The moment Ruth Bader Ginsburg died, I knew Roe’s days were numbered. Sometime in 2019, a conservative friend texted me that Donald Trump was saving Amy Coney Barrett for when RBG dies. Sure enough, Trump tapped Coney Barrett shortly after trailblazing justice’s death, with Mitch McConnell steamrolling the nomination through the Senate just ahead of the 2020 election. By the following September, the conservative majority Supreme Court refused—by way of the “shadow docket”—to block Texas law SB8, which banned nearly all abortions, and with that, functionally overturned Roe, before officially doing so nine months later.
With nearly 50 years of precedent wiped away, and an existing constitutional right to an abortion eliminated, I worried about all the cruel and chaotic scenarios that could play out, such as doctors being afraid to treat miscarriages. One of the reasons Roe was decided so broadly in 1973 was because doctors found themselves hamstrung by existing legislation, more worried about losing their medical licenses than their patients.
Unfortunately, that’s what played out after the 2022 Dobbs decision striking down Roe v Wade, with The New York Times reporting weeks later how “the uncertain climate has led some doctors and hospitals to worry about being accused of facilitating an abortion, a fear that has also caused some pharmacists to deny or delay filling prescriptions for medication to complete miscarriages, providers and patients say.” A Texas hospital refused to provide a procedure known as dilation and curettage, or D&C, for a woman who appeared to be in the middle of a “miscarriage in process.” and instead sent her home to bleed in her bathtub over two days. More recently, an Oklahoma woman was told to wait until she was “bleeding out” before coming back for treatment for her partial molar pregnancy.
For millions of women, it’s more dangerous to be pregnant in post-Roe America, and there have been countless stories of doctors refusing to treat women who are miscarrying in Ohio, Wisconsin, Missouri, and Texas, which was recently back in the news under particularly awful circumstances. The plight of Kate Cox, a Dallas-area mother of two, again highlighted the seemingly intentional vagueness of abortion-ban exceptions. Cox would appear to be an ideal candidate for an exception given that her 20-week-old fetus was diagnosed with trisomy 18, a defect which has roughly a 95% fetal death rate. She also already had two C-sections, and having more such surgeries could endanger the mother’s life.
With three overlapping abortion bans in Texas, according to NPR, the procedure “is illegal in the state from the moment pregnancy begins” and doctors can only legally “provide abortions in the state only if a patient is ‘in danger of death or a serious risk of substantial impairment of a major bodily function.’” While “doctors, hospitals and lawyers have asked for clarity on what ‘serious risk’ of a major bodily function entails,” notes NPR, “the Texas attorney general’s office has held that the language is clear.” Republican attorney general Ken Paxton, the villain of this story (and others), reminded doctors that a lower court ruling saying Cox could have an exception to the draconian law “will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”
Some may argue that the vagueness in the law is inadvertent, but my guess is that it’s intentional, a way to prevent doctors from treating these women and making sure exceptions are never implemented. Greer Donley, a law professor at the University of Pittsburgh whose research includes the workability of medical exceptions to abortion regulations, wrote in the Times that “the [Texas] law does have a narrow exception allowing abortions in some medical emergencies, but it is written in such a vague and confusing way that it is difficult for even experts on this topic, like myself, to parse.”
