Ever since the nation’s highest court ended abortion rights more than a year ago, vaguely worded bans enacted in some Republican-controlled states have caused bewilderment over how exceptions should be applied.
Supporters have touted these exemptions, tucked inside statutes restricting abortion, as sufficient enough to protect the life of the woman. Yet repeatedly, when applied in heart-wrenching situations, the results are much murkier.
“We have black and white laws on something that is almost always multiple shades of gray,” said Kaitlyn Kash, one of 20 Texas women denied abortion who are suing the state seeking clarification of the laws — one of a handful of similar lawsuits playing out across the country.
State lawmakers there and elsewhere face growing pressure to answer these questions by amending laws in legislative sessions that start in most states next month. But it’s not certain how — or whether — they will.
Before the Supreme Court overturned the 1973 Roe v. Wade decision in June 2022, nearly every state allowed abortion at least until a fetus would be viable outside the womb — around 24 weeks’ gestational age, or about 22 weeks after conception.
Yet the new ruling cleared the way for states to impose tighter restrictions or bans; several had such laws already on the books in anticipation of the decision.
Currently, 14 states are enforcing bans on abortion throughout pregnancy. Two more have such bans on hold due to court rulings. And another two have bans that take effect when cardiac activity can be detected, about six weeks into pregnancy — often before women know they’re pregnant.
Each state ban has a provision that allows abortion under at least some circumstances to save the life of the mother. At least 11 — including three with the strictest bans — allow abortion because of fatal fetal anomalies, and some do when the pregnancy was the result of rape or incest.
But a provision included in a law enacted by Congress in 1986 and signed by Republican President Ronald Reagan said abortion must be available when a pregnant woman’s life is at risk during a medical emergency.
But a lack of clarity over how to apply that rule and other exceptions in state laws has escalated the trauma and heartache some women experience while facing serious medical issues but unable to access abortion in their home states.
The case of Katie Cox, a Texas woman who sued for immediate access to abortion amid a fraught pregnancy and was denied by the state’s top court, received broad attention this month.
Meanwhile, Jaci Statton filed a complaint in Oklahoma claiming the state violated the federal rule. She said in court documents that because her own life wasn’t found to be in immediate peril when doctors deemed her pregnancy nonviable, she was told to wait in a hospital parking lot until her conditioned worsened enough to qualify for life-saving care.
In Tennessee, Nicole Blackmon told reporters that a 15-week ultrasound showed that several of her baby’s major organs were growing outside its stomach and it would likely not survive. Even so, her medical team told her she didn’t have the option to have an abortion. She eventually delivered a stillborn baby because she could not afford to travel out of state for an abortion.
The vagueness surrounding the Volunteer State’s abortion ban has prompted Republican state Sen. Richard Briggs’ push to tweak the law during the upcoming 2024 legislative session. However, it’s unclear how far the measure will advance inside the GOP-controlled statehouse where many members are running for reelection.
Republicans carved out an extremely narrow exception earlier this year, but Briggs, who is a doctor, said the statute still fails to properly help women and doctors. He wants the law to include a list of diagnoses when abortion could be appropriate and protect women with pregnancy complications who may end up infertile if they don’t receive an abortion.