EMILY GILL
Since Roe v. Wade was overturned by the Supreme Court last June, many states have passed legislation defining and limiting the circumstances under which abortions may be performed. As a result, many doctors and hospitals have been extremely timid about abortions even when these might well be legal under the laws of their states. They have often been advised by their lawyers that it’s better to err on the side of denial rather than risk legal action due to ambiguous laws or to unforeseen applications of them.
Many of the new state laws provide exceptions to protect the health or life of the patient, or in cases of rape of incest. A woman in Mississippi, however, could not find a doctor to provide an abortion when she said that a friend had raped her. She probably would not have qualified anyway. Although about 25% of states prohibiting abortions allow exceptions for rape and incest victims, Mississippi and nearly all the others require a police report or doctor’s note as proof of an assault. Anti-abortion advocates claim that these requirements are necessary to prevent people from falsely representing themselves as rape victims. Those who work with sexual assault victims, however, say that the reporting requirement is a steep barrier for victims, and that about two-thirds of victims do not report because they may know their abuser and they worry about the consequences of reporting. One Mississippi rape victim eventually got an abortion in Indiana, more than 600 miles away.
Indiana’s ban, the first after Roe fell, allows exceptions for deadly birth defects, such as missing kidneys or an incomplete skull. One woman’s doctor confirmed a deadly diagnosis that would kill the fetus either during pregnancy or shortly after birth. The hospital’s lawyers, however, thought that the new law’s confusing wording prohibited the recommended abortion method. Exceptions for deadly defects are included in only about a third of abortion bans. Utah allows exceptions, but only for abnormalities that are “universally lethal,” a qualification on which doctors report rare consensus. Almost all state bans allow exceptions for threats to a pregnant patient’s life. In three states (Idaho, North Dakota, and Tennessee), however, doctors bear the burden of proof that the patient’s life was endangered.
Overall, states with recent bans report very low abortion figures. Even with exceptions, Mississippi has reported only two abortions and Louisiana has reported zero. The doctor of the Indiana patient above says that although states tout that they have exceptions for fetal abnormalities and patients’ lives, “When you get into the nitty-gritty details of it, you actually don’t.” Some anti-abortion movement members say that these types of cases should not even be considered abortions and that doctors should not fear terminating them. Abortion-rights advocates point out that doctors can’t anticipate all possible threats to a pregnancy, and holding up care while awaiting legal counsel can threaten lives.
In sum, the carve-outs to these abortion bans represent an effort to make value judgments about who should get abortions and who should not. Some patients are deserving and some are not. It reminds one of debates in the 1960s and 1970s about who are “the deserving poor”: some poor people deserve help whereas others do not. In medicine as in material resources, we should provide care because that is what is needed.
Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University