Abortion Ballot Fights Revive Mental Health Exception Debates

State fights over abortion rights ballot measures are spurring debates over mental health in pregnancy and whether an individual’s psychological condition can be used to justify abortion care.

Abortion will be on the ballot this fall in at least eight states, with work still underway in three others for inclusion in November.

The proposed measures in Arizona and Missouri would permit abortions before fetal viability, or roughly 24 weeks, and afterward in situations where a health-care professional determines it’s necessary to “protect the life or physical or mental health of the pregnant” person. Other ballot measures would ensure access after viability to protect the patient’s life or health.

Anti-abortion groups have long criticized mental health exceptions and claim this year’s petitions would open the door to abortions for virtually any reason. Providers and policy analysts attribute this to lingering stigma around mental health conditions, adding that courts could soon be forced to consider how mental health is viewed in abortion rights laws.

Clarification on this is especially important, health professionals and researchers say, as the Centers for Disease Control and Prevention has reported mental health conditions make up more than 20% of pregnancy-related deaths in the US.

“It’s an intersection of mental health, which is stigmatized, and abortion care, which is stigmatized, so the combination of the two often makes it challenging for people who are needing both services,” said Laurie Sobel, associate director for women’s health policy at KFF.

The US Supreme Court said in Doe v. Bolton, a 1973 companion case to Roe v. Wade, that a physician should consider all aspects of a pregnant person’s health when determining whether an abortion is needed, including “physical, emotional, psychological, familial, and the woman’s age.”

Conservative justices on the high court, however, questioned if the term includes mental health exceptions while deliberating a case, Moyle v. United States, over whether an Idaho abortion ban conflicted with federal emergency care requirements for the procedure.

Following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to abortion, 14 states have implemented bans or restrictions explicitly excluding mental or emotional health as exceptions, with five additional states limiting exceptions to the life or physical health conditions without any mention of mental health.

Measuring Health

Abortion providers and psychologists say mental health should be included in measuring a patient’s overall health and well being, but existing abortion restrictions largely miss that.

Mental health “comes up for people who are pregnant or seeking abortion care, just as it does with all of my primary care patients,” said Libby Wetterer, a Pennsylvania-based family medicine physician and abortion provider.

“Knowing that anyone who has anxiety or depression during pregnancy, I always talk to them that they’re much more at risk for postpartum depression and mood disorders,” Wetterer, who is also a fellow at the medical advocacy group Physicians for Reproductive Health, said in an interview.

The lack of access to abortion care among patients with mental health conditions can also be detrimental in the long-term, Wetterer said, pointing to widely cited research in 2017 from the Turnaway Study, which assessed women’s psychological well-being five years after receiving or being denied an abortion. It found that women denied abortion reported more anxiety symptoms, lower self esteem, and lower life satisfaction when compared with those who received abortion care.

The American Psychological Association, the main professional organization of psychologists in the US, has said a lack of access to abortion can have long-term mental health implications, with disproportionate impacts on low-income individuals, people of color, and those living in rural or other medically underserved areas.

The National Right to Life Committee, which has helped pass anti-abortion legislation across the country, maintains that the only abortion exception should be to “prevent the death of the mother and for physical medical emergencies.” The group said in an emailed statement that it specifically excludes mental health exceptions, arguing this “creates a loophole in the law that leaves the unborn child at risk of dying for treatable and sometimes temporary conditions like anxiety and depression.”

Wetterer took issue with this position, saying that while mental health conditions may be treatable in some cases, “many people deal with lifelong, very severe and at times, life threatening anxiety and depression.”

Ballot Issues

Abortion ballot measures are awaiting final certification in Montana and Nebraska, and an effort in Arkansas is under state Supreme Court review. Abortion rights petitions have already been certified in Arizona, Colorado, Florida, Maryland, Missouri, Nevada, New York, and South Dakota.

In Arizona, an opposition campaign called It Goes Too Far says “mental health” is too broad an exemption to allow for abortion after 24 weeks of pregnancy. Cindy Dahlgren, a spokesperson for the campaign, said in an interview that the definition of health in Doe could be used to cover situations beyond serious mental health conditions.

“We can all have compassion for a situation where the woman’s mental health is at risk, but that’s not what we’re talking about here,” Dahlgren argued, claiming “it pretty much opens the door and allows post fetal viability abortion for virtually any reason.”

Sobel argued the mental health or other health qualifications can sometimes be limiting for health-care providers, leaving it open to interpretation when a specific scenario may qualify for a health exception under the law.

Alabama is the only state that includes a mental health exception in its abortion ban, but requires a psychiatrist to diagnose the pregnant person with a “serious mental illness,” and document the likelihood the patient will engage in life-threatening behavior.

Besides Arizona and Missouri, many of the remaining ballot initiatives that have either been confirmed for the ballot or are awaiting certification would allow abortion after viability if a health-care professional determines it’s necessary to protect the life or health of the pregnant patient. The measure in Arkansas restricts the exemption to “protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury.”

But for abortion ballot measures that use “health of the pregnant patient,” that would probably have to be defined by courts, Sobel said.