Those who are dedicated to eradicating safe and legal abortions keep telling us that their bans aren't the moral, medical, and social atrocities that their bans clearly are. Every time we hear of another woman whose miscarriage became a physically and psychologically torturous ordeal, or another woman's preventable death, abortion ban enthusiasts make excuses and vainly insist that their pet policies had absolutely nothing whatsoever to do with the harms visited upon these women.
By far, abortion ban defenders’ favored defensive move is to point out that every abortion ban contains a ‘life of the patient’ exception. This exception, the abortion banistas insist, “protects” the pregnant person’s life.
For example, the Charlotte Lozier Institute (CLI) - an arm of the anti-rights group SBA Pro-Life - maintains a page advantageously describing the ‘life of the patient’ exception contained in each state's ban, which CLI periodically reposts on social media, usually in the wake of news that another person has been harmed by an abortion ban. On this page, titled “Pro-Life Laws Protect Mom and Baby: Pregnant Women’s Lives are Protected in All States,” CLI says that each Ban State “permits abortion… when it is necessary to save the life of a pregnant woman.”
The presence of a ‘life of the patient’ exception in these states’ bans is presented as if this exception were a statutory protection safeguarding the lives of pregnant people. — This claim is the subject of this article. Let's dive in…
Allowances Vs. Protections
Let's get one thing straight: Exceptions are allowances—not protections. A statutory protection safeguards something. It enforces. It has teeth. An allowance is a fragile, discretionary, political concession. It is revocable, subject to the changing whims and interpretations of those in power. It has no teeth.
The ‘life of the patient’ exception is a statutory allowance granted to medical providers by the State. Ultimately, “whether an abortion was legal is still up to prosecutorial and judicial discretion.”1 Hence, the ‘life of the patient’ exception allows medical providers to perform an abortion that is necessary to save a pregnant patient’s life, with the understanding that doing so has the potential to trigger a criminal investigation.
The exception does not require the doctor to perform an abortion that is necessary to save the pregnant patient’s life.
The exception does not establish legal liability - neither civil nor criminal - for failure to perform an abortion that would have saved a pregnant patient’s life.
The exception does not even apply to all patients for which an abortion is necessary to save their lives.
The exception merely allows a doctor to save some pregnant patient’s lives if the doctor so wishes, and if the doctor (and the hospital's attorney) is confident that a criminal investigation will not afterwards ensue.
In other words, the ‘life of the patient’ exception says to healthcare providers, “Eh, I guess you can save her life, if you really feel like it. We probably won’t prosecute you for it—but maybe we will.” That’s an allowance—not a protection.
A Necropolitical Regime
When the U.S. Supreme Court ruled, in 2022, that “a State can always force a woman to give birth… despite [the Constitution’s] guarantees of liberty and equality for all,”2 the conservative-dominated Court “decided that true sovereignty belongs only to those who were considered sovereign by the drafters of the Constitution and of the Fourteenth Amendment.”3 In so doing, the Supreme Court transformed American constitutional law into necropolitics.4
Necropolitics is the term used by historian and philosopher Achille Mbembe to describe regimes invested with the power “to define who matters and who does not, who is disposable and who is not.”5
Under a necropolitical regime, the government sorts the population in those who are sovereign and those who are not (called others).6
The sovereign’s life, well-being, autonomy and physical integrity, and safety are valued.7 Sovereigns can defend themselves from bodily harm with lethal force. The beliefs and values of the dominant group of sovereigns are privileged by the government and may be forced upon the broader populace.
The segments of the population deemed to be others, however, are without personal sovereignty. They have no power to determine their proximity to death. Rather, others are afforded fewer rights and protections; are unequally regulated; and are actively exposed to suffering, the risk of premature death, danger, and abandonment by the State,8 “rendering their existence fundamentally precarious and contingent upon the whims of” the government.9
A necropolitical regime holds the power over life and death, and it makes some people live under conditions where harm or exposure to harm is built in. In other words, a necropolitical government does not merely regulate people; it actively pushes people into extreme vulnerability.10
When the U.S. Supreme Court decided that “sovereignty belongs only to those who were considered sovereign by the drafters of the Constitution and of the Fourteenth Amendment,” it allowed states to enact their own necropolitical regimes that leave pregnant people, including children, “at the mercy of the death, injury, and other suffering inflicted by” forced gestation and childbirth, hesitant medicine, risky procedures and non-standard care, and the changing whims of the State and those deemed sovereigns.11
Hence, for those who are or who may become pregnant, to live under an abortion ban is to live in a necropolitical zone. — And to live in a necropolitical zone “is to be constantly reminded that your life is not truly your own, but a precarious existence allowed only by the temporary whim of power.”12
Some of You May Die
“Some of you may die—but it's a sacrifice I'm willing to make.” This line, spoken by the evil Lord Farquaad in the 2001 movie Shrek, captures the necropolitical State's attitude toward those designated others—those the state is willing to sacrifice and expose to suffering, danger, abandonment, and death.
“The inevitable consequence of blocking people from ending their pregnancies is that pregnancy ends people’s lives.”13
The ‘life of the patient’ exception is part of a necropolitical regime wherein State power determines access to life-saving healthcare. This is most evident in the fact that some people are explicitly excluded from this exception.
For example, of all the Ban States, only one (Alabama) allows medical providers to perform abortions necessary to save the lives of people with mental health disabilities. What's more, in the majority of Ban States the ‘life of the patient’ exception explicitly excludes mental health conditions — thus marking these patients’ lives as unworthy of saving.
Mental health conditions are a leading cause of pregnancy-related deaths.14 Yet, necropolitical governments grants no allowance to medical providers to save the lives of those with mental health disabilities, “putting[] those with mental health conditions in danger[] by denying them care.”15
As this example illustrates, the ‘life of the patient’ exception is not a statutory protection safeguarding the lives of pregnant people. It is a fragile, discretionary, and exclusionary allowance.
As an allowance, the ‘life of the patient’ exception has no teeth. It's a political concession, begrudgingly given to medical providers so that forced birth politicians and activists can protect conservatives’ electoral odds by passifying the public with false guarantees of life-saving healthcare. It's a P.R. tool, employed by abortion ban defenders to shift the blame for the horrors their pet policy produces onto others. And as a mere allowance, it can be taken away or narrowed to exclude more and more patients.
Deemed others by the necropolitical State, pregnant patients have no power to determine their proximity to death. Rather, they are afforded fewer rights and protections; are unequally regulated; and are actively exposed to suffering, the risk of premature death, and medical abandonment at the behest of the State, “rendering their existence fundamentally precarious and contingent upon the whims of” the government
When the State dictates who may live, who must die, and who is exposed to the risk of death, “the very essence of human dignity is under siege, and death is no longer a natural end but a political tool.”16
Mary E. Fleming, The Ethics of Abortion Ban Exceptions: Is the “Life-Threatening” Exception Threatening Lives?, 107 MINN. L. REV. HEADNOTES 126 (2023). Available at: https://scholarship.law.umn.edu/mlr-headnotes/vol107/iss2/2
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2318–19 (2022).
Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
Achille Mbembe, Necropolitics, in 15(1) Public Culture 11, 27 (Libby Meintjes trans.) (2003).
Franks, M. A. (2023). The Supreme Court as death panel: The necropolitics of Bruen and Dobbs. New York University Law Review, 98(6), 1881–1932. NYU Law Review
7a) Beck, E., Seelman, K., Charania, M., Snyder, S. M., & Saffan, S. (2024). Reproductive Justice, Bodily Autonomy, and State Violence. Affilia, 39(3), 554-568. https://doi.org/10.1177/08861099231225226
7b) Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
8a) Beck, E., Seelman, K., Charania, M., Snyder, S. M., & Saffan, S. (2024). Reproductive Justice, Bodily Autonomy, and State Violence. Affilia, 39(3), 554-568. https://doi.org/10.1177/08861099231225226
8b) Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
8c) Achille Mbembe in ethnic studies. Fiveable. (n.d.). https://fiveable.me/hs-ethnic-studies/key-terms/achille-mbembe
Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
Achille Mbembe in ethnic studies. Fiveable. (n.d.). https://fiveable.me/hs-ethnic-studies/key-terms/achille-mbembe
Franks, Mary Anne, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs (August 12, 2023). GWU Law School Public Law Research Paper, 98 NYU L. Rev. 1881 (2023), Available at SSRN: https://ssrn.com/abstract=5913025 or http://dx.doi.org/10.2139/ssrn.5913025
Philosopheasy. (2026, January 21). The shadow of sovereignty. https://www.philosopheasy.com/p/the-shadow-of-sovereignty
Dennie, M. K. (2026, October 2). Tierra Walker’s death was preventable. the conservative legal movement made it predictable. Balls and Strikes. https://ballsandstrikes.org/law-politics/tierra-walker-abortion-texas-ban/
Hemstad, M. (2026, May 25). Key takeaways from the latest CDC data on pregnancy-related deaths - maternal mental health leadership alliance. MMHLA. https://www.mmhla.org/articles/key-takeaways-from-the-latest-cdc-data-on-pregnancy-related-deaths
Powell, R. M. (2024, December). Disabling abortion bans | UC davis law review. UC Davis Law Review . https://lawreview.law.ucdavis.edu/archives/58/2/disabling-abortion-bans
Philosopheasy. (2026, January 21). The shadow of sovereignty. https://www.philosopheasy.com/p/the-shadow-of-sovereignty
That is so morally despicable. How these people sleep at night or even live with themselves is incomprehensible.