Some state abortion bans are causing confusion, and it is uncertain whether lawmakers will clarify them

Since the nation's highest court struck down abortion rights more than a year ago, vaguely worded bans in some Republican-controlled states have caused bafflement over how to apply exceptions.

Advocates have touted these exemptions, tucked into statutes restricting abortion, as sufficient to protect women's lives. But repeatedly, when applied in heartbreaking situations, the results are much darker.

“We have black and white laws about something that is almost always several shades of gray,” said Kaitlyn Kash, one of 20 Texas women who have been denied abortions and are suing the state seeking clarification of the laws — one of only a handful of similar lawsuits that are taking place. through the whole country.

State lawmakers there and elsewhere face increasing pressure to answer these questions by changing laws during legislative sessions that begin next month in most states. But it's not certain how – or if – they will do that.

Before the Supreme Court overturned the 1973 Roe v. Wade decision in June 2022, nearly every state allowed abortion at least until a fetus would be viable outside the uterus — around 24 weeks' gestation, or about 22 weeks after fertilization.

Still, the new ruling cleared the way for states to impose stricter restrictions or bans; Several countries already had such laws on the books in anticipation of the decision.

Fourteen states currently maintain bans on abortion during pregnancy. In two others, such bans have been suspended due to court rulings. And another two have bans that come into effect as soon as heart activity can be detected, about six weeks into pregnancy – often before women know they are pregnant.

Every state ban contains a provision allowing abortion under at least certain circumstances to save the life of the mother. At least eleven – including three with the strictest bans – allow abortion for fatal fetal abnormalities, and some do so even if the pregnancy resulted from rape or incest.

But a provision included in a law passed by Congress in 1986 and signed by Republican President Ronald Reagan said abortion must be available when a pregnant woman's life is in danger during a medical emergency.

But a lack of clarity on how to apply this rule and other exceptions in state law have escalated the trauma and grief some women experience as they face serious medical problems but cannot access abortion in their home state.

The case of Katie Cox, a Texas woman who sued for immediate access to abortion during a difficult pregnancy and was denied by the state's highest court, received widespread attention this month.

Meanwhile, Jaci Statton filed a complaint in Oklahoma, claiming the state violated the federal rule. She said in court documents that because it was not determined that her own life was in immediate danger when doctors deemed her pregnancy unviable, she was told to wait in a hospital parking lot until her condition deteriorated enough to qualify for life-saving care.

In Tennessee, Nicole Blackmon told reporters that a 15-week ultrasound showed that several of her baby's major organs were growing outside the stomach and that the baby was unlikely to survive. Still, her medical team told her she did not have the option to have an abortion. She ended up giving birth to a stillborn baby because she couldn't afford to leave the state for an abortion.

The vagueness surrounding the Volunteer State's abortion ban has prompted Republican Senator Richard Briggs to amend the law during the upcoming 2024 legislative session. However, it is unclear how far the measure will progress within the Republican Party-controlled state House, where much members nominate themselves for re-election.

Republicans made an extremely narrow exception earlier this year, but Briggs, who is a physician, said the statute still fails to properly help women and doctors. He wants the law to include a list of diagnoses for which abortion might be appropriate and to protect women with pregnancy complications who could become infertile if they don't have an abortion.

Other states have taken steps to address the confusion in 2023, but advocates say they have not fully accomplished their task.

In Texas, lawmakers this year added a provision that gives doctors some legal protection when terminating a pregnancy in cases of premature rupture of waters, also called hydrochloric acid, or ectopic pregnancies. which can lead to dangerous internal bleeding.

Across the country, advocates on both sides expect more lawmakers will consider adding or clarifying exceptions and definitions to the abortion ban in 2024, though few if any such measures have been introduced so far.

“What is and is not an abortion, what is an abortion emergency?” says Denise Burke, senior counsel at Alliance Defending Freedom, a conservative Christian legal advocacy group that is behind many anti-abortion lawsuits. “That may need some clarification in some areas.”

Meanwhile, in a state where Democrats are in control, lawmakers are expected to push to loosen abortion restrictions and expand access.

This year, Maine became the seventh state to have no specific limit on when an abortion can be obtained during pregnancy.

Greer Donley, an associate professor at the University of Pittsburgh School of Law who is an expert on abortion law, said there could be impetus for more changes like this: “Many people are wondering if there should be a limit at all must exist. ”

The line is sharp in Texas, where changes are unlikely in 2024 because lawmakers are not scheduled to meet.

In Texas, Kash and 19 other women who were denied abortions, plus two doctors, have filed a lawsuit with the state Supreme Court seeking to clarify when abortions should be allowed.

Kash, who already had one child, was overjoyed at the thought of telling family and friends she was expecting. But after a routine ultrasound 13 weeks into the pregnancy, she discovered the baby had severe skeletal dysplasia – a condition that affects bone and cartilage growth. Her baby was unlikely to survive birth or suffocate soon after birth.

“Is this where we're talking about termination?” Kash asked her doctor.

“He told me to get a second opinion out of state,” she recalled.

Her health was not in immediate danger of failure, so she did not qualify for any of the limited exceptions that allowed her doctor to provide her with abortion services. Instead, she went to another state to legally terminate her pregnancy.

In oral arguments in the case last month, an attorney for the patients told the judges about the confusion.

“While there is technically a medical exception to the ban,” said Molly Duane, an attorney for the Center for Reproductive Rights, “no one knows what it means and the state won't tell us.”

Beth Klusmann, assistant attorney general, said the law does include guidelines: Doctors must use “reasonable medical judgment” when deciding whether a pregnant woman's life is in danger.

She added that “there will always be louder calls on the edge of an abortion ban.”

Marc Hearron, a lawyer at the Center for Reproductive Rights who is leading the case in Texas, said he doesn't have much confidence in U.S. lawmakers to get it right overall.

“The Legislature has no track record of listening to doctors,” he said. “We certainly won't wait for the legislature to do the right thing.”