Comment: Abortion bans with medical exceptions present threat

By Evan Hart / Special To The Washington Post

After the Supreme Court’s decision in June in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade (1973) and abolished the constitutional right to an abortion, a number of states’ trigger bans snapped into place. As of Aug. 25, 13 states effectively ban or severely limit access to abortion. Every one of these laws, however, contains a clause allowing physicians to perform abortions in cases of medical emergency. Politicians claim these provisions will prevent women’s deaths.

But many physicians and abortion rights activists counter that the clauses are unclear and insufficient to protect those who are pregnant, as well as medical practitioners. And history shows they’re probably right.

The problem lies in how to define a medical emergency; and who gets to define it. Before Roe v. Wade, most states allowed for abortion in cases of medical emergency or necessity. Court records indicate, however, that many physicians, nurses and midwives were tried and convicted for performing abortions after the legal system rejected their claims about medical necessity. Prosecutors, judges and juries decided what was medically necessary — not doctors and patients — leaving doctors at the whim of the legal system for exercising their best medical judgment.

In 1921, for example, Belvie Duncan, a married 23-year-old mother of two, sought an abortion from physician Herbert E. Johnson in Jefferson City, Mo. According to Duncan and her husband, she had suffered for months after a bout of typhoid fever, leaving her very thin and bedridden. She could barely care for her two children. Her husband agreed that she would not be able to give birth safely, so the couple visited Johnson, who agreed she was not well and performed the procedure. Unfortunately, the abortion led to an infection and bleeding, which necessitated treatment, leading to Johnson’s arrest for felony abortion.

The charges typified how, in this period, when abortions led to infection or death, officials often arrested physicians; even though the exception in states’ abortion bans theoretically protected them when they believed abortions were medically necessary. Generally, when abortions were performed safely, prosecutors either didn’t know about the procedures or chose to look the other way since there was no harm to the patient. But when a complication arose, it was a different story.

Johnson insisted that Duncan was “very anemic and very weak,” thereby necessitating an abortion. At trial, the state called three other doctors to testify who claimed otherwise. J.E. Jose — who previously cared for Duncan but hadn’t seen her in more than a year — tended to Duncan after her operation and testified that “she was in very good health” and that an abortion was not necessary for her health. He told jurors that “a young lady in a family way … is more nervous as a rule … some women are nervous every time they become pregnant,” thus her testimony about her health could not be trusted. Although Jose admitted that “there is no specific rule you can set down” to judge when an abortion was necessary to save a woman’s life, he insisted that Duncan’s fears about her health were signs of a “delusion.” To support Jose’s testimony, two additional doctors testified to Duncan’s health; despite never having examined her. They did so on the basis of Jose’s reputation as a physician, and his report that she felt better after her treatment for the infection. In addition, because Duncan previously delivered two children without incident, the three physicians insisted she could not be suffering from any life-threatening emergency during her third pregnancy.

Despite testimony from Duncan and her husband about her poor health for months before the abortion and Johnson’s insistence that she was not well, a jury convicted the doctor of felony abortion and the state’s Supreme Court upheld his conviction.

Ultimately, the Missouri Supreme Court decided that Duncan could not be trusted to decide whether her well-being was at risk from the pregnancy. They agreed with the prosecutor that her ailments were “imaginary,” and that her poor health was only a “delusion.” In addition, they noted that Johnson might have reason to lie about Duncan’s health to spare himself from a significant fine, whereas Jose would not.

This case revealed how physicians could easily differ on the line between an emergency and an emergent medical situation, leaving a doctor performing an abortion in legal jeopardy. Courts, despite a lack of medical expertise, got to determine where the line stood. These cases exposed how courts would not simply trust the judgment of the doctor who, after examining a patient, decided that her condition necessitated an abortion. And as Jose admitted in Johnson’s trial, there weren’t always clear guidelines for courts to follow.

Today, states are trying to define more clearly what constitutes a medical emergency under their trigger bans. The Missouri Department of Health and Social Services, for instance, claims that such an emergency is “a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” The state insists that if a doctor’s medical judgment is reasonable, they have no need to fear.

But while politicians believe this definition is clear, physicians argue that making such medical judgments is more complex than many politicians understand. Lisa Harris, a physician, wondered “how imminent must death be” to fulfill the criteria under the Missouri definition. Could the potential or likelihood of serious complications in the future suffice?

History tells us that this lack of clarity means that judges and juries will decide what constitutes a medical emergency, not doctors. And that, in turn, may make doctors hesitant to act, leaving patients at risk. This is why the American Medical Association and the American College of Obstetricians and Gynecologists argued before the Supreme Court that abortion bans force “clinicians to make an impossible choice between upholding their ethical obligations and following the law.” As long as doctors have to worry about potential legal repercussions, they will be stuck in this conundrum with potentially catastrophic consequences for some women.

Evan Hart is an assistant professor of history specializing in women’s history and the history of medicine. She’s currently working on a history of abortion in Missouri.