Texas should render latest abortion lawsuit moot by making abortion ban clearer
Timothy P. Carney
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Texas law protects any person in the state with a heartbeat from being deliberately killed. Texas law also explicitly allows a doctor to perform an abortion if “a medical emergency necessitated” it.
Yet there is plenty of confusion on this last score, as evidenced by the much-heralded lawsuit by four Texas women.
These women say they were denied the care or abortions they needed because their doctors feared the law. Now, of course, if the women needed medical care that would harm their unborn baby or an abortion, Texas law has an explicit exemption.
The law indicates a “physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child,” but it repeatedly notes that the law’s mandates and restrictions “do not apply if a physician believes a medical emergency exists.”
The language in the law, “physician believes” and “the physician’s belief,” makes it clear that the physician would only be punished if he or she were performing the abortion while not believing it was required by a health emergency. Yet the news media for the past nine months have been full of stories from Texas and elsewhere about the “confusion” and “fear” of doctors who are unwilling to treat an ectopic pregnancy or to perform a dilation and curettage on a miscarried baby.
The New York Times story on the recent lawsuit explains the problem this way:
“Texas, like most states with bans, allows exceptions when a physician determines there is risk of ‘substantial’ harm to a pregnant woman. Yet the potential for prison sentences of up to 99 years, $100,000 fines and the loss of medical licenses has scared doctors into not providing abortions even in cases where the law would seem to allow them. …
“Though they faced the risk of hemorrhage or life-threatening infection from carrying those fetuses, the women were told they could not have abortions, the suit says. Some doctors refused even to suggest the option or to forward medical records to another provider.”
The lawsuit notably does not ask for the court to strike down the abortion law, but “to affirm that physicians can make exceptions, and to clarify under what conditions,” in the New York Times’s wording.
We could debate the root of the confusion and fear. Maybe it comes from dishonest abortion advocates or sloppy media coverage. Maybe it just comes from wary doctors or objectively unclear laws. This is a good debate to have, but it’s a secondary matter.
The primary matter is that some mothers with ectopic pregnancies or similarly life-threatening cases might encounter a doctor who is confused or afraid to take the life-saving steps necessary.
Texas’s Health and Human Services Department could issue clearer guidance that a doctor cannot get into legal trouble as long as she or he believes his treatment is necessary. Every pro-life state should issue clear guidance along those lines. State attorneys general should be crystal clear, too.
Texas could moot this case, protect women, and protect unborn boys and girls by issuing clear guidance about the exceptions. Then, in the media, we can continue our war against the sloppiness, ignorance, and dishonesty that have caused this confusion.