Please help me understand the confusion over health exceptions to abortion bans

Politics & Elections
#1

Many of you may have read stories about Texas hospitals (allegedly) turning away pregnant people in need of potentially life-saving abortion care, due to confusion over whether the health exception in the new Texas abortion ban (and related bill SB-8) actually allows doctors to administer such care without risk of prosecution.

Here is one of many news stories about the topic:

I am trying to understand the confusion, but have been repeatedly frustrated by the way it’s being reported, and the way it’s being framed by anti-abortion people.

News reports keep saying that doctors are confused, but never provide specifics about exactly why these doctors aren’t sure whether the health exception will protect them from prosecution if they provide life-saving abortion care. It seems like it ought to be easy enough to walk the reader through the process by which a doctor might end up subject to prosecution, but I’ve read dozens of these articles now, and no one will give specifics.

In the meantime, anti-abortion folks are insisting that the law clearly allows abortion to save the life of the pregnant person, and that hospitals are being either ridiculously cautious, or deliberately obtuse in order to push a pro-abortion rights agenda. Many of these people think the hospitals are being influenced by media reports.

So what the fuck is happening? Does anyone on these boards know/understand specifically what doctors and hospitals are afraid of, what aspects of the law are unclear, etc.? Because news reports aren’t getting into those details.

A few notes: I think it is highly unlikely that big hospitals with lawyers are looking to media reports for legal guidance. If the hospitals are confused, the law must be confusing. I just can’t figure out how.

Also, as a relevant side-note, the Biden administration recently released guidance to Texas hospitals receiving Medicare/Medicaid, under a law called EMTALA, reminding them that they are still obligated to provide abortion care when the health of the patient is threatened, or risk losing funding. If that guidance was really needed, then that would indicate that the Texas law really is confusing. But in response, Texas sued the Biden admin for meddling in state affairs, and said this in their brief:

Texas Attorney General:
The EMTALA Guidance explicitly threatens the Medicare provider agreements for any healthcare providers that refuse to abide by the Abortion Mandate.These hospitals are now threatened with having to choose between violating state law under threat of criminal penalty or jeopardizing their ability to participate in Medicaid.

I feel that this would have been an opportunity for Texas to clarify that hospitals and doctors do not risk prosecution for administering life-saving abortion care, but instead the brief seemingly frames that care as “violating state law.”

It seems to me that if hospitals and doctors are safe from prosecution, Texas (and the other states with similar bans) could easily make clarifying statements to that effect. So far they have not.

This is driving me nuts. Any new info would be much appreciated.

#2

The issue is simple: most State abortion bans contain “simple language” without a lot of clarity on mechanics, that say abortion cannot be performed unless it is necessary to save the life of the mother (sometimes the phrasing is necessary to prevent serious bodily harm.)

Okay, what does that mean? The law doesn’t say. And importantly–it doesn’t delegate authority to make that determination to some sort of organized body or rational process…so presumably each physician is simply assuming the risk for themselves every time they determine an abortion is necessary to save the life of the mother. They could then be put in a position where they will have to demonstrate their rationale in court–where 12 jurors might disagree with them. Now they’re convicted felons, going to prison, and will never be able to practice medicine again. Even if they win at trial, they have had to undergo the criminal legal process–which is a nightmare.

There are actually ways you can structure such things where there’s a lot less doubt. Before Roe was overturned, in many respects the United States had some of the loosest abortion restrictions among OECD countries–it was basically legal on demand pre-viability. This alone covered like 99% of all abortions, very few abortions in the United States occur post-viability (or third trimester, which used to essentially be the same thing, but neonatal care has made them not be entirely overlapping now.)

A number of other Western countries limit abortion around 12 to 14 weeks without medical cause. A common construct is after that week threshold has been passed, there is some sort of official body made up of physicians who can be quickly contacted with the case, review it and give approval for the abortion–usually within a few hours. The law then basically indemnifies the individual physician for going forward–the act of a committee of physicians signing off on it means the individual physician now does not have any legal culpability.

By and large the anti-abortion States in America have not created anything like that, so doctors are going to be truly at the whims of vague legislative text and “whatever strikes a local prosecutors fancy.”

Note that we’re already seeing signs that even when doctors follow the law to the letter, local Republican elected officials are going to go after doctors to try and scare them into not practicing–it would be quite easy to create a legal structure in which you had a deliberative mechanism for a physician getting approval to perform a “for the life of the mother” abortion and indemnify the physician. It is a policy choice not to do that, one that is actually designed to leave physicians uncertain and afraid–and thus less likely to perform abortions under any circumstance.

Note that SB8, which ceased being in effect the moment Roe was overturned, caused a number of additional problems in that it basically let individuals sue doctors for any abortion after 6 weeks and put most of the pain of that lawsuit on the physician, even if they were to prevail in court eventually. SB8 thus did technically say it didn’t apply in medically necessary cases, but you had to win complicated civil litigation to prevail on that point.

#3

Thank you for this!

Regarding this:

Can you point me in the direction of an article, etc. that describes this process? Or even just Google search terms.

#4

You might look to how Canada’s has handled abortion since 1969 on a province by province basis:

The history of abortion access on Prince Edward Island | CBC News

I don’t necessarily have a good comprehensive article at the ready, but that is one that I had just read recently that is germane.

#5

Thank you!

#6

Very disturbing stuff.

…
In one case, a central Texas hospital reportedly told a physician not to treat an ectopic pregnancy until it ruptured, the letter said. An ectopic pregnancy, which occurs when a fertilized egg attached outside of the uterus, is not viable.
…

My bold.

WTF??

This was reported by several sources, including abcnews.

#7

Yeah! And the law does make an explicit exception for ectopic pregnancies, but hospitals are still hesitant to trust it.

#8

never mind

#9

It may not just be a local prosecutor either; Republicans here in Texas are already claiming that they are going to try to pass a law to allow prosecutors in any county in Texas to prosecute doctors who perform abortions in any other county. This is an attempt to get around the fact that the D.A.s in many of the states largest counties (Dallas, Harris, etc.) have stated they are not going to pursue prosecutions.

Under this rubric, a D.A. in Lubbock could prosecute a doctor in Houston, hundreds of miles away. The residents of Harris County may not approve of it, but they will have no recourse. After all, they don’t live in Lubbock County.

#10

I am looking at what i think is the relevant law

And i see an exception for “a medical emergency” (which isn’t defined.) I do not see any exception for an ectopic pregnancy.

And while it’s well understood that an ectopic pregnancy will lead to a medical emergency (when it ruptures), i don’t think “i know something bad will happen in a few weeks” meets the ordinary definition of “medical emergency”. And i think that’s why doctors are afraid to abort ectopic pregnancies. Because a plain-language reading if the law doesn’t allow it, and they would be risking a felony charge.

#11

Here’s another question: if the laws really are clear enough, and if the hospitals and doctors are wrong to be so cautious, can we anticipate a torrent of malpractice suits brought by mistreated patients?

#12

This fact in itself is enough to introduce considerable uncertainty for the doctors.

Right now, the status is “An abortion to save the life of the mother is legal, but if you do one, we’re going to prosecute you anyway, and it’s up to you to raise that defense in court”.

#13

…to put this as simply as possible: the anti-abortion folks who are insisting that the law clearly allows abortion to save the life of the pregnant person are gaslighting. If you just accept that they simply aren’t arguing in good faith, then it should become less confusing for you.

#14

Once a law is passed, interpretation of the law is a matter for the courts, not executive branch.

#15

Yep. Whenever a law is passed by Congress or a state legislature, it’s usually full of unanswered questions – what do specific terms mean, how do the provisions apply in XYZ circumstances, how is compliance to be monitored and enforced? Often the Legislature deliberately does not provide clear answers to these questions in the bill. It may have been necessary in order to paper over differences among the bill’s supporters. Or it may have involved making a politically painful choice that would have angered some key constituency.

The usual process is for the legislature to charge the relevant administrative agency to engage in rulemaking to help define the real-world details of how the bill’s provisions will be enacted. That never happened with the various state abortion bans because the bans themselves were unenforceable in light of Roe. They also weren’t really designed to enact policy – they were designed to be propaganda. Getting muddled up in the details of how a ban would actually work would have detracted from their value as such.

#16

As I mentioned above, executive agencies often are charged with interpreting legislation and promulgating rules and regulations based on their interpretation. Those rules can then be challenged in court.

#17

Yes, that’s what I was trying to say. Ultimately, this is an issue for the courts, even if there are regulatory guidelines.

#18

This used to be relatively uncontroversial, but lately there has been a lot of pushback from conservatives against the authority of these executive agencies (aka The Deep State) to promulgate rules, the narrative being that it amounts to unelected officials unilaterally making policy.

This was at the heart of many of the 2020 election lawsuits, they challenged the authority of appointed election commissions to make pandemic-related changes to voting procedure that weren’t explicitly approved by the legislature, and I believe the same argument has also been used successfully against environmental regulatory agencies.

I see no reason to believe that it won’t also become an issue with abortion policy.

#19

And it could also be as simple as different DA’s taking different approaches to the law, as mentioned above. If you’re a doctor, not doing anything is the safest legal approach.

#20

If you are a doctor treating a person with an ectopic pregnancy, you can:

  1. perform an abortion, and risk being convicted of a felony
  2. wait until the fallopian tube ruptures, then treat the unambiguous medical emergency and hope the mother survives.
  3. advise your patient that you can’t perform an abortion until too late, but that if they can get an abortion in another state now, that might save their future fertility or even their life. And if they don’t do that, here are the symptoms that should send them to the emergency room ASAP.

I’m guessing a lot of doctors are going with #3, rather #1.