Objectives Standard of Medical Judgment: A Myth of (Texas) Abortion Law
Abraham Graber, Mackenzie Peterson, and Ethan Detrick, The Ohio State University
Dobbs v. Jackson returned authority over abortion to the states, some of which have since restricted abortion access while others have enshrined additional protections for abortion access. In nearly all states, abortion remains legally permissible when deemed necessary to protect the life or health of the pregnant patient. State laws regarding abortion access differ, not only with regard to whether they restrict or protect abortion access, but also with regard to the legal standard that is used to determine whether an abortion would protect the life or health of a pregnant patient. In particular, some states, e.g., Ohio, rely on a so-called “subjective standard” while other states, e.g., Texas, rely on a so-called “objective standard.” Taking Texas’s Human Life Protection Act as a case study, this paper argues that laws relying on an “objective” standard of medical judgment fundamentally misrepresent the nature of medical practice.
In America jurisprudence, a subjective standard depends on the decision-maker’s actual state of mind, while an objective standard measures conduct by what a hypothetical “reasonably prudent” individual would do. Comparing Ohio’s subjective approach with Texas’s objective one illustrates the distinction. Ohio’s constitution refers to “the professional judgment of the pregnant patient’s treating physician,” thereby leaving the determination of the clinical necessity of an abortion up to individual healthcare providers. By contrast, Texas holds that abortion access (after fetal heartbeat) is only legal if, “in the exercise of reasonable medical judgment” the abortion is necessary to prevent the patient’s death or “substantial impairment of a major bodily function.” Reasonable medical judgment is, in turn, understood as the judgment of “a reasonably prudent physician.” The “reasonably prudent physician” is a hypothetical physician with the “degree of skill and learning commonly possessed by members of the medical profession.” Thus, while in Ohio the actual judgment of the treating physician is adequate to render an abortion (after fetal viability) legally permissible, in Texas what matters is not the actual judgment of an actual physician, but rather the judgment of a hypothetical “average” physician.
Contra Texas law, we argue that, in the relevant cases, medical judgment often cannot be assessed via an objective standard that stands agnostic with respect to particular content-full moralities (religious, secular, or otherwise). Two hypothetical case studies—Blood Transfusion and Necrotic Hand—illustrate this point. In each, decisionally capacitated patients request interventions involving moral and medical uncertainty. Equally skilled physicians might reach opposite judgments about appropriate care, not because of differing evidence, but because of divergent value commitments. Such disagreements are not mere examples of “clinical equipoise,” where multiple options are medically acceptable; they are conflicts rooted in incompatible moral reasoning. The idea of a single “reasonable physician” capable of representing all such perspectives is, therefore, incoherent.
Our paper applies this framework to Texas’s Human Life Protection Act, which permits abortion only when “reasonable medical judgment” finds that pregnancy poses a “serious risk of substantial impairment of a major bodily function” or constitutes a “life-threatening condition.” Because neither “serious risk” nor “substantial impairment” is defined, physicians must interpret them through the lens of their own moral and professional commitments. We illustrate this through the example of a pregnant patient with gestational diabetes. Depending on how a physician interprets risk statistics, patient circumstances, and fetal moral status, the same case could be judged either medically necessary or legally prohibited. Such variation reveals deep ambiguity in the law, likely rendering it unconstitutional.
Even judgments about “life-threatening conditions” are subjective. Drawing on Richard Rudner’s argument that scientific reasoning always involves moral judgments about acceptable risk, we argue that determining whether a condition is “life-threatening” depends on a physician’s moral tolerance for error. Two physicians—one who believes in fetal personhood and another who does not—may reach opposing conclusions even when evaluating identical evidence. Only in cases of overwhelming empirical clarity can such decisions be governed by an objective standard.
Texas’s objective legal standard rests on a misunderstanding of medicine itself. By assuming that medical judgment can be reduced to neutral science, Texas law ignores the inescapable subjectivity at the heart of clinical reasoning. The result is profound ambiguity and a failure to provide constitutionally adequate guidance to physicians. States like Ohio, which adopt subjective standards that respect the treating physician’s judgment, better align with the epistemic and ethical realities of medical practice.
In America jurisprudence, a subjective standard depends on the decision-maker’s actual state of mind, while an objective standard measures conduct by what a hypothetical “reasonably prudent” individual would do. Comparing Ohio’s subjective approach with Texas’s objective one illustrates the distinction. Ohio’s constitution refers to “the professional judgment of the pregnant patient’s treating physician,” thereby leaving the determination of the clinical necessity of an abortion up to individual healthcare providers. By contrast, Texas holds that abortion access (after fetal heartbeat) is only legal if, “in the exercise of reasonable medical judgment” the abortion is necessary to prevent the patient’s death or “substantial impairment of a major bodily function.” Reasonable medical judgment is, in turn, understood as the judgment of “a reasonably prudent physician.” The “reasonably prudent physician” is a hypothetical physician with the “degree of skill and learning commonly possessed by members of the medical profession.” Thus, while in Ohio the actual judgment of the treating physician is adequate to render an abortion (after fetal viability) legally permissible, in Texas what matters is not the actual judgment of an actual physician, but rather the judgment of a hypothetical “average” physician.
Contra Texas law, we argue that, in the relevant cases, medical judgment often cannot be assessed via an objective standard that stands agnostic with respect to particular content-full moralities (religious, secular, or otherwise). Two hypothetical case studies—Blood Transfusion and Necrotic Hand—illustrate this point. In each, decisionally capacitated patients request interventions involving moral and medical uncertainty. Equally skilled physicians might reach opposite judgments about appropriate care, not because of differing evidence, but because of divergent value commitments. Such disagreements are not mere examples of “clinical equipoise,” where multiple options are medically acceptable; they are conflicts rooted in incompatible moral reasoning. The idea of a single “reasonable physician” capable of representing all such perspectives is, therefore, incoherent.
Our paper applies this framework to Texas’s Human Life Protection Act, which permits abortion only when “reasonable medical judgment” finds that pregnancy poses a “serious risk of substantial impairment of a major bodily function” or constitutes a “life-threatening condition.” Because neither “serious risk” nor “substantial impairment” is defined, physicians must interpret them through the lens of their own moral and professional commitments. We illustrate this through the example of a pregnant patient with gestational diabetes. Depending on how a physician interprets risk statistics, patient circumstances, and fetal moral status, the same case could be judged either medically necessary or legally prohibited. Such variation reveals deep ambiguity in the law, likely rendering it unconstitutional.
Even judgments about “life-threatening conditions” are subjective. Drawing on Richard Rudner’s argument that scientific reasoning always involves moral judgments about acceptable risk, we argue that determining whether a condition is “life-threatening” depends on a physician’s moral tolerance for error. Two physicians—one who believes in fetal personhood and another who does not—may reach opposing conclusions even when evaluating identical evidence. Only in cases of overwhelming empirical clarity can such decisions be governed by an objective standard.
Texas’s objective legal standard rests on a misunderstanding of medicine itself. By assuming that medical judgment can be reduced to neutral science, Texas law ignores the inescapable subjectivity at the heart of clinical reasoning. The result is profound ambiguity and a failure to provide constitutionally adequate guidance to physicians. States like Ohio, which adopt subjective standards that respect the treating physician’s judgment, better align with the epistemic and ethical realities of medical practice.