Are Physicians at Risk for Performing Abortions Permitted Under Exceptions to State Laws Prohibiting Abortion? What the Record Shows

Paul Benjamin Linton*

On June 24, 2022, the Supreme Court, in Dobbs v. Jackson Women’s Health Organization,¹ overruled Roe v. Wade² and Planned Parenthood v. Casey³ and returned the issue of abortion to the states.⁴ Dobbs allows states to enact and enforce statutes prohibiting abortion.⁵ In response, dozens of lawsuits have been filed in state courts challenging these statutes, most of which remain in effect as of this writing.⁶ While lawsuits have been brought in an effort to establish a broad state constitutional right to abortion,⁷ they also have been brought asserting that the statutes are unconstitutionally vague.⁸ Physicians in these cases claim that they do not understand under what circumstances abortions are permitted under the applicable law, as a result of which they are unwilling to risk criminal prosecution and/or professional discipline for performing any abortions, even those that may fall within the scope of an exception for the pregnant woman’s life or physical health.⁹ How plausible are these claims?¹⁰

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*Paul Benjamin Linton is an attorney in private practice in Illinois who specializes in state and federal constitutional appellate litigation and legislative consulting. Mr. Linton, the former General Counsel for Americans United for Life, has submitted amicus curiae briefs in several Supreme Court abortion cases, including Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). Mr. Linton has published more than thirty law review articles on a variety of topics, as well as the only comprehensive analysis of abortion as a state constitutional right. PAUL BENJAMIN LINTON, ABORTION UNDER STATE CONSTITUTIONS: A STATE-BYSTATE ANALYSIS (3d ed. 2020). Mr. Linton received his law degree from Loyola University Chicago.

1 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

2 Roe v. Wade, 410 U.S. 113 (1973), overruled by, Dobbs, 142 S. Ct. 2228.

3 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), overruled by, Dobbs, 142 S. Ct. 2228.

4 Dobbs, 142 S. Ct. at 2284.

5 Id. at 2243.

6 See Maura K. Quinlan & Paul Benjamin Linton, Medically Necessary Abortions After Dobbs: What, If Anything, Has Changed?, 39 NOTRE DAME J.L. ETHICS & PUB. POL’Y 87, 90–91, 91 n.23 (2025).

7 See, e.g., Planned Parenthood Great Nw. v. State, 532 P.3d 801 (Idaho 2022); Members of Med. Licensing Bd. v. Planned Parenthood Great Nw., Inc., 211 N.E.3d 957 (Ind. 2023); Members of Med. Licensing Bd. v. Planned Parenthood Great Nw., Inc., 214 N.E.3d 348, 348 (Ind. 2023) (mem.) (Rush, C.J., concurring); Wrigley v. Romanick, 988 N.W.2d 231 (N.D. 2023); Okla. Call for Reprod. Just. v. Drummond, 526 P.3d 1123 (Okla. 2023) (per curiam); Planned Parenthood S. Atl. v. State, 892 S.E.2d 121 (S.C. 2023); State v. Zurawski, 690 S.W.3d 644 (Tex. 2024).

8 See infra Appendix A (listing state court challenges alleging vagueness). In none of the cases listed has a state supreme court struck down an abortion statute on vagueness grounds. See, e.g., Planned Parenthood Great Nw., 522 P.3d 1132, 1200–09 (Idaho 2023) (rejecting vagueness challenge); Okla. Call for Reprod. Just., 526 P.3d at 1131–32 (same); Planned Parenthood S. Atl., 892 S.E.2d at 130 n.8 (same).

9 Whether the exceptions in abortion prohibitions now on the books are vague or, properly understood, prevent physicians from performing medically necessary abortions is the subject of another article. See Quinlan & Linton, supra note 6. The present Article focuses on whether there is any evidence in either caselaw (pre-Roe) or abortion reporting data (post-Roe) that physicians have ever been prosecuted or disciplined for performing an abortion that falls within the scope of an exception (or affirmative defense) to a prohibition.

10 Although examination of the specific vagueness claims raised in these cases lies outside the scope of this Article, it should be noted that the overwhelming majority of both state and federal pre-Roe decisions (fourteen out of eighteen cases) rejected vagueness challenges to abortion statutes, finding the statutes to be clear with respect to what conduct was allowed by the applicable exception (life of the mother). See Nelson v. Planned Parenthood Ctr. of Tucson, Inc., 505 P.2d 580, 584–85 (Ariz. Ct. App.), vacated and modified on reh’g, 505 P.2d 590 (Ariz. Ct. App. 1973); People v. Fulton, 228 N.E.2d 203, 204–05 (Ill. App. Ct. 1967); Cheaney v. State, 285 N.E.2d 265, 270–72 (Ind. 1972); State v. Abodeely, 179 N.W.2d 347, 354 (Iowa 1970); Sasaki v. Commonwealth, 485 S.W.2d 897, 900–01 (Ky. 1972), vacated and remanded, 410 U.S. 951 (1973) (mem.); Rodgers v. Danforth, 486 S.W.2d 258, 259 (Mo. 1972) (en banc); State v. Munson, 201 N.W.2d 123, 127 (S.D. 1972), vacated and remanded, 410 U.S. 950 (1973) (mem.); Thompson v. State, 493 S.W.2d 913, 917–20 (Tex. Crim. App. 1971), vacated and remanded, 410 U.S. 950 (1973) (mem.); State v. Bartlett, 270 A.2d 168, 170–71 (Vt. 1970); Abele v. Markle, 342 F. Supp. 800, 801 n.4a (D. Conn. 1972), vacated and remanded, 410 U.S. 951 (1973) (mem.); Crossen v. Att’y Gen., 344 F. Supp. 587, 590 (E.D. Ky. 1972), vacated and remanded, 410 U.S. 950 (1973) (mem.); Steinberg v. Brown, 321 F. Supp. 741, 745 (N.D. Ohio 1970); Doe v. Rampton, No. 234-70, slip op. at 4–6 (D. Utah Sep. 29, 1971), vacated and remanded, 410 U.S. 950 (1973) (mem.); Babbitz v. McCann, 310 F. Supp. 293, 297–98 (E.D. Wis. 1970) (per curiam). But see People v. Belous, 458 P.2d 194, 197–206 (Cal. 1969) (in bank) (declaring law unconstitutional on vagueness grounds); State v. Barquet, 262 So. 2d 431, 434–38 (Fla. 1972) (same); Doe v. Scott, 321 F. Supp. 1385, 1388–89 (N.D. Ill. 1971) (same), vacated and remanded sub nom., Heffernan v. Doe, 410 U.S. 950 (1973) (mem.); Roe v. Wade, 314 F. Supp. 1217, 1223 (N.D. Tex. 1970) (same), aff’d in part, rev’d in part, 410 U.S. 113 (1973), overruled by, Dobbs, 142 S. Ct. 2228. Modern abortion statutes have been drafted with much more precision than the pre-Roe, life-of-the-mother statutes. See Quinlan & Linton, supra note 6, at 119–21, 120 n.189.