal Dubovicky et al., Risks of Using SSRI/SNRI Antidepressants During Pregnancy and Lactation, 10 Interdiscip. Toxicology 30-34 (2017).
37 F Alyami & JJ Guo, EPH8 Pregnancy Outcomes of Serontonin-Norepinephrine Reuptake Inhibitors (SNRI): Analysis of FDA Adverse Event Reporting System (FAERS) Database (2012-2021), 25 Value in Health S435 (2022).
38 Sura Alwan et al., Safety of Selective Serontonin Reuptake Inhibitors in Pregnancy: A Review of Current Evidence, 30 CNS Drugs 499-515, 500-501 (2016); Dubovicky, supra note 36, at 31.
39 Alwan, supra note 38, at 504.
40 Christie A. Lancaster et al., Risk Factors for Depressive Symptoms During Pregnancy: A Systematic Review, 202 Amer. J. Obstet. & Gyn. 5-14 (2010).
41 Aleksandra Staneva et al., The Effects of Maternal Depression, Anxiety, and Perceived Stress During Pregnancy on Preterm Birth: A Systematic Review, 28 Women & Birth 179-193, 182 (2015); Dubovicky, supra note 36, at 31.
42 Heather A. Bennett et al., Prevalence of Depression During Pregnancy, 103 Obstet. & Gyn. 698, 703 (2004).
43 Dubovicky, supra note 36, at 31.
44 Zohreh Shahhosseini et al., A Review of the Effects of Anxiety During Pregnancy on Children’s Health, 27 Mater Sociomed. 200, 200 (2015).
45 Liana Deklava et al., Causes of Anxiety During Pregnancy, 205 Procedia – Soc. & Behav. Sci. 623-26, 624-25 (2015).
46 Xiu-Xiu Ding et al., Maternal Anxiety During Pregnancy and Adverse Birth Outcomes: A Systematic Review and Meta-Analysis of Prospective Cohort Studies, 159 J. Affect. Disorder 103-10, 106-08 (2014).
47 Megan McCarthy et al., Women’s Experiences and Perceptions of Anxiety and Stress During the Perinatal Period: A Systematic Review and Qualitative Evidence Synthesis, 21 BMC Pregnancy & Childbirth (2021).
48 Emma Robertson Blackmore et al., Pregnancy-Related Anxiety: Evidence of Distinct Clinical Significance From a Prospective Longitudinal Study, 197 J. Affect. Disorder 251-58, 253-55 (2016).
49 Preterm Birth, Ctrs for Disease Control (2023), https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pretermbirth.htm (last visited Jan. 10, 2023) [https://perma.cc/YFZ8-536S].
50 Birthweight and Gestation, Ctrs for Disease Control (2023), https://www.cdc.gov/nchs/fastats/birthweight.htm (last visited Jan. 10, 2023) [https://perma.cc/V22L-DJAG].
51 Low Birth Weight, WHO, https://www.who.int/data/nutrition/nlis/info/low-birth-weight (last visited Jan. 10, 2023) [https://perma.cc/YC57-ML2J]. Neurocognitive disorders include conditions such as Alzheimer’s disease or other dementias (e.g., Lewy body or vascular dementia).
52 Id.
53 Id.
54 Jill Jin, Babies with Low Birth Weight, 313 JAMA 432, 432 (2015).
55 University of Kentucky, Short and Long-Term Effects of Preterm Birth, Univ. Ky. Healthcare, https://ukhealthcare.uky.edu/wellness-community/health-information/short-long-term-effects-preterm-birth (last visited Jan. 10, 2023) [https://perma.cc/7M6B-4ET5]; Bhoomika K. Patel & Jigna S. Shah, Necrotizing Enterocolitis in Very Low Birth Weight Infants: A Systemic Review, ISRN Gastroenterol. (2012).
56 Donald R. Mattison et al., The Role of Environmental Hazards in Premature Birth: Workshop Summary, Institute of Medicine (US) Roundtable on Environmental Health Sciences, Research, and Medicine (2003).
57 Ashwini Lakshmanan et al., The Financial Burden Experienced by Families of Preterm Infants After NICU Discharge, 42 J. Perinatology 223-30 (2021); Karli Treyvaud et al., Family Functioning, Burden, and Parenting Stress 2 Years After Very Preterm Birth, 81 Early Hum. Dev. 427, 427 (2011).
58 Linda L. Dunn & Kathryn S. Oths, Prenatal Predictors of Intimate Partner Abuse, 33 J. Obstet. Gyn. & Neonat. Nurs., 54 (2004); Linda E. Saltzman et al., Physical Abuse Around the Time of Pregnancy: An Examination of Prevalence and Risk Factors in 16 States, 7 Maternal Child Health J. 31-43, 34-35 (2003); Sandra L. Martin et al., Physical Abuse of Women Before, During, and After Pregnancy, 285 JAMA 1581-84 (2001) (explaining why different studies identify different percentages); Sandra L. Martin et al., Intimate Partner Violence and Women’s Depression Before and During Pregnancy, 12 Violence Against Women 221-39, 222 (2001) (noting that the number could even be as high as seventeen percent who experience violence during pregnancy). These numbers may be even higher due to under-reporting of IPV.
59 Jacquelyn Campbell et al., Pregnancy-Associated Deaths from Homicide, Suicide, and Drug Overdose: Review of Research and the Intersection with Intimate Partner Violence, 30 J. Women’s Health (Larchmt) 236-44 (2021).
60 Linda Rose et al., Impact of Intimate Partner Violence on Pregnant Women’s Mental Health: Mental Distress and Mental Strength, 31 Issues Mental Health Nurs. 103-111 (2010).
61 Linda R. Chambliss, Intimate Partner Violence and Its Implication for Pregnancy, 51 Clin. Obstet. & Gyn. 385-97 (2008).
62 See supra note 58, citing data regarding the impact of IPV on mental health.
63 Supra note 2.
64 See, Tracking the States Where Abortion is Banned, N.Y. Times (2023), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html (last visited Jan. 12, 2023) [https://perma.cc/5JQD-KL33] (identifying at least thirteen states where abortion is banned; prior to Dobbs, abortion was a U.S. constitutional right and states could not ban it entirely. See supra note 3.).
65 Dean G. Kilpatrick, The Mental Health Impact of Rape, Nat’l Violence Against Women Prevention Rsch. Ctr. (2000), https://mainweb-v.musc.edu/vawprevention/research/mentalimpact.shtml [https://perma.cc/6EHK-PGWB].
66 Id.
67 Osman Celbis et al., Evaluation of Incest Cases: 4-Years Retrospective Study, 29 J Child Sex. Abuse 79-89 (2019).
68 Id.
69 Id.
70 Linell Smith, Glossary of Transgender Terms, Johns Hopkins Med., https://www.hopkinsmedicine.org/news/articles/glossary-of-terms-1 (last accessed Jan. 10, 2023) [https://perma.cc/5DSH-JLKK].
71 Mari Greenfield & Zoe Darwin, Trans and Non-Binary Pregnancy, Traumatic Birth, and Perinatal Mental Health: A Scoping Review, 22 Int. J. Transgender Health 203-16 (2021).
72 Heidi Moseson et al., Abortion Attempts Without Clinical Supervision Among Transgender, Nonbinary, and Gender Expansive People in the United States, 48 BMJ Sex. & Repro. Health e22-e30 (2022); Patti Verbanas, Pregnant Transgender Men at Risk for Depression and Lack of Care, Rutgers Study Finds, Rutgers (Aug. 15, 2019), https://www.rutgers.edu/news/pregnant-transgender-men-risk-depression-and-lack-care-rutgers-study-finds (last visited Jan. 10, 2023) [https://perma.cc/BBV3-V5YA].
73 See, e.g., Suzanne T. Orr et al., Racial Disparities in Elevated Prenatal Depressive Symptoms Among Black and White Women in Eastern North Carolina, 16 Annals Epidem. 463 (2006).
74 Id.
75 Id.
76 Karen A. Ertel et al., Racial Discrimination, Response to Unfair Treatment, and Depressive Symptoms Among Pregnant Black and African-American Women in the United States, 22 Annals Epidem. 840 (2012); id.
77 Shannon D. Simonovich et al., Meta-Analysis of Antenatal Depression and Adverse Birth Outcomes in U.S. Populations 2010-20, 40 Health Affairs 1560, 1560 (2021); Panagiota Kitsantas & Kathleen F. Gaffney, Racial/Ethnic Disparities in Infant Mortality, 38 J. Perinatal Med. 87, 89 (2010); Kevin Fiscella, Racial Disparity in Infant and Maternal Mortality: Confluence of Infection, and Microvascular Dysfunction, 8 Maternal Child Health J. 45, 45 (2004).
78 Simonovich, supra note 78, at 1563.
79 American Psychiatric Association, Stigma, Prejudice, and Discrimination Against People with Mental Illness, Psychiatry.org, https://www.psychiatry.org/patients-families/stigma-and-discrimination (last visited Jan. 11, 2023) [https://perma.cc/T7ZX-WQYA].
80 Ozlem Eylem et al., Stigma for Common Mental Disorders in Racial Minorities and Majorities: A Systematic Review and Meta-Analysis, 20 BMC Pub. Health 1 (2020).
81 Thea Moore & Jennifer Pytlarz, Untreated Psychiatric Disorder in Pregnancy: Weighing the Risks, 3 Mental Health Clinician 83, 83 (2013).
82 Foster, supra note 23.
83 Id.
84 Id.
85 Other arguments may be posited, such as the personhood of a fetus, the need or right of the state to protect the life and health of its citizens.
86 Health Resources & Services Administration Maternal & Child Health, Maternal Mental Health Hotline, MCHB https://mchb.hrsa.gov/national-maternal-mental-health-hotline (last visited Jan. 11, 2023) [https://perma.cc/UP6Y-8996].
87 Id.
88 See Special Supplemental Nutrition Program for Women, Infants, and Children), U.S. Dept. of Agriculture Food & Nutrition Servs., https://www.fns.usda.gov/wic (last visited Jan. 10, 2023) [https://perma.cc/QJ9W-54DN] [hereinafter WIC].
89 Stephanie Ettinger de Cuba et al., Prenatal WIC is Associated with Increased Birth Weight of Infants Born in the United States with Immigrant Mothers, 122 J. Acad. Nutrition & Dietetics 1514, 1514 (2022).
90 Id.
91 Baby Bellies & Beyond, Babies bellies & beyond (2023), https://babybelliesandbeyond.com/?v=7516fd43adaa (last visited Jan. 11, 2023) [https://perma.cc/AGX7-DJGZ].
92 Healthy Start, Health Resources & Servs. Admin (2023), https://mchb.hrsa.gov/programs-impact/healthy-start [https://perma.cc/5VPH-EWDS].
93 About Us, Nurse-Family Partnership (2023), https://www.nursefamilypartnership.org/about/ [https://perma.cc/A7KM-FP9R].
94 See, e.g., WIC, supra note 88.
95 See Rebecca J. Mercier, The Experiences and Adaptations of Abortion Providers Practicing Under A New TRAP Law: A Qualitative Study, 91 Contraception 507-512 (2015).
96 TX Health & Safety Code 170A.001.
97 Martha F. Davis, The State of Abortion Rights in the U.S., 159 Int. J. Gyn. & Obstet. 324-329, 325-26 (2022); CA HSC 123468(b)(2).
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