Barely moments after the Supreme Court struck down Roe v. Wade, jubilant activists excitedly turned to the next step: criminalizing abortion to the maximal extent possible. This includes blocking women from seeking abortions across state lines, and even empowering citizens to punish people who help those women by hitting them with vigilante lawsuits.
But that’s not all. The rush to criminalize abortion is also opening up a separate front in the abortion wars that involves the treatment process itself. At its core is an unsettling question: How can a doctor be certain whether conducting an abortion to protect a woman from grave injury or death might constitute a crime?
A new development in Louisiana illustrates why this question is urgent and how it constitutes another major conflict defining the post-Roe world. It concerns a lawsuit by women’s health-care groups to halt Louisiana’s “trigger laws,” which criminalized abortion in the immediate wake of Roe being overturned.
Numerous health-care providers in Louisiana just filed affidavits in the case, describing why the trigger laws are such a menace. The affidavits, which were submitted Tuesday morning, argue that the state has passed multiple trigger laws, creating a mishmash of directives to health-care providers that are too vague to be actionable.
But the specifics in their affidavits, which I’ve reviewed, are even more illuminating.
Louisiana’s trigger laws (which a state judge has temporarily blocked) provide exceptions to the abortion ban if the woman faces potential death or extremely serious injury. Yet again and again, the medical professionals testify that fear of facing prosecution will lead health-care providers to refrain from exercising that exception to act in patients’ treatment interests.
Why? Precisely because it’s not clear from the language in the trigger laws how sick a patient must be to qualify as an exception.
As one provider puts it, the fear of facing “extensive jail time and hundreds of thousands of dollars in fines” if medical professionals interpret the law incorrectly will lead to “patients being turned away for care that they desperately need.”
Similarly, an emergency room practitioner testifies that medical emergencies related to pregnancy will be much harder to evaluate. Medical pros will be working “under threat of prosecution for making critical, lifesaving decisions about how to treat patients with dangerous pregnancies and miscarriages.”
Still another warns that doctors will be reluctant to direct patients to seek emergency treatment amid pregnancy complications, for fear of being accused of “attempting to induce abortion,” possibly resulting in patient death.
And one gynecologist testifies to the fear that doctors will feel forced to “refuse necessary, appropriate care to avoid prosecution.” She notes that it’s unthinkable that she may be forced to “choose between my patients and my liberty.”
The critical point is that this will become a major front in our national abortion battle going forward. More than a dozen states have such trigger bans, but this will also apply to states that pass new bans: Murky language about exceptions will constitute an area of extremely bitter moral contestation and could ultimately harm residents of anti-choice states in unforeseen ways.
“Such draconian laws in states with trigger bans or other abortion bans make it difficult if not impossible to provide a standard-of-care to women,” said Joanna Wright, a partner at Boies Schiller Flexner, who is suing the state of Louisiana with the Center for Reproductive Rights and other groups.
Doctors will “stop practicing in these states, and we will see a kind of emptying out of high-quality medical professionals who can render lifesaving care to women,” Wright told me. “Because they don’t want to practice under the threat of criminal prosecution and penalties.”
This may also constitute a point of legal vulnerability for state abortion bans. The lawsuit against Louisiana alleges that its vagueness violates the state constitutional guarantee of due process, because a practitioner cannot be sure what the exceptions cover.
More challenges will be brought against other, similarly vague language. As Wright told me, states banning abortion will find that it’s very hard, or impossible, to define the “medical exception to these laws” in a way that meaningfully preserves the possibility of “necessary and sometimes lifesaving care” in all kinds of urgent situations.
In a way, this is a continuation of what many red states are doing with laws limiting discussion of race and sexuality in classrooms. Just as those are designed to make teachers quake in terror of violating vague directives, chilling their willingness to tackle controversial topics involving sex, gender and white supremacy, so might these abortion bans render medical pros fearful of making certain life-or-death decisions involving female patients at grave risk.
One wonders whether, for some of these legislators, this might constitute a feature of these laws, not a bug.