Abortion Bans

Outline

  1. Rights vs Majorities
  2. Abortion Bans
  3. Exceptions
  4. Legal Challenges
  5. Ballot Measures Since Dobbs
  6. Texas Abortion Bans
  7. OBGYN’s Abortion Decision in States with Bans
  8. KFF Resources

Rights vs Majorities

  • In a democracy rights protect individuals from the “tyranny of the majority,” for example, when a majority passes a law making behavior of which they disapprove a crime, such as interracial marriage.
  • In Roe v. Wade (1973) the justices ruled 7-2 that a woman has a constitutional right to abortion before fetal viability.
  • In Dobbs v. Jackson Women’s Health Organizations (2022) different justices ruled 6-3 that the Constitution confers no such right, allowing states to ban abortion.
  • The rulings conflict because the justices in each case subscribed to different judicial philosophies.
    • The majority justices in Roe viewed the Constitution as a dynamic, living document that’s expanded by judicial rulings, like common law.
    • The majority justices in Dobbs viewed the Constitution as a static rule book that only permits interpretation.

Abortion Bans

  • Gestational Age
    • Gestational age is the length of time the fetus has been in the mother’s womb, typically measured by the number of weeks since the day of the mother’s last menstrual period (LMP)
    • Gestational age at viability 24 weeks
    • Gestational age at birth 40 weeks
  • Percentage of abortions performed within X weeks of the last menstrual period (LMP)
    • 43% performed within 6 weeks of LMP
    • 79% performed within 9 weeks of LMP
    • 92% performed within 13 weeks of LMP
    • 99% performed within 20 weeks of LMP
  • Many states have more than one abortion ban, some with conflicting exception.
    • Oklahoma has four bans, each with different exceptions.
    • Mississippi has multiple bans with incompatible exceptions.
    • Texas has three bans.

Exceptions

  • Exceptions vs Affirmative Defense
    • Abortion bans in Tennessee, Idaho, Kentucky, and Missouri provide affirmative defenses rather than exceptions.
    • Wex Definition of “Affirmative Defense”
      • “An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.”
  • Exceptions to state abortion bans fall into four general categories, per KFF
    • to prevent the death of the mother
      • All state abortion bans have this exception 
    • to preserve the health of the mother
      • States with no health-of-mother exception: Arkansas, Idaho, Mississippi, Oklahoma, South Dakota, and Wisconsin
    • when the pregnancy is the result of rape or incest
      • A few bans have this exception, which usually requires that the sexual assault is reported to law enforcement
    • when the fetus has a lethal health anomaly
  • Abortion in Texas is permitted if “in the exercise of reasonable medical judgment” the woman has a life-threatening physical condition
    • aggravated by, caused by, or arising from a pregnancy
    • that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless an abortion is performed or induced
  • Texas has no exceptions for rape, incest, and lethal fetal anomalies
  • Challenges have been based on provisions of state constitutions guaranteeing
    • rights to liberty, due process, or privacy
    • the right of people to make their own health care decisions 
    • the right of people to freely exercise their religion

Ballot Measures Since Dobbs

  • Ballot measures (referenda) are a form of direct democracy, where citizens get to vote on proposed laws or constitutional amendments directly.
  • Voters approved ballot measures in California, Michigan, and Vermont that amended their state constitutions to guarantee the right to abortion.
  • In 1929 the Supreme Court of Kansas ruled that a pregnant woman’s right to personal autonomy was protected in its Constitution.  Voters in Kansans rejected a ballot measure that would have added a provision to the Constitution that said there was no right to abortion.
  • Voters in Kentucky rejected a ballot measure that would have amended the state constitution to say “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
  • In Montana voters rejected a measure that would have enacted the Born-Alive Infant Protection Act.
  • Ohio voters rejected a ballot measure that would have required a 60 percent supermajority to amend the state constitution, which would have made it more difficult to amend the constitution to guarantee the right to abortion.

Texas Abortion Bans

  • Texas has three abortion bans.
  • Trigger Ban
    • Texas 170A bans abortion from fertilization
    • Punishment is imprisonment for 5 years to life
    • There are exceptions for the life and health of the mother:
      • Abortion is permitted if “in the exercise of reasonable medical judgment” the woman has a life-threatening physical condition
        • aggravated by, caused by, or arising from a pregnancy
        • that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.
  • Civil Enforcement Ban (Heartbeat Law, SB 8)
    • Texas 171.201-212 allows any private citizen to sue anyone in Texas who performs, aids or abets an abortion of a fetus with a detectable fetal heartbeat. If successful the plaintiff is awarded $10,000, court costs, and attorney fees.
    • Enforcement by the criminal justice system is prohibited.
    • Abortion is permitted if a physician “believes a medical emergency exists,” that is:
      • “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
    • View SB 8.
  • Pre-Roe Ban
    • Texas 4512 bans abortion except to save the mother’s life.
    • The punishment for performing an abortion is incarceration for two to five years (compared to five years to life under the Trigger Ban).
    • Unlike the Trigger Ban, anyone who “furnishes the means for procuring an abortion … is guilty as an accomplice.”

OBGYN’s Abortion Decision in States with Bans

  • Abortion bans provide exceptions such as
    • to prevent the death of the mother
    • to preserve the health of the mother
    • when the pregnancy is the result of rape or incest
    • when the fetus has a lethal health anomaly
  • Yet OBGYN’s are reluctant to offer abortions
    • KFF A National Survey of OBGYNs’ Experiences After Dobbs, June 2023
      • “In states where abortion is banned, essentially no OBGYNs offer abortions, except under very limited circumstances. Additionally, nearly half (48%) of OBGYNs in these states only offer information, such as online resources, to help patients seek out abortion services on their own, but 30% do not even offer their patients referrals to another clinician or any information about abortion.”
  • There are two primary reasons:
    • Vagueness of key terms in the exception provisions
    • Liability to punishment
  • To illustrate the problem, let’s consider a semi-hypothetical example.
    • Anna, who lives in Texas, is pregnant.
    • Anna’s water broke at 19 weeks, much too early.  Her OBGYN diagnosed PPROM (premature rupture of the amniotic sac).  At 19 weeks, the baby would not survive to birth. Moreover, if Anna continued the pregnancy, she would be at high risk of developing a septic infection.  So Anna should have an abortion.
    • Under the Texas Trigger Ban, abortion is permitted if “in the exercise of reasonable medical judgment” the woman has a life-threatening physical condition
      • aggravated by, caused by, or arising from a pregnancy
      • that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced;
    • Would an abortion be permitted under Texas Texas 170A?
    • Anna’s condition would need to be “life-threatening.” Statutes often define the key terms they use.  But there’s no definition of “life-threatening” in Texas 170A.  So Anna’s OBGYN is on her own.  Were the pregnancy to continue, Anna would be at high risk of sepsis.  Let’s grant that sepsis is life-threatening.  But that doesn’t mean that being at high risk of sepsis is itself life-threatening. Per Merriam Webster, “life-threatening” means capable of causing death or potentially fatal. It seems that Anna’s condition is potentially fatal, that is, if no action is taken.  But abortion may not be the only option.
    • At any rate let’s assume that in her OBGYN’s professional opinion Anna’s condition is life-threatening  The problem is that Texas 170A doesn’t say that a condition is life-threatening in the physician’s medical opinion.  It says in the exercise of reasonable medical judgment. So at trial the prosecution could argue that the OBGYN’s opinion was not medically reasonable. If the jury agrees, the OBGYN may spend the rest of her life in prison.

KFF Resources