Yes, That’s an Abortion: The Importance of Clarity and Statutory Precision

Hey everyone! It’s your favorite Ordinary Times lawsplainer. You might wonder where I’ve been, what with all these huge SCOTUS opinions coming down. You were probably expecting a breakdown from me on a few of them. Believe me, I was itching to provide you with some. Unfortunately, my work load at my day job has basically tripled since the end of May, leaving me no time or energy for law blogging.

Rest assured: I have been paying attention. And while I have missed the boat on a timely dissection of Dobbs, I nevertheless have a bit to say on the topic. This is not an opinion-based screed; I rarely if ever debate abortion and I’m not going to get into the overall controversy — much. However, I do have some thoughts I want to share to make sense of some hyperbole and worst-case scenarios floating around.

Like most things legal, it all comes down to the wording of the various state statutes, because the word “abortion” has different meanings, depending on who you ask. The discrepancies are evident when you hear the warnings about women being prosecuted for miscarriages or left to die from ruptured fallopian tubes when an ectopic goes untreated. “But that’s NOT abortion!” say the pro-lifers who dismiss and eye-roll these concerns as strawmen or red herrings. To them, abortion only means the intentional destruction of an unwanted embryo/fetus (for brevity I will use the term fetus from here on, though many abortions occur at the embryonic stage.) So when stories started making the rounds about emergency room doctors letting patients with ectopics get to the brink of death before acting, they are met with skepticism.

It’s actually a very plausible scenario, especially in an environment of uncertainty. The definition of “abortion” varies by source, but it in medical terms it refers generally to a loss of pregnancy due to the premature exit of the products of conception. Then there are subtypes:

• Spontaneous abortion, which is a miscarriage;
• Medical abortion, which is the use of medication to induce expulsion of the “products of conception”;
• Surgical abortion, in which a procedure is used to physically remove the fetus and the placenta;
• Missed abortion, in which the fetus has died but has not been expelled;

Note that these definitions do not necessarily include causing the death of the fetus, but merely its expulsion or removal (which is why dilation and curettage – a procedure to remove a dead fetus that has not expelled itself from the body – is also considered an abortion.) While I doubt that even the most hardline pro-lifers would require a woman to carry an already dead fetus until the due date arrives, its removal is actually, technically, an abortion.

If a doctor is in a jurisdiction in which the law is not precise about what is prohibited, or where swift new changes have left things uncertain, he or she may be hesitant to act in any of the above scenarios in which intervention is required in order to remove the fetus. If a state only allows abortion to save the life of the mother, then it is not unreasonable that a doctor will wait until a situation like an ectopic becomes dire or waste time consulting with hospital lawyers before treating.

Statutory drafting must be done with precision and exactitude, a fine tip pen and not a broad brush. No doubt there will still be some confusion: what does it mean to say the mother’s life is endangered? Pregnancy is inherently dangerous. Must she be on the brink of death? Is it enough that the mother is ten years old and her body is not equipped to carry a pregnancy? What if the mother threatens to kill herself if she is made to carry to term?

These considerations, taken with the fact that we will have 50 different statutes around the country, make it crucial that legislators are careful with their words. The “hyperbole” is not uncalled for; we have had legislators propose that doctors be required to perform the non-existent procedure to transfer an ectopic pregnancy and implant it in the uterus and other such asinine proposals that reveal their ignorance on the topic.

I have not read the statutes from all states currently taking a hardline on abortion, and it’s possible that they are all very clear and precise; that would be unheard of in the annals of the law, but it’s possible. I write here merely to explain that yes, there are things that are considered “abortion” that do not refer to the intentional killing of the fetus. Doctors are not lawyers, usually, and are now left to decide whether routine medical care could cost them their licenses or even their freedom.

Where the law is unclear, there will be test cases. Hopefully, those cases don’t involve worst-case scenarios — but I fear they will.