Pro-life states clarify abortion exceptions

Numerous states have adopted laws protecting babies from abortion in the year since the Supreme Court overturned Roe v. Wade, leaving some doctors uncertain about how to help pregnant mothers with health complications. Cases of physicians delaying life-saving treatment for mothers have made the news, and pro-lifers are responding by supporting legislation that clarifies exceptions to pro-life laws.

When the Center for Reproductive Rights sued the state of Texas in March challenging the limited medical exception in the state’s abortion laws, Texas Right to Life called the lawsuit “misdirected.” The lawsuit argued that provisions in the laws didn’t make it clear when doctors could intervene in a pregnancy to save the mother’s life. It cited cases of doctors who thought they needed to wait until the mother was on the brink of death before they could act.

“Pro-life policies already plainly allow doctors to intervene if the life of the mother is in danger,” Texas Right to Life said in a March press release. “Pro-life policies do not require physicians to delay necessary care until the danger is imminent in order to treat a mother.”

In its definition of abortion, Texas statute focuses on “the intent to cause the death of an unborn child,” clarifying that “an act is not an abortion if the act is done with the intent to … remove an ectopic pregnancy.” The law protecting babies starting at conception doesn’t say the woman’s danger of dying must be immediate but instead leaves the decisions to the doctor’s reasonable medical judgment. Although Texas’ heartbeat law uses the term “medical emergency,” the definition of that term doesn’t communicate a requirement that the woman be in critical condition before doctors can act.

But when other state policy groups began working on a bill to clarify the exceptions for doctors, Texas Right to Life jumped in to help finalize the language.

“Our view was that the law really didn’t need to be changed,” said Rebecca Weaver, legislative director for Texas Right to Life. “But this is just a good clarification to give that reassurance to doctors that you … have the ability to exercise your reasonable medical judgment, which was already the case. But this reaffirms that.”

Texas is one of at least six pro-life states that passed bills in 2023 clarifying the life or health of the mother exceptions in their abortion laws. Another half-dozen states have considered similar legislation this year. Governors in Tennessee, Idaho, and North Dakota each signed bills in April clarifying that procedures such as removing ectopic pregnancies do not count as abortions. All three states also replaced controversial language in their abortion laws that classified abortions performed in life-threatening cases as “an affirmative defense to prosecution.” Opponents claimed that meant doctors would have to go to court even if they performed the abortion to save the mother’s life. The new laws provide standard exceptions.

In Utah, a law signed in March redefined a medical emergency abortion exception in an existing but unenforced abortion statute by taking out a requirement that the mother’s medical need must necessitate an immediate abortion. And South Carolina in May passed a heartbeat law that changed some features of a similar 2021 law ruled unenforceable by state courts. Among other things, the new law clarified specific medical conditions that would be acceptable reasons for performing an abortion.

Texas Right to Life supported the clarification bill in Texas, but the Texas Civil Justice League led the push for the legislation. In a June post, the group claimed responsibility for drafting the language, crediting the Texas Medical Association and the Texas Hospital Association for “quietly supporting the effort.”

Texas lawmakers passed the bill in May, and Gov. Greg Abbott signed it in June with little fanfare. It had the support of both pro-abortion and pro-life legislators, including Sen. Bryan Hughes, an author of Texas’ 2021 heartbeat bill. The new legislation clarified that doctors charged for violating the state’s laws protecting unborn babies from abortion have a defense against being convicted of breaking the law in certain cases. It named two: if the doctor had acted to remove a baby who unsafely implanted outside of the uterus in an ectopic pregnancy or to intervene in a case where a woman’s water broke before the baby reached viability.

Both scenarios have come up frequently in the news since the overturn of Roe v. Wade in June 2022. If allowed to continue growing, a baby implanted ectopically can rupture a mother’s fallopian tubes, causing her severe internal bleeding. In the other condition, known as previable premature rupture of membranes (PPROM), a broken amniotic sac makes pregnant mothers vulnerable to infection—including sepsis, a potentially deadly infection of the blood.

“It helps to a certain degree,” Texas Medical Association president Dr. Rick Snyder said of the legislation. “We think this bill is clearly a big step in the right direction, providing clarity for physicians and providers in these complex issues.”

Snyder said he believes the law as it stands allows for abortion if the mother will die without immediate care. But he pointed to other cases in which the mother is not yet in critical condition but could be soon. He told the story of a colleague who said he would have been afraid to discuss chemotherapy—potentially life-threatening to unborn babies—under the current abortion laws with a past patient who received a lymphoma diagnosis while pregnant.

Similarly, in an ectopic pregnancy or PPROM, severe complications don’t always arise immediately but are likely to develop. Snyder said the bill provides clarity in those cases, making it clear that doctors can intervene. “We probably have a little bit more work to do. But this is a start,” he said.

Steven Aden, chief legal officer and general counsel at Americans United for Life, said he doesn’t think the clarification laws were medically or legally necessary in most states. But the demonization of pro-life legislation may have made them “politically necessary.”

“To read the abortion industry’s narrative, you would think that pro-life lawmakers would not want to make any exceptions, because they would want to force an attempt at live birth in virtually every circumstance,” Aden said. “But that’s not true. These are happening in pro-life states. And they show you that state lawmakers there do care about both the mother and the baby.”