You can’t understand abortion law unless you understand abortion facts. And that is proving extremely difficult in a media and political environment that is full of misinformation and outright deception.
In the legal and political environment after Dobbs, abortion law is now going to be a state-by-state affair. This naturally can be very confusing. But some wrong information is particularly common across the board, so it’s important to make the facts clear. Let’s review a few of them.
Medical Emergencies
There is a lot of confusion about how state abortion laws impact medical treatments for women who have life-threatening conditions. It’s vitally important for hospitals and their lawyers to get this right, because lives are legitimately at stake.
Every single state abortion law contains exceptions that permit abortions either to save the life of the mother or to preserve her physical or general health. There is no reason for a doctor to fear any legal consequences for doing whatever is necessary to treat a mother who has a medical emergency.
Anyone who says that abortion bans are endangering the lives of mothers either doesn’t know what they are talking about, or are being deceptive.
Ectopic Pregnancy
One of the most commonly discussed emergencies involves treatment of an ectopic pregnancy. That occurs when the embryo implants outside of the mother’s uterus, usually in the Fallopian tubes. That can be very dangerous to the mother’s health and can even cause her death. Also, the embryo cannot properly develop anywhere but the uterus, so unfortunately she cannot survive to be born in any event.
The first thing to understand is that these are quite rare — only about 1 to 2% of regular pregnancies, and 2 to 5% among patients who were pregnant due to assisted reproductive technology.
Treatment for ectopic pregnancy is not necessarily an abortion. Abortion means a direct action that intentionally causes fetal death and thereby ends a pregnancy. In many cases, an ectopic pregnancy is resolved without medical intervention and the embryo dies naturally. If intervention is necessary, however, there are morally acceptable ways to resolve the problem that are not abortions — they don’t involve directly and intentionally taking the baby’s life.
Don’t take my word for it, here’s what Planned Parenthood says:
Treating an ectopic pregnancy isn’t the same thing as getting an abortion. Abortion is a medical procedure that when done safely, ends a pregnancy that’s in your uterus. Ectopic pregnancies are unsafely outside of your uterus (usually in the fallopian tubes)… The medical procedures for abortions are not the same as the medical procedures for an ectopic pregnancy.
https://www.plannedparenthood.org/learn/pregnancy/ectopic-pregnancy
[UPDATE: Planned Parenthood changed the wording of their webpage after I posted this. It now says: “The medical procedures for terminating a pregnancy in the uterus are usually different from the medical procedures for terminating an ectopic pregnancy.” The point still holds.]
Some of the recent abortion bans explicitly state that the law doesn’t apply to ectopic pregnancy. For example, the controversial Texas law says “An act is not an abortion if the act is done with the intent to: remove an ectopic pregnancy.” (Sec. 245.002(1))
There should be no confusion about this. Treatments for ectopic pregnancies are generally covered by “medical emergency” exceptions, and thus legally (and, in many cases, morally) are not abortions.
Anyone who says that abortion laws impact treatment for an ectopic pregnancy is either misinformed or is deliberately spreading false information.
Miscarriage
A miscarriage is the spontaneous death of a child in utero. It’s hard to say how many miscarriages take place, because many happen without the mother even knowing that she’s pregnant. Some experts estimate that between 10% and 20% of pregnancies end in a miscarriage, but this heavily depends on how far along the pregnancy is and a host of other factors. The further along she is in pregnancy, miscarriages are less common.
In the great majority of cases, the fetal remains are expelled naturally and there are no medical complications for the mother. In some cases, however, medical intervention is needed to remove the remains of a deceased baby.
Parenthetically, the medical term for miscarriage is “spontaneous abortion.” That’s a terrible way to describe what happens in a miscarriage, and it can be very hurtful to people who have experienced that tragedy. You would think that the medical profession, which seems so sensitive to linguistic nuances about other subjects like preferred pronouns, would have corrected this by now. But that’s one source of confusion.
Another source of confusion is that some treatments for miscarriage are the same as those used for abortions. If the intent is to deal with the remains of a baby who is already dead, it’s treating the miscarriage. But if the intent is to kill a living baby, it’s an abortion.
For example, if the baby dies in the mother’s womb but his remains are not spontaneously expelled, the doctor may have to do a kind of surgery known as “dilation and curettage”, or he may prescribe certain medications. That same technique, and the same medicines, are also used in abortions. But because the baby is already dead, this is not an abortion. The intent is not to kill, but rather to treat a condition that could potentially cause a dangerous infection to the mother.
The same Texas law, for example, says “An act is not an abortion if the act is done with the intent to… remove a dead, unborn child whose death was caused by spontaneous abortion”. (Sec. 245.002(1)) So when the baby has already died, the law just does not apply.
There have, however, been some reported cases where doctors were reluctant to intervene in a miscarriage because the baby had not yet died. There is no question that this would cause terrible suffering to the mother. But if the doctor intentionally causes the death of the child in order to end the pregnancy, that is the textbook definition of an abortion. Instead, the doctors should treat the mother but not intentionally harm the child.
So anyone who says that abortion bans prevent proper care for women having miscarriages is either misinformed, fails to understand the distinction between miscarriage and abortion, or is being deliberately deceptive.
Rape and Incest Exceptions
A lot of attention is being paid to whether laws banning abortion explicitly permit an exception if the pregnancy resulted from rape or incest. Much of this stems from the horrible allegations that a 10-year-old girl in Ohio was impregnated by an adult who raped her.
The first thing to understand here that we need to proceed with caution. There is a lot of legislative activity in the states over their abortion laws. There is also a lot of litigation going on about laws that pre-dated Roe, and which may have come back into effect, and so-called “trigger laws” that where designed to go into effect if Roe were overturned.
By my count, relying on a compilation of all abortion laws on the legal research site Justitia, there are 8 states that explicitly contain rape and/or incest exceptions to their bans on abortion. But some of those laws are under litigation, so the situation is very fluid and can change almost day by day.
Another thing to understand is that we are only talking about a tiny percentage of all the abortions that take place. According to a Guttmacher Institute analysis, only 1% of women who had obtained abortions “indicated that they had been victims of rape, and less than half a percent said they became pregnant as a result of incest.” These categories overlap, of course — any minor who was the victim of incest was also by definition a victim of rape. Only 4% of women cited their health as a reason, and only 3% cited fetal health. The remaining 92% cited other reasons, mostly relating to readiness, economics, or relationship issues.
Why do the hard but marginal cases of rape or incest garner so much attention, rather than the vast majority of abortions that are essentially retroactive birth control?
I think there’s some good-faith confusion. But I also believe it’s because pro-abortion advocates, and their allies in the media, want to cast pro-lifers as being cruel or indifferent to the suffering of women. I also think they are a test of the willingness of pro-lifers to accept imperfect laws as a provisional measure on the way to full legal protection for all unborn children.
Conclusion
As we go forward, it’s important for pro-lifers to have these kinds of basic facts at their fingertips. The media is not reporting this carefully or accurately, and the fog of political rhetoric is making it all very confusing. Attorneys for hospitals and media legal analysts really need to step up to the plate and clarify the law for their clients and the public.
And it’s also important to remember one essential fact: in 2020, about one in five pregnancies ended in abortion. That’s an intolerable loss of life and a public health catastrophe. That’s what lawmakers should be focused on, and they should be doing whatever they can to bring it to an end.
Stepping Out of the Boat 