Abortion foes push to narrow ‘life of mother’ exceptions

The pregnancy was terminated to save the woman’s life — an outcome painful for all involved. “This was a very desired pregnancy,” Phillis said.

Now Phillis replays the recent medical crisis in her head, wondering about the implications in a world where Roe v. Wade is overturned and abortion becomes illegal in her home state of Ohio. State lawmakers are weighing a bill to make performing the procedure a fourth-degree felony. Might she be charged with a crime for providing care she believes is moral and necessary?

Terminating a pregnancy to save a mother’s life has long been accepted as a moral imperative by those on both sides of the abortion debate. For decades, jurisdictions that restricted the procedure granted wide leeway to doctors to make exceptions for medical necessity. But now, with the U.S. Supreme Court potentially moving to overturn Roe, the landmark ruling affirming the right to abortion nationwide, emboldened conservatives in some states are pushing to narrow and in some cases eliminate such exceptions, arguing that they create loopholes that are easily exploited. Doctors say such restrictions will complicate medical decisions for pregnant women, increasing the risk of death in a country that already has the highest rates of maternal mortality in the industrialized world.

Idaho Lt. Gov. Janice McGeachin on Monday called for a special legislative session to remove most exceptions from that state’s “trigger law” banning abortion. In Georgia, Pennsylvania and Wisconsin, leading Republican gubernatorial candidates have teamed up with antiabortion groups to push bans that would not allow the procedure even if the mother’s health is endangered. In some states, exceptions for the “life of the mother,” rather than the “health of the mother” have been written into trigger laws or proposed measures, significantly limiting the scope of when they can be used.

“What we are calling for is a total ban, no exceptions,” Matt Sande, legislative director of Pro-Life Wisconsin, said in an interview. “We don’t think abortion is ever necessary to save the life of the mother.”

That rhetoric might be more uncompromising than what some antiabortion advocates actually envision. Even those who support removing most if not all exceptions say that doctors would be able to intervene to save the lives of women in life-or-death situations without being prosecuted. They make a distinction between the death of a fetus that is a consequence of such lifesaving measures, and what they consider intentional killing of the fetus by abortion. McGeachin herself acknowledged “rare medical emergencies in which it may be impossible to save the life of both the mother and the child” and that “a difficult decision may have to be made.”

But the reality of medical practice is complex and judgments must sometimes be made quickly.

Even in states where exceptions are written into law, there is ambiguity about which decisions might be allowed and which might cross the line. The language of exceptions to abortion bans fall on a spectrum, ranging from the narrow “life of the mother” to the more encompassing “health of the mother.” Some states lay out the criteria that judges should use to weigh defenses by doctors who perform what they deem medically necessary abortions, or include caveats that recognize the complex nature of medicine.

But others contain only minimal language about when exceptions might be permitted, which doctors fear could open them to liability and even criminal prosecution. Under the new trigger laws, which would take effect if Roe is overturned, some states would impose criminal penalties of $100,000 and prison sentences of 10 years of more for violations.

Stacy Beck, who specializes in high-risk pregnancies at the University of Pittsburgh Medical Center, wondered whether a woman with late-stage cancer who would have to cease treatments because of her pregnancy would be seen as an exception under some of the more restrictive laws. Or would doctors have to be doing chest compressions on a woman in cardiac arrest for the exceptions to apply? How might judges regard mental health reasons for abortions?

Getting rid of or narrowing the medical exceptions to abortion laws, Beck said, amounts to “stripping women of access to medical care.” She noted that maternal mortality disproportionately impacts women of color, with Black women three times more likely to die of pregnancy-related causes than those who are White.

“These necessary terminations are rare,” she said, “but without them we are going to see maternal mortality go up.”

A dangerous condition

Even in the young and healthy, pregnancy is a dangerous state. It often takes previously existing but not always detectable conditions — including heart disease, high blood pressure and kidney dysfunction — and blows them up.

Life-threatening complications are not uncommon, including a woman’s water breaking early, which could lead to infection or even sepsis. In recent years, the incidence of a condition known as preeclampsia, which typically occurs midway through pregnancy and can lead to spiking blood pressure and protein in urine, has climbed for unknown reasons and is estimated to cause more than 70,000 maternal deaths and 50,000 fetal deaths worldwide each year.

Phillis, who worked as an attorney before going into medicine and is vice chair of the American College of Obstetricians and Gynecologists’ junior fellow college advisory council, said one of the things that is tricky about caring for pregnant women is that so many bodily systems are impacted.

“There’s not one button that says, ‘This one thing is threatening a woman’s life,’” she said. “A lot of it is a slow decline, and at what point is a physician empowered to say that there is an emergency?”

In the years before the high court decided Roe, medical exceptions were common in states that prohibited abortion. Wendy Parmet, a professor of law and public policy at Northeastern University in Boston, said “chaos doesn’t even begin to describe the situation” of how exceptions were granted.

“Wealthy women and those that had influence were more able to get an abortion,” she said. “And on the other hand, those who were less privileged but whose lives were perhaps in even more jeopardy had a harder time.”

Parmet worries that states will be “opening up a can of worms” if they drop or narrow health exceptions in trigger laws banning abortion if Roe is overturned, given their different language for “life of the mother” cases. Idaho, for example, allows for an exception if a physician determines an abortion is “necessary to prevent the death of the pregnant woman.” Missouri makes an exception for a “medical emergency,” and Tennessee allows abortion if it is necessary “to prevent the death of pregnant woman or prevent serious risk of substantial and irreversible impairment of major bodily function.”

Many states would allow individual doctors to make those decisions, while others would require two to sign off.

“If there is no legalized way of abortion in these cases, many women are going to face very significant health problems and be desperate,” Parmet said. “And doctors are going to be put in untenable and unethical situations.”

Editors of The Lancet, a prestigious medical journal, wrote this week that if the U.S. Supreme Court confirms its draft decision, “women will die” and Justice Samuel Alito, who wrote the opinion that was leaked on May 2, “and his supporters will have women’s blood on their hands.”

An analysis published in the journal Demography in 2021 by Amanda Jean Stevenson, a sociologist at the University of Colorado at Boulder, found that health disparities are likely to grow even more stark if women in large swaths of the country lose the right to terminate their pregnancies. Stevenson projected what might happen based on existing maternal mortality rates and the additional number of pregnancies that would be carried to term if all abortions were denied. She found that additional deaths due to an abortion ban would increase 21 percent overall — but would jump 33 percent in Black women.

“These are the only numbers ever that caused me to burst into tears as soon as I finished them,” she said. “Thirty three percent is a really big increase in a frankly catastrophic rate of maternal death in the United States.”

Stevenson said these types of projections are important because “they let us see the future and how we can change it.”

‘Two lives’

Sande, from Pro-Life Wisconsin, which supports abortion bans with no exceptions, said he recognizes the challenges posed by such measures. But he feels strongly that laws should recognize that pregnancies involve two lives — not one — and that doctors should be required to put equal effort into saving both mother and fetus in medical crises.

“As long as a physician is working to save both the mom and baby, and if the baby unintentionally dies, that is not an abortion and that would not be prosecuted,” he said.

One example, he said, might be if a woman has cancer of the uterus and the uterus has to be removed to save her, and she loses the pregnancy as a result. Another would be an ectopic pregnancy, in which the embryo implants outside the uterus and removal of the embryo is required to save the mother’s life. Since neither case involves the intentional destruction of the fetus, he said, it would not be considered an abortion under the proposals he advocates.

“This is obviously divisive,” Sande said. “But I believe we have the most compassionate position.”

Antiabortion groups are not unified in their view of medical exceptions, with the American Association of Pro-Life Obstetricians and Gynecologists also supporting a narrow exception.

Christina Francis, an obstetrician in Fort Wayne, Ind., who serves as the organization’s chair, said the exceptions that most states are proposing to save the life of the mother are consistent with “good medicine” and are how most physicians practice.

“We are pro-life in all circumstances. We believe we should save both the mother and the child. But unfortunately there are cases we can’t save both,” she said.

She said she opposes language permitting broad exceptions for “health” because it “could be construed to mean anything — mental health, social health, socioeconomic factors.”

Those on the other side of the issue worry about the judgment calls made every day in hospital emergency rooms or doctor’s offices that may fall outside restrictive statutes.

Elizabeth Kibler, a 31-year-old from Minnesota, has had two procedures, known as dilation and curettage, or D & C, which are used for both abortions and miscarriages to clear tissue from the uterus. The first was after in vitro fertilization and she miscarried. The second occurred at eight weeks of gestation after a routine checkup found the embryo had stopped developing, but her body had not expelled it so doctors needed to remove it to minimize the risk of complications.

Kibler, who runs an online group for those struggling with infertility, said she has supported multiple women who had to terminate their pregnancies for medical reasons. She said their experiences are among “the most upsetting things” she has witnessed — and they did not have the burden of worrying about whether what they were doing was legal.

Kibler herself experienced a scare when her uterus ripped and she lost half the blood in her body during her first pregnancy, which was ultimately successful. “I almost died the day my son was born,” she said. “Forcing birth will be a death sentence for some.”