Medical exemptions in abortion bans will not protect women’s health

After the decision of the Supreme Court in June in Dobbs v. Jackson Women’s Health Organization overturned Roe vs Wade (1973) and abolished the constitutional right to abortion, numerous triggering bans from different states have come into force. As of August 25, 13 states prohibit or severely restrict access to abortion. Each of these laws, however, contains a clause that allows doctors to perform abortions in the event of a medical emergency. Politicians say these provisions will prevent the death of women.

But many doctors and abortion rights activists argue that the clauses are unclear and insufficient to protect pregnant women, as well as doctors. And history shows they are probably right.

The problem is how to define a medical emergency and who can define it. Before Roe vs Wade, most states have allowed abortion in an emergency or medical need. Court records indicate, however, that many doctors, nurses and midwives were tried and convicted of performing abortions after the legal system rejected their claims of medical necessity. Prosecutors, judges and juries decided what was medically necessary – not doctors and patients – leaving doctors to the whim of the legal system to exercise their best medical judgment.

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

The allegations depicted how, in this period, when abortions led to infection or death, officials often arrested doctors, even though the exception in the states’ abortion bans theoretically protected them when they felt that abortions were necessary from the point of view. from a medical point of view. Typically, when abortions were performed safely, prosecutors were either unaware of the procedures or chose to look the other way as 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”, therefore necessitating an abortion. At the trial, the state called three other doctors to testify who claimed otherwise. JE Jose – who had previously cared for Duncan but hadn’t seen her for over a year – cared for Duncan after the operation and testified that she was “in excellent health” and that an abortion was not necessary to her health of hers. She told jurors that “a young woman in a familiar way … is more nervous as a rule … some women are nervous every time they get pregnant”, so she could not be trusted with her testimony about her health. her. Although Jose admitted that “there is no specific rule you can set” for judging when an abortion was necessary to save a woman’s life, she insisted that Duncan’s fears for her health were signs of ” illusion”. In support of Jose’s testimony, two other doctors testified about Duncan’s health, despite never examining her. They did this based on Jose’s reputation as a doctor and her report that she felt better after treatment for the infection. Additionally, as Duncan had previously delivered two babies without incident, the three doctors insisted that he could not suffer from any life-threatening emergencies during his third pregnancy.

Despite Duncan and her husband’s testimony about her poor health for months before the abortion and Johnson’s insistence that she was unwell, a jury convicted the doctor of criminal abortion and the state Supreme Court upheld her. condemnation.

Eventually, the Missouri Supreme Court ruled that Duncan could not be trusted to decide whether her well-being was at risk from pregnancy. They agreed with the prosecutor that his ailments were “imaginary” and that his poor health was just an “illusion”. Additionally, they noted that Johnson may have reason to lie about Duncan’s health to spare himself a significant fine, while Jose does not.

This case revealed how doctors could easily differ on the line between an emergency and an emerging medical situation, leaving a doctor performing an abortion in legal jeopardy. The courts, despite the lack of medical experience, managed to determine where the line was. These cases highlighted how the courts would simply not trust the doctor’s judgment who, after examining a patient, decided that her condition required 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 more clearly define what constitutes a medical emergency under their activation bans. The Missouri Department of Health and Social Services, for example, states that such an emergency is “a condition which, on the basis of reasonable medical judgment, thus complicates a pregnant woman’s medical condition that immediate abortion is required. pregnancy to avert the death of the pregnant woman or for which a delay creates a serious risk of substantial and irreversible physical impairment of one of the main bodily functions of the pregnant woman. The state insists that if the medical judgment of a physician is reasonable, he does not need to fear.

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

History tells us that this lack of clarity means that judges and juries will decide what constitutes a medical emergency, not doctors. And this, in turn, can make doctors reluctant to act, leaving patients at risk. This is why the American Medical Association and the American College of Obstetricians and Gynecologists have argued before the Supreme Court that abortion bans force “doctors to make an impossible choice between respecting their ethical obligations and respecting of 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.

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