The exceptions to the US abortion ban are not accidentally vague. Uncertainty is the point | Judith Levine

aAnyone who has lived under the control of an abusive spouse or parent knows that the problem is not just about what is forbidden. It’s something you’re not sure is forbidden. The prospect of punishment creates fear. Vagueness about what will be punished encourages caution. Just in case the teen doesn’t hang out with certain friends. The teacher removes the controversial book from the curriculum.

The doctor decides not to perform an abortion when the patient’s health or life is in danger, but perhaps not in the short term.

This is what’s happening in the 21 states that have banned abortion in all but the worst circumstances. It’s what happened to Amanda Zurawski, a resident of Austin, Texas, who discovered after an 18-week pregnancy that her cervix had been prematurely dilated, which meant certain death for her fetus, already named Willow, and posed a serious threat for her own health.

But because there was still fetal heart activity, doctors sent Zurawski home only to become so ill that he qualified for an abortion under the Texas ban. The law only allows the procedure if a patient would otherwise lose an “important bodily function” or die. It doesn’t say when that might be. And no fatal fetal abnormality is taken into account.

Zurawski developed sepsis – a full-body infection – spent three days in intensive care and survived, but it is unlikely her fertility did.

In Zurawksi v. Texas (2023), the Center for Reproductive Rights (CRR) argued on behalf of two physicians and twenty patients that the Texas statute was written so vaguely that health care providers had no way of knowing whether they were breaking the law—risking penalties as severe as imprisonment. – if they did the medically correct thing. CRR called this failure a violation of women’s constitutional right to life.

In December 2023, a lower court judge upheld the law pending further clarification and allowed abortion if the doctor’s “good faith judgment” deemed it necessary. Ken Paxton, the fanatical attorney general of Texas, appealed the order to the Texas Supreme Court. And last week the court lifted the order, pronunciation that the law is perfectly clear.

The Human Life Protection Act “permits a physician to intervene to address a woman’s life-threatening physical condition before death or serious physical impairment is imminent,” Judge Jane Bland wrote. “A doctor who says to a patient: ‘Your life is threatened by a complication that arose during your pregnancy, and you may die, or there is a serious risk that you will suffer significant physical disability unless an abortion is performed performed’, and in the same breath saying ‘but the law does not allow me to perform an abortion in these circumstances’ is simply wrong in that legal assessment.”

In other words, if the patient is harmed, it is the doctor’s fault, not the law’s.

Zurawski v Texas was the first lawsuit challenging a ban on behalf of women with complicated pregnancies since the Supreme Court overturned Roe v Wade in June 2022. There will certainly be more to follow. At the June 4 hearing of the Democratic-led Senate Committee on Health, Education, Labor and Pensions, witnesses detailed what the committee called a national “health care nightmare” caused by the bans and the confusion they cause. In a few places, like Tennessee, elected officials have suggested that lawmakers change the laws to make them easier to understand. But few such proposals have been submitted.

In its lawsuit, CRR asked Texas to strengthen the statute. But the judges did not do that and did not order the legislature to do so. ‘We are back where we started’ said an incensed Zurawski.

They may be even further back than that. With a virtual one hearing Ten days before the ruling, members of the Texas Medical Board sparred with attorneys and health care providers — and with each other — over interpretations of guidelines written to clarify ambiguities in the law. But all the new guidelines did was add a requirement that providers submit copious documentation justifying their decisions. After the five-hour hearing and hundreds of written comments, everyone agreed on one thing: the indecision is worse now.

Why don’t lawmakers clarify their statutes? For starters, they can’t. Most of them wouldn’t be able to tell a fallopian tube from a brake fluid line, and even if they did, there’s no way to codify everything that could possibly go wrong with a problem pregnancy or every medical decision that needs to be made in response . The court in Texas ruled that the doctor who opted against an emergency abortion made an incorrect legal assessment. But while most lawmakers are not doctors, few doctors are also lawyers.

Yet CRR’s attempt to push the state to change a bad law to make it a little less bad is the same tactic the pro-choice legal establishment took during the Roe years — and look where that got us .

The tactic is not only counterproductive. It’s delusional. The vagueness of the laws is not a mistake, and not the result of sloppy or ignorant drafting. Vagueness is the intention. Together with police, prosecutors and vigilantes who enforce the laws, states rely on self-policing. They may even hope that providers will do less than is legally permitted.

And when bad things happen – no matter how “painful” it may be, Bland admitted – the state can avoid blame.