From Medical Exceptions to Reproductive Freedom

Authors

David S. Cohen, Drexel Kline School of LawFollow
Greer Donley, University of Pittsburgh School of LawFollow

Abstract

Since the Supreme Court overruled Roe v. Wade in 2022, there has been a significant focus on pregnancy complications. This focus has created some risks. Highlighting medically indicated abortion stories could stigmatize the vast majority of abortion seekers who lack medical reasons for abortion and result in narrow remedies that do nothing to undermine abortion bans. This Article presents a way to convert these risks into an opportunity: to use pregnancy complications as a wedge to challenge abortion bans more generally and make abortion more accessible for everyone. We present a long-term strategy to dismantle abortion bans, using several legal theories surrounding pregnancy complications to show that abortion bans are inherently vague, religiously discriminatory, and arbitrary. We then zoom out and show that pregnancy complication cases reveal that Dobbs itself is unworkable and must be overturned. Though the current Supreme Court is unlikely to adopt the theories we describe, there is already evidence that state and lower federal courts are open to them. Moreover, legal losses have the potential to sway public attitudes by revealing how all abortions are health-saving.

Recommended Citation

David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. 391 (2025).
Available at: https://repository.law.umich.edu/mlr/vol124/iss3/2