Despite what Twitter contrarians who became instant experts on comparative abortion policy last week will tell you, figuring out how accessible abortion is in a particular country requires looking at more than the law on the books. You need to know how statutory language, especially when it’s broadly or vaguey worded, will actually be applied. When the appliers are mostly pro-life fanatics or people who answer to people who are, the results will be very bad:
Louisiana’s trigger laws (which a state judge has temporarily blocked) provide exceptions to the abortion ban if the woman faces potential death or extremely serious injury. Yet again and again, the medical professionals testify that fear of facing prosecution will lead health-care providers to refrain from exercising that exception to act in patients’ treatment interests.
Why? Precisely because it’s not clear from the language in the trigger laws how sick a patient must be to qualify as an exception.
As one provider puts it, the fear of facing “extensive jail time and hundreds of thousands of dollars in fines” if medical professionals interpret the law incorrectly will lead to “patients being turned away for care that they desperately need.”
Similarly, an emergency room practitioner testifies that medical emergencies related to pregnancy will be much harder to evaluate. Medical pros will be working “under threat of prosecution for making critical, lifesaving decisions about how to treat patients with dangerous pregnancies and miscarriages.”
Still another warns that doctors will be reluctant to direct patients to seek emergency treatment amid pregnancy complications, for fear of being accused of “attempting to induce abortion,” possibly resulting in patient death.
And one gynecologist testifies to the fear that doctors will feel forced to “refuse necessary, appropriate care to avoid prosecution.” She notes that it’s unthinkable that she may be forced to “choose between my patients and my liberty.”
The Stasi enforcement statutes that are becoming the cutting edge of anti-abortion authoritarianism will make the problem much worse.
Blackmun’s opinion in Roe has often been criticized — and fairly, as far as it goes — for focusing too much on doctors and the doctor-patient relationship as opposed to the importance of reproductive freedom to women. But I feel there’s been a kind of over-correction in which we’ve lost sight of the extent to which the doctor-patient relationship is an critically important privacy, equality, and liberty interest. Patients are at serious risk when doctors are threatened with severe legal sanctions for performing procedures they believe are necessary to protect the life and health of their patients. And creating this life-threatening uncertainty is a central purpose, not an incidental byproduct, of these laws.