Mental health exceptions a point of contention for abortion rights, antiabortion movements

A debate erupts over whether to include mental health exceptions for situations in which abortion is otherwise banned

Before Roe v. Wade, mental health exceptions for abortions were commonly part of laws limiting abortion access to women who needed them. Abortion-seekers had to get psychiatric approval from multiple therapists or had to go before a hospital board to be permitted to have an abortion.

Now, with that precedent overturned, abortion rights activists and their opponents in the antiabortion movement have debated whether mental health exceptions should be part of laws t that determine when and where abortions would be legal. 

Advocates on the pro-choice side have pointed out that mental health is the cause of a quarter of pregnancy-related deaths. Michelle Oberman, a law professor at Santa Clara University, spoke to me about how the regulations worked pre-Roe and how they would work now. She recently published an article in Slate that she told me to share in this newsletter. 

“What we lacked then and still lack now is a sophisticated, evidence-based, data-driven understanding of what it means for a pregnancy to jeopardize maternal health,” Oberman said. “Instead, what we have is a lot of conjecture that's not informed by the practice of medicine.” 

Antiabortion activists argue that the mental health exception would be abused and used as a reason to justify any abortion that they wanted.  They’re willing to force women, regardless of the consequences, to carry pregnancies to term when their mental health rather than their physical health is at stake.

Second-wave feminists criticized mental health exceptions because they favored wealthy women who were able to get psychiatric approval. 

One of the women I interviewed for my forthcoming book was Sherri Chessen, who, in the early 1960s, took Thalidomide during her pregnancy, which led to fetal deformities. During her efforts to get an abortion, she had to visit two psychiatrists to get approval. Because she couldn’t get two to agree, she eventually had to visit Europe to get the reproductive care she needed. The abortion made international headlines and galvanized the abortion rights movement. 

In Oberman’s piece in Slate, she gave the example of a doctor who quit their job at a prison because they watched a prisoner who had mental health challenges carry her pregnancy through the eighth month. She thinks that antiabortion advocates want to hospitalize women who are in those circumstances while having them continue with the pregnancy. Oberman said that’s the quiet part they’re not saying out loud. 

“What they're saying is, ‘we think there must be less restrictive means of responding to them than allowing an abortion,’” Oberman said. “So what they're saying is, ‘Yeah, we’re gonna lock people up and force them to endure pregnancy.’”

Another person I spoke to was Dr. Paul Applebaum, a professor at Columbia University's Department of Psychiatry who has also written and spoken about mental health exceptions for abortion. He said that some mental health conditions can go far beyond anxiety if they’re forced to carry an unwanted pregnancy. Suicide is a possibility.

“We're talking about conditions that can not only be extremely stressful but can escalate to the point where they're actually life-threatening,” Applebaum said. 

Poorer women would have a more difficult time passing through exceptions as they can’t afford a doctor, Applebaum said. 

Appleabum thinks mental health threats shouldn’t be treated any differently than physical health threats. To do otherwise perpetuates the prejudice toward mental health disorders that they’re not as serious as those that challenge physical health. 

“Those discriminatory attitudes clearly play a role in these statutes, which just overtly say you can have an exception for a physical health threat but not a threat that's based on a mental disorder,” Applebaum said.