Abortion opponents claim that there’s never a medically necessary reason for abortion. That flies in the face of medical reality. So in states with abortion bans, they’re simply redefining abortion to make their point — and make it easier to criminalize.
Protesters speak through megaphones at the fiftieth annual March for Life rally on January 20, 2023, in Washington, DC. (Chip Somodevilla / Getty Images)
Nearly two years into our post-Roe reality, the effect of state abortion bans is every bit as bad as expected.
Physicians in Louisiana report that the state’s near-total abortion ban, which went into effect in July of 2022, has resulted in pregnant patients being denied care for miscarriages, given unnecessary C-sections, and made to wait until their lives are at risk before receiving abortion care.
One Louisiana maternal-fetal medicine specialist described the case of a pregnant patient who was forced to remain pregnant despite having serious cardiac complications that threatened her life:
She was quite sick, and they said, ‘No. We have to maximize all medical management options before we could offer any sort of termination procedure.’ And I’m thinking, but what if she doesn’t want to wait that long because she could have a heart attack and die? At what point can you act? How many cardiac meds have to fail? And in that case, the patient had no voice. There is no shared decision-making.
Doctors in states with abortion bans and restrictions are terrified of breaking the law. Punishments for not complying include hundreds of thousands of dollars in fines, the loss of their medical license, and felony charges that come with years in prison.
The bans’ narrow and ill-defined exceptions create confusion, uncertainty, and fear for patients and physicians, which is all part of the antiabortion movement’s strategy. By dictating the conditions that qualify for legal abortion care under the state bans, and even the types of procedures allowed to be performed, antiabortion officials are changing medical norms — putting patients at great risk.
Antiabortion advocates know that public support for legal abortion has never been higher. Polls show that abortion bans are deeply unpopular, even among Republican voters. In response to the public outcry over pregnant patients nearly dying after being denied care or being forced to leave their home states to receive emergency abortion care, the antiabortion movement is on a mission to change the meaning of abortion to separate it from health care.
A longtime antiabortion talking point is the claim that abortion is never necessary under any medical circumstance. And pro-life leaders have been working especially hard the past few years to make that a reality by redefining abortion and divorcing it from health care. That way, antiabortion lawmakers can claim to care about protecting women facing life-threatening pregnancies and at the same time criminalize abortion at all stages of pregnancy.
This campaign requires antiabortion officials to dictate to providers when and how to care for pregnant patients under the newly enacted state abortion bans. Doctors have been speaking out about the fear and confusion around the strict bans, which often include vague, nonmedical language that can be interpreted in any number of ways. This vagueness is the point. Sowing fear and doubt creates a chilling effect, with physicians so afraid of severe penalties that they often interpret the laws in the most conservative terms.
“Our attorney general, Jeff Landry, sent us all a letter saying, ‘I will put you in jail if you break these rules.’ Literally, I am out to get you, so don’t break these rules,” says a physician in Louisiana. “So, you do feel a little bit like there’s a target on your back because you want to do what’s right for the patient.”
Playing Fast and Loose With Terminology
As Florida’s six-week abortion ban went into effect on May 1, an emergency public health ruling was simultaneously announced that requires doctors to send abortion reports to the state and mandates how doctors should end pregnancies for patients with life- or health-threatening complications. The language in this unscientific set of medical guidelines could even force doctors to give pregnant patients C-sections or force patients to deliver nonviable fetuses vaginally instead of providing standard abortion care.
In a highly ideologically motivated statement about the need for the emergency ruling, Florida’s Agency for Health Care Administration (AHCA) announced that
the agency finds there is an immediate danger to the health, safety, and welfare of pregnant women and babies due to a deeply dishonest scare campaign and disinformation being perpetuated by the media, the Biden Administration, and advocacy groups to misrepresent the Heartbeat Protection Act and the State’s efforts to protect life, moms, and families.
The trend to blame doctors and abortion supporters for the confusion caused by their own restrictive bans is a tactic used in many conservative states in the past two years. Antiabortion lawmakers know that their bans cause suffering and chaos. In states like Florida, to preemptively absolve themselves of blame, officials have released guidelines to demonstrate that they are working with doctors to explain what constitutes legal health care. In reality, the rulings and guidelines simply add another layer of legal enforcement to existing barbaric bans.
By removing treatment for common medical emergencies from their definition of abortion care, antiabortion advocates can deny that abortion is needed to treat patients facing life-threatening pregnancies.
The Florida ruling states that the treatments for ectopic pregnancies and trophoblastic tumors are not considered abortions and do not need to be reported as such. Similarly, if treatment is necessary to protect the life of the pregnant woman and the fetus does not survive, “the incident does not constitute an abortion.”
By removing treatment for these more common types of medical emergencies from their definition of abortion care, antiabortion advocates can deny that abortion is needed to treat patients facing life-threatening pregnancies.
Extremist organizations are pushing an entirely new vocabulary in their long-term strategy to make abortion illegal and inaccessible nationwide. In their “Glossary of Medical Terms,” the antiabortion group American Association of Pro-Life OBGYNs recommends using the term “maternal-fetal separation” rather than abortion, which they only recommend to “prevent the mother’s death or immediate, irreversible bodily harm, which cannot be mitigated in any other way.” They suggest the term “life-limiting fetal anomaly” rather than “incompatible with life” and “pre-viable” embryo or fetus rather than “nonviable.” Another terminology swap suggested by many antiabortion groups is to refrain from the term “abortion ban or restriction,” and instead use the term “abortion regulation” or “abortion protections,” defined as protective laws for the health of women as well as “unborn children.”
The antiabortion movement’s rhetorical crusade is working. Many states have introduced or passed bills that use the same deceptive language and enforce ideological and religious positions as scientific norms.
In Oklahoma, a proposed bill would potentially force doctors to perform C-sections instead of providing lifesaving abortions and redefine lifesaving abortions as “pre-viability separation procedures,” specifying that “the term does not include an abortion.”
Idaho, which has led the charge in state efforts to criminalize abortion, has made performing an abortion a felony punishable by two to five years in prison, with the only exception when an abortion is “necessary to prevent the death of the pregnant woman.” In the state supreme court’s defense of the ban, it further clarified that doctors treating women with life-threatening pregnancies had to “remove that unborn child in a manner that provides the best opportunity for survival (e.g., vaginal delivery or cesarean delivery),” rather than performing a standard abortion. The Idaho Supreme Court case also concluded that a fetus must be developing to fall under the definition of pregnancy, which means that “treatments” for pregnancies where the unborn child is no longer developing, plus ectopic pregnancies, are not considered abortions under the ban.
South Dakota has one of the nation’s strictest bans, prohibiting abortions unless they’re necessary to save the life of a pregnant person with no exceptions for preventing serious injury to the patient or for cases of fatal fetal anomalies, rape, or incest. A bill passed in March would require state officials to create an educational video describing the state’s abortion law to help doctors understand when they can terminate a pregnancy without risking prison time. Antiabortion Republican representative Taylor Rehfeldt, who introduced the bill, says treatments for miscarriages or an ectopic pregnancies do not count as abortions and therefore are allowed, and that her bill would “give doctors and hospital attorneys confidence to distinguish between legal and illegal procedures.”
Nisha Verma, an OB-GYN in Georgia and a spokesperson for the American College of Obstetricians and Gynecologists, said in response to the bill, “There’s no way that you can create a video that talks about any type of inclusive list of conditions where you can and can’t provide care.” Samantha Chapman, ACLU of South Dakota advocacy manager, said that the bill doesn’t address the abortion ban putting patients’ lives at risk and instead “gives antiabortion activists a guise to appear to care about pregnant patients while actually passing legislation that further enshrines antiabortion cruelty.”
The antiabortion movement’s rhetorical crusade is working.
Wisconsin tried to pass a bill in 2023 that would have redefined abortion to exclude any treatment “not designed or intended to kill the unborn child, including an early induction or C-section performed due to a medical emergency or the removal of a miscarriage or an ectopic pregnancy.” Republicans claimed that the bill would “clarify” the state’s abortion ban, but Democratic senator Kelda Roys, the coauthor of a bill that would repeal Wisconsin’s 1849 ban completely, says the Republican bill would only solidify the criminal ban and deceive Wisconsinites. “I understand that it’s inconvenient for the anti-choice movement — which wants to criminalize all abortions — to admit that abortion is sometimes necessary to save a woman’s life and the fact of the matter is just saying, well, it’s not really abortion doesn’t change the fact that of course it’s abortion,” said Roys.
A High-Stakes Game
The Charlotte Lozier Institute, the well-funded antiabortion research and education arm of Susan B. Anthony Pro-Life America, has released practice guidelines that do not categorize the treatment of ectopic pregnancy, miscarriage, and molar pregnancy as abortion, and recommend that treatment for emergency abortions be done by “induction of labor, or by cesarean section,” rather than much safer and quicker abortions.
The guidelines acknowledge that “many physicians are repelled by the idea of performing a cesarean section in order to avoid dismembering the fetus” but chide those doctors for placing the health of pregnant people above “respect for the human dignity of the fetus, even if she is too young or sick to survive.” Forcing major abdominal surgery on patients with life-threatening pregnancies in order to preserve the body of a nonviable fetus is becoming an accepted practice in some conservative states.
The language used by Charlotte Lozier Institute, arguing that it’s only acceptable for a physician to perform an abortion before fetal viability if “the mother is facing death or immediate irreversible bodily harm which cannot be mitigated in any other way,” has been replicated in many antiabortion state laws and guidelines.
Exceptions to abortion bans and restrictions have proven to be largely meaningless. Doctors, long vilified by antiabortion leaders, are now being asked to trust Republican lawmakers when they promise not to prosecute physicians struggling with the impossible task of keeping patients safe while abiding by laws that ignore medical standards. Physicians point out that Republican attempts to “clarify” existing bans by leaning into language about “reasonable medical judgment” are not reassuring when antiabortion lawmakers have not historically trusted doctors’ judgment around reproductive health issues.
Doctors and abortion-rights supporters are pointing out the danger and absurdity of the antiabortion movement’s crusade to redefine medical terms and legally enshrine ideologically motivated and unscientific health guidelines. By making up words and dictating medical norms, the antiabortion movement is hoping to completely divorce abortion from health care, claiming that abortion is never medically necessary and furthering their goal of criminalizing abortion nationwide.
Republican antiabortion lawmakers are engaged in a delicate balancing act: pretending to care for pregnant people during a highly charged election year while outrage over abortion bans grows, and kowtowing to the powerful antiabortion special interest groups that keep them in power.
This is no game for the millions of people risking their lives to have children and dealing with the consequences of having their reproductive decisions made for them.