on Jul 7, 2022
at 3:21 pm
This article is part of a symposium on the court’s decision in Dobbs v. Jackson Women’s Health Organization.
Elizabeth R. Kirk is director of the Center for Law & the Human Person at the Columbus School of Law at the Catholic University of America. She is an associate scholar at Charlotte Lozier Institute. Dr. Ingrid Skop is an obstetrician-gynecologist and is senior fellow and director of medical affairs at Charlotte Lozier Institute.
Many are grappling with the legal and practical consequences of the Supreme Court’s decision in Dobbs to overturn Roe v. Wade. Among the most common claims of politicians and media pundits is that the court’s decision means that states that choose to limit or ban abortion will also prohibit women from receiving life-saving medical care for ectopic pregnancies and miscarriages. Indeed, the dissent predicts that, as a result of its decision in Dobbs, “the Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion. … [H]ow about the use of dilation and evacuation or medication for miscarriage management?”
While it has tremendous consequences, the majority’s decision has no impact whatsoever on medical care in these situations. It was, instead, a simple matter of constitutional interpretation: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Therefore, after 50 years, the people and their elected representatives will once again govern themselves on the matter of abortion.
The decision in no way restricted access to abortion, much less vital medical care for women. The statute at issue in Dobbs did not deal with a prohibition on medical care in such circumstances. The Mississippi statute, which bans elective abortions after 15 weeks, specifically excludes from the definition of abortion the use of medicines or procedures performed “to terminate an ectopic pregnancy, or to remove a dead unborn human being.”
Moreover, in its decision the court did not hold, or even signal, that pregnancy-related medical care was on the chopping block. To the contrary, among the legitimate state interests listed as justifying future regulation or prohibition of abortion, the court specifically identified “the protection of maternal health and safety.”
When thinking about the scope of conduct state legislators might prohibit in the wake of Dobbs, there are two points to emphasize: one medical and the other legal.
The first point is to distinguish the medical treatment of ectopic pregnancies and miscarriages from abortion procedures. Medical treatment of a pregnant mother and her child seeks to protect the life and health of both patients, where possible. In contrast, the purpose of abortion is to cause the death of one of the patients, namely the unborn child. An abortion procedure is not the same thing as treatment for an ectopic pregnancy or miscarriage management, which even Planned Parenthood admits.
In the event that a pregnancy implants in an extrauterine location (most commonly the fallopian tube), it cannot continue to develop until such a time as the fetus can survive separated from her mother. An ectopic pregnancy poses life-threatening risks to the mother from tubal rupture and catastrophic bleeding if no intervention is performed.
The indication and interventions for treating ectopic pregnancy versus elective abortion are vastly different. Mifepristone and misoprostol, used commonly to provide medical abortions, specifically do not treat a pregnancy outside of the uterus, and deaths have occurred in women seeking abortion when this condition has not been first ruled out. With respect to pregnancy loss (miscarriage), the treatments are sometimes the same as those for abortion (e.g., dilation and suction or misoprostol or, uncommonly, a combination of mifepristone/misoprostol). But the purpose is vastly different, i.e., removing an already dead fetus versus causing the death of a fetus.
It is rare for significant hemorrhage to occur in the setting of an incomplete miscarriage while the fetus is still alive, but if this were to occur, the exception for termination for the “life of the mother” would apply and the obstetrician would be able to use his or her clinical judgment to determine the necessary treatment. In other words, standard medical procedures are available to treat pregnancy-related conditions such as ectopic pregnancies and miscarriages even when states restrict elective abortion.
The second point is that, upon inspection, laws reflect the medical reality of authentic pregnancy-related medical care. It is useful to consider examples from some of the most pro-life states in the nation as bellwethers for what is likely to happen in the wake of Dobbs.
For example, Texas law, which prohibits abortions after a detectable heartbeat, defines abortion as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. … An act is not an abortion if the act is done with the intent to: … (B) remove a dead, unborn child whose death was caused by spontaneous abortion [i.e., a miscarriage]; or (C) remove an ectopic pregnancy.” The statute also specifically provides an exception where the physician believes a medical emergency exists.
Oklahoma’s new ban on abortions after fertilization contains a nearly identical definition of the term abortion, specifically excluding removal of an ectopic pregnancy and miscarriage management. The statute also contains an exception for abortions “necessary to save the life of a pregnant woman in a medical emergency.”
Louisiana amended its trigger law and specifically provides exceptions for treatment of ectopic pregnancies and miscarriages. It provides that abortion does not mean: “(ii) The removal of a dead unborn child or the inducement or delivery of the uterine contents in case of a positive diagnosis … that the pregnancy has ended or is in the unavoidable and untreatable process of ending due to spontaneous miscarriage …. (iii) The removal of an ectopic pregnancy. (iv) The use of methotrexate to treat an ectopic pregnancy.” The statute also excludes from the definition of abortion a procedure done “to prevent the death or substantial risk of death to the pregnant woman due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”
Like the Mississippi statute, in each of these statutes, contrary to the dissent’s cries of alarm and what is starting to look like coordinated fearmongering, states have demonstrated that it is possible to both restrict abortion to all but the most limited of circumstances and ensure that pregnant women continue to receive life-saving medical care.