Old Anti-abortion Laws Are Taking on Unintended Meanings

Even where the words remain the same, a shifting political culture has changed the impact of suddenly revived statutes.

Anti-abortion protesters surrounded by bubbles in front of the Supreme Court
Craig Ruttle / Redux

Abortion opponents seem not to have expected some of the more draconian consequences of the Dobbs decision—that anti-abortion laws would prevent pregnant women who were not seeking abortions from receiving needed treatment for miscarriages, or that women facing dire medical complications from their pregnancies would not be able to get proper care. After all, the anti-abortion laws that were in force in the pre-Roe era before 1973 were almost never used to prosecute doctors treating miscarriages or providing lifesaving care to women, and all of the anti-abortion laws that went into effect this summer (including the one enacted in Indiana in August) specifically allow abortions in cases where they are necessary to save a pregnant person’s life. A National Review article published in late July insisted that no current state anti-abortion law prevents the treatment of miscarriages or ectopic pregnancies.

Yet in Texas last fall, after the Court let Texas’s abortion ban stay in place, and even before Roe was overturned, a doctor denied a woman a dilation-and-curettage procedure (D&C) to remove a dead nine-week-old fetus whose heartbeat had stopped days before. And in Wisconsin this summer, a hospital emergency room refused to treat a woman suffering from an incomplete miscarriage because the doctors involved believed that removing the fetal tissue might run afoul of state law.

That doctors—and hospital lawyers—fear this may have less to do with the restrictive laws per se than with the polarizing political culture that surrounds their enforcement. When the pre-Roe abortion bans were enacted, a culture of trust in the medical profession gave doctors wide latitude to make abortion decisions in medical emergencies, even with highly restrictive abortion laws on the books. But this level of trust no longer exists, and as a result, pre-Roe abortion bans like those in Wisconsin and Arizona—which are once again in force after the Supreme Court’s decision in Dobbs on June 24—may have a very different effect in 2022 than they did before 1973.

The language of the laws has not changed, but the political culture surrounding their enforcement has. If abortion opponents want to make sure that pregnant women who are not seeking abortions receive the medical care they need, they may want to provide greater legal protection for doctors’ decision-making power than they perhaps envisioned.

The state anti-abortion laws of the 19th and early 20th centuries were enacted in a very different political climate—one of increasing respect for the medical profession. In fact, physicians themselves were often the ones who requested these laws, because they wanted to use the legal code to define the boundaries of acceptable medical practice. At a time when state and national professional organizations for physicians, including the American Medical Association, opposed abortion except in cases of medical necessity, doctors across the nation lobbied for state abortion legislation that would not only protect fetal life but would also, in their view, shore up the distinction between legitimate, licensed medical professionals and those they considered unqualified, unlicensed practitioners.

In the era before safe C-sections, which did not become a possibility until the 20th century, emergency abortions performed by licensed doctors during life-threatening childbirth in order to extract a fetus were an unfortunate reality. The public generally trusted doctors to make these decisions. Unless a woman died from an abortion, prosecutors almost never questioned licensed physicians about the abortions they performed. Instead, they used the anti-abortion laws in the mid-20th century to prosecute unlicensed abortion providers, some of whom were associated with organized-crime syndicates. And even then, the unlicensed abortion providers convicted under these laws were not typically charged with homicide; they were instead usually charged with a misdemeanor or low-grade felony that resulted in a prison sentence of no more than five to seven years. This, after all, was what the doctors who lobbied for these laws had envisioned: legislation that would be used to prosecute unscrupulous “quacks,” whose pregnancy terminations allegedly endangered women’s lives, while also legitimating the practices of licensed doctors who resorted to abortion only in cases of medical necessity.

When the anti-abortion movement mobilized in the 1960s and early 1970s in reaction to attempts to liberalize state abortion laws, they did not merely want to preserve the 19th- and early-20th-century restrictive abortion laws, which had stopped short of treating fetuses as full citizens even if they had prohibited most abortions. The anti-abortion activists of the late 20th century envisioned their cause as a comprehensive civil-rights movement for the unborn, and their ideal goal was the Human Life Amendment, which would provide constitutional, nationwide protection for all human life from the moment of conception. This level of legal protection, which had never existed even under state anti-abortion laws, required that abortion be treated as a much more serious offense than it had been previously.

Despite their belief that abortion was murder, the nation’s major anti-abortion organizations, including the National Right to Life Committee, insisted that they did not want to punish pregnant women for abortion, since they considered women who terminated their pregnancies to be victims rather than criminal perpetrators. When the Louisiana legislature considered (and ultimately rejected) a bill in May that would have made women who had abortions liable to criminal prosecution, 70 anti-abortion organizations, led by the National Right to Life Committee, lobbied against the bill on the grounds that their movement had always opposed the idea of punishing women for terminating their pregnancies. Although a minority of abortion opponents are beginning to question this long-standing principle of the anti-abortion movement, the National Right to Life Committee continues to oppose any attempts to punish women for obtaining abortions.

In contrast, the modern anti-abortion movement has never had any desire to exempt abortion providers from criminal prosecution; in its view, abortion doctors are unscrupulous violators of the Hippocratic oath who are in the business of killing rather than healing. They therefore want them to be prosecuted—either to be criminally charged with a felony or, as Texas’s S.B. 8 did last year, subjected to expensive civil lawsuits.

Perhaps it is not surprising, therefore, that recently created anti-abortion laws subject doctors who perform abortions to penalties that far exceed the five- or seven-year maximum prison sentences mentioned in the state abortion laws of the late 19th and early 20th centuries. Alabama’s abortion law, for example, classifies abortion as a Class A felony, which means that a doctor who performs an abortion could be sent to prison for a minimum of 10 years and a maximum of 99. Texas’s Human Life Protection Act of 2021 likewise classifies performing an abortion as a first-degree felony, putting it in the same category as murder and rape. The National Right to Life Committee’s model post-Roe abortion law—which it released in a memo on June 15—recommended that providing an abortion should be classified as a level-two felony, but Alabama and Texas have already gone beyond this.

Yet even while threatening doctors with the stiffest legal penalties, the mainstream anti-abortion movement continues to insist on protecting pregnant women from prosecution for pregnancy terminations, and they continue to argue that they never intend for women to die from lack of access to abortion. After all, even the most restrictive abortion laws that went into effect between June and August of 2022 allow for abortions in cases where a woman’s life is in danger, just as the abortion laws of the late 19th and early 20th centuries generally had. Because they believe that abortion is in a completely different category than prenatal care, abortion opponents never imagined that protecting fetal life could compromise the care that pregnant people receive for miscarriages or life-threatening pregnancy complications. “There is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatments results in the loss of life of her unborn child,” the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) declared in 2012, in a statement that is still posted on the organization’s website. “We confirm that the prohibition of abortion does not affect, in any way, the availability of optimal care to a pregnant woman.”

To physicians within the anti-abortion movement, the distinction may be clear between morally legitimate medical practices, such as using a D&C to scrape a woman’s uterus after a fetal heartbeat can no longer be detected or even inducing labor to deliver a previable fetus whose existence threatens a pregnant woman’s life, and morally illegitimate practices that they believe should be classified as homicides. But those distinctions have been lost on some doctors and lawyers who are unfamiliar with the movement’s ethical reasoning. In the face of new anti-abortion laws that criminalized procedures that were legal only a few weeks or months ago, some doctors and hospital lawyers and administrators have panicked and refused to provide any service that might resemble an abortion, even when state laws did not directly prohibit it.

Perhaps these doctors have legitimate reasons to fear a lawsuit or criminal prosecution. They are operating in a very different cultural moment than the pre-Roe era, when licensed doctors were generally trusted to make their own decisions about medically necessary abortions without having to worry about the imminent threat of prosecution. Public trust in medical professionals has dropped markedly since the early 1970s. The 1973 General Social Science Survey showed that 55 percent of Americans expressed a “great deal” of confidence in organized medicine; by 2018, that number had fallen to less than 40 percent, and to only 34 percent for Republicans in the South. And that was in 2018, before COVID polarized the nation.

Today 25 percent of Americans believe that doctors who illegally perform abortions should go to jail, according to a May 2022 Pew Research poll. While this is still a minority opinion in the United States, it is the guiding philosophy behind newly enacted state anti-abortion laws.

Although many anti-abortion activists, including the doctors in AAPLOG, believe they have given physicians sufficient guidelines to allow them to determine which procedures are licit and which are criminal in treating women with miscarriages and other life-threatening pregnancy complications, the speed with which the anti-abortion laws came into effect and the cultural climate of hostility toward abortion providers in conservative states has led some doctors to avoid such treatment altogether out of fear of criminal prosecution. As the law professor Mary Ziegler notes in a recent Atlantic article, the new populist conservative antipathy toward medical science has raised the stakes in this debate. No doctor wants to lose their medical practice and spend the rest of their life in prison because of a professional misstep.

Many abortion opponents believe that the inclusion in state abortion laws of exception clauses that allow pregnancy terminations to save a pregnant person’s life, coupled in some cases with additional exceptions for the treatment of ectopic pregnancies and miscarriages, should prevent doctors from claiming that the law makes it impossible to adequately treat certain pregnancy complications. But not all medical professionals interpret these laws in the same way that anti-abortion activists do.

If abortion opponents do not want terrified doctors denying needed medical treatment to pregnant women who are not seeking elective abortions but are instead merely trying to get help for a miscarriage or another dangerous situation, they need to find a way to couple their strong advocacy of fetal rights with an equally strong legal protection for medical treatment of pregnancy complications that do not involve elective abortions. Perhaps this strong legal protection was less necessary in an earlier era, when public trust in the medical profession gave doctors much greater freedom to make their own medical determinations without the risk of prosecution. But this legal protection is more necessary now than many abortion opponents imagine—and anti-abortion advocates who value pregnancy and maternal health should take the lead in creating it.