In June 2022, the United States Supreme Court decided two unrelated cases implicating the use of criminal liability to regulate actions taken by doctors in the ordinary course of their practice. Both cases involved highly charged issues that have lingered for decades. The first and more noteworthy, Dobbs v. Jackson Women’s Health Organization,
dismantled the federal constitutional right to an abortion set out in Roe v. Wade and its progeny.
The Court’s conclusion that there is no constitutionally protected right to an abortion allows individual states to regulate the practice, and there has since been a frenzy of state legislative activity criminalizing abortions in circumstances in which abortions had previously been protected.
Those state laws prohibiting abortions vary widely, but all provide an emergency exception in some form to permit abortions “necessary” to protect the life or health of the pregnant person.
The vagueness of that exception and the imprecise judgment required to apply it create considerable concern among abortion providers, who fear criminal exposure from the exercise of their medical discretion.
Moving forward, the scope of criminal liability for providers in the abortion context will rest in part on how the mens rea requirements of the various state statutes are codified and construed.
Two days after announcing Dobbs, the Supreme Court decided Ruan v. United States, which unanimously put to rest conflicting interpretations of the mens rea requirement of § 841 of the Controlled Substances Act (CSA).
That federal statute prohibits prescriptions for controlled substances “[e]xcept as authorized”;
an “authorized” prescription is defined in attendant regulations as one “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”
After the passage of the CSA in 1970, courts disagreed about whether the mens rea required to impose criminal liability on doctors who prescribe drugs covered by the CSA is an objective or subjective one. In other words, must the Government show only that a doctor’s prescription “was in fact not authorized, or must the Government prove that the doctor knew or intended that the prescription was unauthorized”?
A unanimous Court adopted the subjective standard, and the majority held that the Government must prove beyond a reasonable doubt that the defendant knew that they were acting in an unauthorized manner.
The Court concluded that an objective standard would make a defendant’s criminal liability turn on “the mental state of a hypothetical ‘reasonable’ doctor, not on the mental state of the defendant.”
Although Ruan and Dobbs address unrelated areas of medical practice, the legal saga that culminated in the adoption of a subjective mens rea standard for the CSA is instructive for state courts as they interpret the new statutes that criminalize abortions. This Note first explores the circumstances that led the federal government to enact the CSA, the vacillating and politically charged history of its enforcement against doctors, and the reasons why the Court concluded that criminal liability for dispensing drugs in this context requires a subjective mens rea standard.
Next, the Note turns to the abortion context, describing the history of therapeutic abortions,
the Dobbs decision, and the regulatory outburst that followed. It compares the states’ efforts to regulate abortion with the federal effort to regulate drugs and explores the challenges in both contexts of using criminal law to regulate medical treatment.
It also provides the first comprehensive review of the mens rea language contained in the nation’s strictest abortion bans. The Note concludes by arguing that state courts interpreting statutes with emergency exceptions should adopt, as the Ruan Court did for the CSA, a subjective mens rea standard. Such a standard is critical for three reasons: (1) It protects patients by preventing overdeterrence of critical, often lifesaving, medical care; (2) it protects medical professionals by shielding them from criminal liability when hazy legal standards and a politically charged environment make it extremely difficult for them to determine the legality of an abortion; and (3) it mitigates the constitutional vagueness concerns presented by the statutes.