As she was wheeled into surgery, Amber Thurman said to her mother, \u201cPromise me you\u2019ll take care of my son.\u201d She was suffering a rare complication from the abortion pill that she was legally prescribed at nine weeks of pregnancy. Not all of the fetal tissue had been expelled, and, as a result, she needed a dilation and curettage procedure routinely used in miscarriages and nonviable pregnancies to remove the remaining tissue.<\/p>\n\n\n\n
But when she arrived at Piedmont Henry Hospital in Stockbridge, Georgia, physicians refused to perform the abortion. Instead, they spent the next nineteen hours worrying about their criminal liability in performing such a procedure after the state\u2019s abortion ban took effect, which only allowed abortions after six weeks of pregnancy in situations where the mother\u2019s health or life necessitated one.<\/p>\n\n\n\n
Messiah, Amber\u2019s son, was only six years old at the time. But one day, he will be older. He will grow up, and he will learn what ensued in the hours leading up to his mother finally receiving the surgery she so desperately needed. He will learn that his mother arrived at the hospital after experiencing vaginal bleeding, vomiting blood, and falling unconscious. He will learn that rather than perform the necessary abortion procedure, doctors merely gave her antibiotics. He will learn that even when his mother developed acute severe sepsis, her doctors would not operate. Instead, they let the hours tick by steadily, while his own mother\u2019s breathing labored so unsteadily. He will learn that after those long nineteen hours, doctors finally began to operate and remove not only the remaining fetal tissue, but her uterus as well. He would never have any siblings\u2014not because his mother had been forcefully sterilized due to receiving delayed treatment, but because her heart stopped during the operation.<\/p>\n\n\n\n
In 2022, the Supreme Court in Dobbs v. Jackson Women\u2019s Health Organization<\/em> overruled Roe v. Wade<\/em> and held that there is no longer a constitutional right to abortion. As a result, states immediately began signing into law draconian abortion bans, greatly restricting women\u2019s access to medical treatment. Amber Thurman\u2019s death was the first deemed preventable under these modern-day abortion bans. A second Trump presidency threatens reproductive rights and maternal health care in ways that may reverberate for decades to come. It is thus more important now than ever to understand how practitioners may challenge the legality of state abortion bans even in the aftermath of Dobbs<\/em>. The following analysis aims to identify an overlooked legal strategy for reproductive justice and the dismantling of state abortion bans that threaten the fertility and lives of women across the United States.<\/p>\n\n\n\n This Note argues that state abortion bans with exceptions only for circumstances when the mother\u2019s life or health is at risk violate the substantive due process right to procreate, as articulated in Skinner v. Oklahoma ex rel. Williamson. These stringent abortion bans chill physicians from acting for fear of facing criminal liability. As a result, physicians delay performing necessary abortions, leading women to receive care too late and suffer impaired fertility, sterilization, or even death.<\/p>\n\n\n\n