Texas's Abortion Ban Can Never be Made HumaneRoundup
tags: abortion, legal history, Texas, womens history, reproductive rights
Mary Ziegler is a law professor at the University of California, Davis. She's one of the leading historians of the U.S. abortion debate and the author of six books, including her latest, Roe: The History of a National Obsession (Yale University Press, 2023).
Five Texas women filed a lawsuit last week arguing that the medical emergency exceptions written into the state’s criminal abortion laws were endangering the lives of those they were supposed to protect. The suit turns on the vagueness of the state’s medical emergency exception. Starting in 2011, Texas redefined a “medical emergency” to include a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Subsequently, a version of this definition found its way into S.B. 8, the six-week ban allowing virtually anyone to sue those who performed or assisted in an abortion. Yet another iteration appeared in the state’s trigger ban, which outlaws all abortions from the moment of fertilization that do not qualify under the medical emergency exception.
The plaintiffs in the suit, who are represented by the Center for Reproductive Rights, argue that the Texas laws are riddled with inconsistencies and ambiguities. They stress that Texas has sent contradictory messages about which emergent conditions are serious enough to qualify under the law. And they emphasize that the law sends mixed signals about how much deference physicians will receive when acting in good faith. Physicians who do not know what they can do have responded by doing nothing and leaving patients without access to emergency care. The result of the state’s vague laws, the plaintiffs suggest, has been tragedy: patients denied care altogether or “being forced to wait until they are clearly hemorrhaging or showing active signs of infection before they will be offered abortions.”
Make no mistake about it: Texas’ law has unique problems. The state’s conservative lawmakers kept the pre-Roe criminal ban passed in 1925; to circumvent Roe v. Wade, they passed S.B. 8. In 2021, after Donald Trump reshaped the Supreme Court, they passed a trigger law. Inconsistencies crept in, and the result is a mess that frightens doctors away from addressing real emergencies.
But the problems with Texas’ exceptions are broader, and they tell a story about why abortion exceptions as a general matter fail to protect patients. From the time of previous eras’ abortion bans, exceptions were tailored more to prevent free access to the procedure than to address real problems in pregnancy, and state abortion laws today are no exception.
When abortion reform efforts got underway in the 1960s, the American Law Institute proposed what amounted to a menu of exceptions to criminal abortion bans for patients seen to be innocent enough to deserve abortion (the ALI included exceptions for rape and incest, fetal abnormality, and certain health threats). Pushback from anti-abortion lawyers was immediate. They argued not just that abortion was immoral and unconstitutional, but also that the exceptions were an open invitation for fraud. Decades before Todd Akin’s comments about “legitimate rape,” they argued that pregnancy after sexual assault was all but impossible—and that rape exceptions were an excuse for promiscuous women. They framed health exceptions as universally unnecessary, arguing that virtually no pregnancies were life-threatening.
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