PHYSICIAN MENS REA: APPLYING UNITED STATES V. RUAN TO STATE ABORTION STATUTES

In June 2022 the Supreme Court decided two unrelated cases, Dobbs v. Jackson Women’s Health Organization and Ruan v. United States, each with significant implications for the criminal regulation of doctors. Dobbs removed abortion’s constitutional protection; in its wake, many states passed criminal statutes banning the procedure except in medical emergencies. The vagueness of those emergency exceptions, however, has produced a chilling effect among abortion providers who fear criminal exposure from exercising medical judgment. How the mens rea required to convict abortion providers under these statutes is codified and construed will be critical to understanding the scope of their criminal exposure when exercising medical discretion.

In Ruan, the Court clarified the mens rea required to convict doctors under the Controlled Substances Act (CSA), adopting a subjective standard over the Government’s proposed objective one. Although Ruan and Dobbs address unrelated areas of medical practice, the common law, constitutional, and pragmatic principles underpinning the Court’s adoption of a subjective mens rea standard for the CSA are instructive for state courts interpreting the new abortion bans. After recounting the history of prescription drug regulation and comparing states’ efforts to regulate abortion with the federal effort to regulate drugs, this Note argues that state courts interpreting emergency exceptions to state abortion bans should adopt, like the Ruan Court, a subjective mens rea standard. This standard will not only curb the bans’ chilling effect on lifesaving obstetric care but also mitigate constitutional vagueness concerns and comport with common law’s preference for scienter.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2024, Columbia Law School. I am grateful to Professor Daniel C. Richman for his generous guidance and support on this project. Special thanks also to Jackson Springer, Andrew Straky, Kristin Bergeson McCalpin, Celeste Kearney, and Margaret Hassel for their helpful feedback on earlier drafts, and to the entire staff of the Columbia Law Review for their editorial support. All errors are my own.

INTRODUCTION

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, 1 142 S. Ct. 2228 (2022). dismantled the federal constitutional right to an abortion set out in Roe v. Wade and its progeny. 2 410 U.S. 113 (1973) (recognizing a constitutional right to abortion during the first trimester without state interference), overruled by Dobbs, 142 S. Ct. 2228; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (reaffirming but reframing the right established in Roe), overruled by Dobbs, 142 S. Ct. 2228. 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. 3 See Abortion Ruling Prompts Variety of Reactions From States, Associated Press ( July 21, 2022), https://apnews.com/article/supreme-court-abortion-ruling-states-a767801145ad01617100e57410a0a21d [https://perma.cc/6KLV-RRY7] (providing an “overview of abortion legislation and the expected impact of the court’s decision in every state”). 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. 4 See, e.g., Ala. Code § 26-23H-4 (2023) (allowing abortions only when deemed “necessary in order to prevent a serious health risk to the unborn child’s mother”); see also infra section II.B (discussing the statutory language of state laws criminalizing abortion, which uniformly contain emergency exceptions). 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. 5 See J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle With Medical Exceptions on Abortion, N.Y. Times ( July 20, 2022), https://www.nytimes.com/2022/07/20/us/abortion-save-mothers-life.html (on file with the Columbia Law Review) (noting doctors’ concerns that the decision to terminate a pregnancy in a medical emergency “has become fraught with uncertainty and legal risk”). 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). 6 142 S. Ct. 2370 (2022). That federal statute prohibits prescriptions for controlled substances “[e]xcept as authorized”; 7 21 U.S.C. § 841(a) (2018). 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.” 8 21 C.F.R. § 1306.04(a) (2023). 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”? 9 Ruan, 142 S. Ct. at 2375. 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. 10 Id. at 2375 (holding that, once the defendant invokes the authorization exception, “the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so”). The concurrence, written by Justice Samuel Alito, joined by Justice Clarence Thomas, and joined in part by Justice Amy Coney Barrett, would have instead held that the authorization exception established an affirmative defense under which the defendant, to avoid conviction, must prove he acted in “subjective good faith” by a preponderance of the evidence. Id. at 2389 (Alito, J., concurring in the judgment). 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.” 11 Id. at 2381 (majority opinion).

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, 12 The term “therapeutic abortion” refers to an abortion “induced when pregnancy constitutes a threat to the physical or mental health of the mother.” Therapeutic Abortion, Merriam-Webster, https://www.merriam-webster.com/medical/therapeutic%20abortion [https://perma.cc/FX9W-RPJ4] (last visited Aug. 28, 2023). 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. 13 The fact that the CSA is a federal law and that abortion statutes are state laws is not a significant distinction for purposes of this Note. The similarity that makes them comparable for this discussion is the fact that both the CSA and state abortion laws are criminal statutes implicating mens rea requirements for doctors engaged in the ordinary course of their practice. 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.