Republicans back bills to clarify abortion medical exceptions

For almost three years, lawsuits and media reports have claimed that pro-life laws and fears of prosecution are preventing doctors from treating pregnant women when they face complications. Since the overturn of Roe v. Wade allowed states to protect unborn babies throughout pregnancy, media outlets have linked pro-life laws to the deaths of pregnant mothers. Pro-life advocates have insisted the laws are clear, blaming media hype and pro-abortion lies for the confusion.

Now, with mixed support from medical groups, Republicans in some pro-life states are pushing to clarify which treatments are allowed—and when—in cases of pregnancy complications. The majority-Republican Kentucky legislature on Thursday overrode the governor’s veto of a bill clarifying the medical exceptions in the state’s abortion law. The same day, lawmakers in Texas held a hearing on a Republican-backed bill that would amend the medical exceptions in that state’s law protecting unborn babies from abortion. But pro-life groups still say the laws are and always have been clear.

“I guess this is how you fight back,” said Dr. Ann Marie Hemmer, a pro-life pediatrician in rural Kentucky. To her and to many other pro-life medical professionals, the confusion over what does or doesn’t count as an illegal abortion under state laws protecting unborn babies makes no sense.

Hemmer agreed that sometimes babies die in attempts to save pregnant mothers during pregnancy complications. “But everybody knows it’s not abortion, and it’s not taking the life of a viable baby,” she said. “It’s when there are medical complications that a baby is delivered because both mom and baby would die.”

Most of the 55-page Kentucky legislation establishes standards for freestanding birthing centers and makes minor changes to other healthcare laws. It also requires hospitals and birthing centers to provide or make referrals for perinatal palliative care when a baby receives a life-threatening diagnosis. Not until the last eight pages does the bill address the medical exceptions in the state’s abortion law.

Rather than stating when abortion is allowed, the law clarifies instead that any actions “that require separating the pregnant woman from her unborn child” are not abortions. It outlines certain permitted procedures and situations in which physicians can separate a mother from her unborn baby, such as “lifesaving miscarriage management” to remove a baby that is dead or in the process of dying due to a miscarriage. Doctors can also take that step to remove a baby that has implanted outside the uterus or perform any procedure to prevent death or risk of death to the pregnant woman.

The Kentucky legislature originally passed the bill in mid-March, but Democratic Gov. Andy Beshear vetoed it on March 25, but majorities in the House and Senate overrode the veto.

The governor claimed in his veto letter that the law “creates an exhaustive list of specific emergency situations in which abortions may be provided to save the life of the mother.” He claims that such a list is sure to leave out some emergency situations, creating gaps in the law that put women’s lives at risk.

Ahead of his veto, a Kentucky Planned Parenthood group wrote to the governor that the language of “separation procedures” stems from pro-life propaganda that attempts to deny abortion as healthcare. The group said the language will require doctors to perform cesarean deliveries or induce labor, which Planned Parenthood says carries more risk to the woman than killing the baby in the womb to remove piecemeal.

“We were spelling out what isn’t an intentional abortion,” Addia Wuchner, executive director of Kentucky Right to Life, said of the bill. She asserts that there were “no ambiguities” in the previous version of the law. But she said pro-life lobbyists and lawmakers were willing to hear the concerns from opponents and work to remove “any chance of ambiguity.” But, she said, abortion supporters ended up not liking it anyway.

Meanwhile, a Texas Senate committee is likely to vote soon on a Texas bill clarifying that state’s medical exceptions. Republican Sen. Bryan Hughes, the author of the state’s civilly enforced heartbeat law, sponsors this bill, which clarifies the definition of a medical emergency. Current law allows abortions if 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.”

This language entered Texas law in 2011. According to John Seago, president of Texas Right to Life, pro-life supporters have always read it as an exception allowing for abortions both to save the woman’s life and to prevent impairment of a bodily organ, whether or not that impairment would put her life at risk. But last year the Texas Supreme Court ruled that the risk of impairment to a major bodily function also had to be life-threatening. Hughes’ bill, crafted with the help of Texas Right to Life and state medical organizations, removed the word “life-threatening” from the medical emergency definition.

“It had always been the legislative intent that there were two circumstances in which a medical emergency exemption kicked in,” Seago said. He says he and some lawmakers disagree with the court’s interpretation of the law. “This bill as drafted was trying to go back to the 14-year-old legislative intent.”

Still, Seago said the law has always been clear and that this bill is not an admission otherwise. He pins any confusion about when doctors can perform abortions in medical emergencies on the “barrage of misinformation, confusion, and some malicious lies” about the laws that have caused some doctors “genuine confusion.” For instance, he pointed to media reports in which doctors have claimed that pregnant women need to be on death’s door for a physician to intervene. “This is not true,” Seago said.

In another recent abortion case, the Texas Supreme Court found that the law does not require a woman to face imminent death before a doctor may address her condition. The bill references that decision, noting that any threat to a woman’s life or bodily function “need not be imminent or irreversible.”

Unlike in Kentucky, physicians’ groups in Texas have come out in support of the legislation. Dr. Ezequiel Silva, chair of the Texas Medical Association’s council on legislation, confirmed that the organization was involved with drafting the legislation and supports the bill as filed.

“Our focus at the TMA is ensuring that our physicians are able to provide the best care possible to pregnant women in our state, especially those that might experience complications,” he said. “We think this legislation is crafted in a way that gives comfort and confidence to our physicians caring for those patients so they can achieve exactly that goal.”

In an emailed statement to WORLD, the Texas Campaign for Mothers—another group involved in crafting the language—thanked the lawmakers for “prioritizing the lives of pregnant women” with this bill. “This legislation will allow doctors to act quickly to save lives when tragic circumstances arise.”

Catie Kelley, policy counsel at the national pro-life policy group Americans United for Life, said that Texas’ law already has strong language that makes clear what medical interventions the law allows. She said her organization respects efforts to promote the health of women and babies but that Americans United for Life is keeping an eye on the Texas bill to ensure pro-abortion groups don’t abuse it to legalize elective abortions. That’s not where the bill appears to be heading at this time, she said, “but we’re curious to see how the legislature treats the bill and goes from there.”

Speaking of both Texas and Kentucky, Kelley added that Americans United for Life’s position is that the existing laws are clear. At the same time, she doesn’t think it’s a contradiction to add further clarification to the law.

“We’re supportive of making the law as clear as it needs to be,” she said. “But it’s hard to believe that the doctors can’t understand what they’re allowed to do when it comes to abortion and when it comes to medically necessary interventions.”