After Roe, a debate about what ‘abortion’ means
Even after five decades of argument about abortion in the United States, the most contentious question at the forefront is a very basic one: What is abortion?
Major medical societies, and medical billing codes, define abortion as any procedure that terminates a pregnancy — whether that pregnancy is wanted or unwanted, whether a woman is seeking the procedure to clean out her uterus after a miscarriage, or because of a dire fetal diagnosis, or to terminate a pregnancy that she had not expected.
“An abortion is an abortion is an abortion,” said Dr. Louise King, an obstetriciangynecologist and bioethicist at Harvard Medical School.
Anti-abortion lawmakers and groups disagree, arguing that it’s an abortion only if the woman or her medical provider elects to end the pregnancy. This generally means that terminating a pregnancy in a dire medical situation is acceptable, while terminating an unwanted pregnancy is not.
During the five decades that Roe v. Wade established a constitutional right to abortion, this was mostly a semantic dispute. But in the aftermath of the Supreme Court’s decision to overturn Roe, simply defining the word abortion has taken on new consequences.
States are struggling to define what they will allow. Doctors also are grappling: Those in states that now ban abortion say they have stopped providing the procedures because violations of the law can result in prison terms, fines and the loss of a medical license.
Most laws allow for exceptions to save the life of the woman. But uncertainty about what qualifies as lifethreatening has resulted in what the president of the American Medical Association called “chaos,” as medical professionals try to decide what conditions fall under those exceptions. Women are being denied abortions for miscarriages and to end pregnancies that have little or no chance of survival, or left to become sicker before they can have an abortion deemed to be lifesaving.
That has put politicians who helped enact those laws, largely Republicans, on the defensive in midterm election campaigns. Under fire, they have tried to carve out new definitions of abortion and blame doctors for misunderstanding.
Anti-abortion politicians in Louisiana faced outrage in August when a hospital denied an abortion to a woman carrying a fetus that doctors said would be born without a skull. One of the state’s three bans allowed abortion to end “medically futile” pregnancies. But the fetus’ condition, acrania,
was not specifically included on a list of exceptions.
Jeff Landry, the state’s attorney general, blamed doctors, saying, “it is the hospital that has created ambiguity where there is none.”
“Assuming such a diagnosis was properly certified, the removal of the unborn child is ‘not an abortion,’” he wrote in a letter to the hospital’s general counsel.
Katrina Jackson, a Democrat who sponsored one of the state’s abortion bans, told a local television station that the procedure the woman had been seeking was not an abortion: “This woman is seeking a medical procedure for a pregnancy that is not viable outside of the womb.”
The woman ended up traveling to a Planned Parenthood clinic in New York.
Medical societies and doctors who support abortion rights say defining abortion by intent is a distinction without a difference, because any termination proceeds with the intent to end that pregnancy. And the procedures are the same regardless of whether a woman has had a miscarriage or seeks to end an unwanted pregnancy: Surgically, an abortion involves dilation and curettage, or dilation and evacuation; a medical abortion is done with pills.
They accuse anti-abortion activists of trying to add a value judgment, one intended to suggest that abortion is something only promiscuous women get.
“When something sad or devastating happens, you’re always going to hear the anti-abortion movement saying, ‘That is not abortion,’ because they can’t come to terms with the fact that that is also an abortion,” said Jenny Ma, who has litigated against abortion bans as senior staff attorney for the Center for Reproductive Rights.
Soon after Roe was overturned, Ohio doctors denied an abortion to a 10-year-old girl who had become pregnant by rape, because the state’s ban on abortions after detection of fetal cardiac activity — generally around
six weeks of pregnancy — does not include any exception for rape victims.
However, Catherine Glenn Foster, the president of the anti-abortion group Americans United for Life, testified in Congress that “it would probably impact her life and so therefore it would fall under any exception and would not be an abortion.”
Anti-abortion groups argue that states have carefully crafted bans to make sure that anyone who needs an abortion for medical reasons receives one.
Still, only some state bans — Texas, for example — specify that the procedure is “not abortion” if it is done to treat a miscarriage; others, including Arizona and Wisconsin, make no exception for that.
The language around pregnancy has long been subject to fierce debate. In the early 2000s, anti-abortion groups successfully pushed for a federal ban on an extremely rare termination procedure that is typically done in the second trimester —known medically as intact dilation and evacuation — by rebranding it “partial birth abortion.”
But in the new debate over defining abortion, abortion-rights groups say they themselves may have unintentionally created confusion.
Even when Roe was the law of the land, hospitals often set up committees to decide whether abortion was ethical, or justified as “therapeutic.” So the abortionrights groups set up freestanding clinics to try to expand access. Dr. Jamila Perritt, an obstetrician-gynecologist and the president of Physicians for Reproductive Health, said that encouraged the belief that abortions done at clinics were not the same as those done in doctors’ offices or hospitals where a woman was ending a pregnancy because of cancer treatment, or because of a fetal abnormality.
“I had patients tell me, ‘I’m not like the rest of them, they were careless,’ ” Dr. Perritt said.