After the Supreme Court overturned Roe v. Wade, the fight over the right to life returned to elected representatives, but advocates of a right to abortion did not abandon their desire to have unelected judges thwart the will of the people. In many states, attorneys general have successfully fought off meritless lawsuits that tried to stop duly enacted pro-life laws from taking effect. In some states, litigation is ongoing.
Attorneys general should be commended for defending laws that are already saving the lives of vulnerable human beings, but they need to do much more. They must use the authority of their offices to help dispel the dangerous misinformation that pro-life laws don’t allow proper care for women in life-threatening situations.
Every state abortion law on the books when Roe was handed down included language protecting the life of the mother, and that is true of every state law that has taken effect after Dobbs. But there has been a tsunami of disinformation and erroneous information in the media about abortion laws’ exceptions. Due to misinterpretation of the law or unreasonable fears stoked by pro-abortion ideologues, at least some hospital administrators and lawyers have advised doctors to delay treatments for women with life-threatening conditions.
South Carolina GOP state representative Neal Collins recently relayed one such terrible story in a committee hearing, and video of Collins’s remarks went viral on the Internet last week. A doctor called Collins two weeks after the state’s fetal-heartbeat law took effect to tell the legislator about the case of a pregnant woman whose water broke 15 weeks into pregnancy, when the baby is incapable of surviving outside the womb. “The standard of care was to advise her that they could extract [the child] or she could go home. The attorneys told the doctors that because of the fetal-heartbeat bill — because that 15-week-old had a heartbeat — the doctors could not extract” until the baby’s heartbeat stopped, Collins said. He added that the doctor said there’s a “greater than 50 percent chance that [the pregnant woman is] going to lose her uterus” and “there’s a 10 percent chance that she will develop sepsis and herself die.”
But the text of South Carolina’s heartbeat law explicitly states the ban “does not apply to a physician who performs a medical procedure that, by any reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent the serious risk of a substantial and irreversible impairment of a major bodily function of the pregnant woman.”
Hastening the end of the pregnancy of a woman whose water broke at 15 weeks — a woman at risk of developing sepsis if untreated — is obviously “intended to prevent the death of the pregnant woman.” A pregnant woman at risk of losing her uterus is obviously facing a “serious risk of a substantial and irreversible impairment of a major bodily function.” The South Carolina law does not include any requirement of waiting until the threat is “imminent,” and the law defers to “any reasonable medical judgment” of the physician.
It is not controversial, even among pro-life doctors and pro-life organizations, that a pregnant woman should be offered immediate treatment when her water breaks before viability. “I say this as a pro-life physician: It is appropriate to deliver at that point. Because we know that likelihood that four days, six days [later], she’s going to be clinically infected,” Dr. Ingrid Skop, director of medical affairs at the pro-life Charlotte Lozier Institute, told National Review.
Skop co-authored a paper with attorney Mary Harned for the Lozier Institute, the research affiliate of Susan B. Anthony Pro-Life America, explaining that most abortion laws in life-threatening cases explicitly defer to doctors exercising “reasonable medical judgment,” which is a “standard very common in the medical profession and used for any case involving medical malpractice litigation.” Reasonable medical judgment allows doctors to continue to use widely accepted standards of care in a variety of rare but real life-threatening conditions that arise during pregnancy.
But efforts by pro-life doctors and organizations to clear up bad information can only do so much. Those in positions of power need to act. Clear written guidance — preferably issued as formal legal opinions — from attorneys general would be much more likely to ensure that hospitals are providing the proper standard of care and not deferring to hospital attorneys who are misinterpreting the law or bringing their defensive-medicine approach to statutory interpretation.
Hospitals have responded to corrective guidance in other instances. In Missouri, for example, a major hospital stopped offering the Plan B “emergency contraceptive” but resumed offering it after the state’s attorney general issued a statement clarifying the abortion law did not ban it. And just because a horror story hasn’t emerged in any particular state isn’t a reason for that state’s attorney general to remain silent. There’s no harm in being proactive.
Guidance from attorneys general should make four key points: (1) When a life-threatening condition arises in pregnancy, treatment may be immediately provided — there is no legal requirement to wait until a pregnant woman’s condition becomes dire or a threat becomes imminent. (2) Life-threatening cases include — but are not limited to — conditions such as premature rupture of membranes, severe pre-eclampsia, and other situations discussed in the Charlotte Lozier Institute paper. (3) “Reasonable medical judgment” is a deferential standard that is not intended to tie the hands of doctors. (4) The exception applies to physical — not emotional or mental — health conditions.
That fourth point should quell any fears among pro-lifers that a health exception would be turned into a loophole that effectively allows abortion-on-demand. In the very unlikely event any hospital tried to exploit the exception, it would be obvious: Life-threatening conditions account for only a fraction of a percent of all abortions. (Treatment of ectopic pregnancies, which account for 1 to 2 percent of all pregnancies, has never been considered an abortion.)
Attorneys general are not the only people in positions of power who should speak out. Medical boards, departments of health, and governors also have a role to play. Malpractice lawsuits should be filed where appropriate. Journalists should accurately report what the law says. And while pro-life laws already allow doctors to use their reasonable medical judgment to care for women in life-threatening situations, pro-life legislators should consider, where appropriate, making exceptions more explicit. But no law could be exhaustive. That’s why deference to reasonable medical judgment when treating physical threats to a mother’s life is important.
The only people who gain from these excruciating cases are those ideologues who want to present Americans with the false choice of a policy of abortion-on-demand or poor treatment of pregnant women in dangerous situations. Pro-life laws protected both mother and child before Roe, and they do so after Dobbs. The urgent task of pro-life statesmen is to ensure that those laws are properly understood and followed.