#three exceptions doctrine

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Conservatives Want to End 'Exceptions' for Women’s Lives

And they think no one will notice

Jessica Valenti at Abortion, Every Day:

Most of the time, I enjoy making political predictions. This one, however, makes my stomach turn: Conservatives want to do away with ‘exceptions’ for women’s lives. In fact, they’ve been laying the groundwork to eradicate the exception since Roe was overturned—though I didn’t fully piece together the move until recently, when I saw a leading anti-abortion activist refer to life-saving abortions as ‘elective.’

The short version is that they’ve been strategically redefining ‘abortion’ across law, culture and medicine, while pushing the false claim that abortion is never necessary to save a person’s life. The end game is legislation that bans abortion in all cases, mandating that doctors only end life-threatening pregnancies using c-sections or induced vaginal birth, no matter the risk to the pregnant person.  I’ll explain in detail, but please know that like most anti-abortion strategies, this one is being rolled out quietly and incrementally. In the same way that Republicans won’t pass an outright ban on contraception—instead chipping away at access until birth control is impossible to get—the plan is to methodically eradicate the exception right under our noses.  Because the idea of eliminating life-saving abortions is so radical—who would suggest such a thing?—there’s a real risk that Americans won’t notice until it’s too late. The unthinkable-ness of their extremism is protecting them. 

Redefining ‘abortion’

Abortion is a medical intervention to end a pregnancy, for any reason. But since Roe was overturned, conservatives have been trying to redefine abortion as an intention. For instance, they claim that treatment for miscarriages and ectopic pregnancies aren’t really abortions—even if the medication or procedure is identical—because these pregnancies are presumably wanted. In addition to dividing women into those who ‘deserve’ care and those who don’t, the goal is to divorce abortion from healthcare. Even though this definition has no basis in medicine or reality, Republicans have embedded it in state laws and policies anyway—often after being lobbied by anti-abortion groups.

Replacing ‘abortion’

Republicans aren’t just redefining abortion, they’re replacing it with the made-up medical term ‘maternal fetal separation.’ [...]

Claiming abortion is never medically necessary

The effort to redefine and replace “abortion” in legislation has always been about laying the groundwork for one central—and false—argument: that abortion is never medically necessary. After all, if abortion is just the intentional ending of a pregnancy, and if women with life-threatening pregnancies can just be treated with ‘maternal fetal separations,’ then all abortions can be labeled elective. That’s the goal.

Sometimes, they say this outright. This summer, for example, I reported on a paper published by anti-abortion activists Ingrid Skop and James Studnicki. They argued that “there is no disease, illness or condition for which an induced abortion has been determined to be a standard of care” and claimed there is “no justification” for health- or life-saving abortions. Instead, they suggested women can simply be given ‘separation’ procedures—in other words, c-sections. Just a few weeks ago, well-known anti-abortion activist Dr. John Bruchalski echoed that sentiment, calling life-saving abortions ‘elective.’ He said, “There are no advantages for a mother to end her pregnancy by an elective abortion, even in the most life-threatening circumstances.’” Again, the idea is that a standard abortion procedure isn’t necessary because women can be induced or forced into surgery.

This isn’t a fringe belief of random activists. Some of the country’s most prominent anti-abortion groups are on board. When the first post-Dobbs deaths were reported, for example, I noticed that major anti-abortion leaders responded by saying abortion bans allowed for life-saving care—but wouldn’t say the law allowed for life-saving abortions. Instead, they said bans allow doctors to “treat” patients or “intervene” to save lives, carefully sidestepping the word ‘abortion.’

That’s deliberate—and not just because they don’t believe abortion is medically necessary. The nation’s leading anti-abortion organizations will never say doctors can legally provide life-saving abortions because their ultimate goal is to eliminate that exception entirely. If you’re skeptical, consider this: It wasn’t so long ago that Susan B. Anthony Pro-Life America (SBA-PLA) lobbied against an exception for women’s lives in Tennessee. When the state first passed its trigger ban, there was no exception for life-threatening pregnancies—just an affirmative defense mandate. That meant doctors had to break the law to provide a life-saving abortion and then defend it after the fact.

[...]

How they’ll do it

You won’t see states passing laws explicitly banning life-saving abortions anytime soon. Republicans are too strategic for that. Instead, they’ll use the same incremental approach they’ve employed elsewhere—chipping away bit by bit. Most egregiously, I feel certain they’ll exploit women’s suffering and deaths to do it. In fact, that tactic has already started: You might remember how anti-abortion legislators first started codifying their false definition of abortion after stories emerged of women being denied care. They claimed they were simply “clarifying” bans to address any confusion and ensure doctors knew they could treat women with ectopic pregnancies, miscarriages, or life-threatening conditions. Republicans framed these legislative tweaks as protections for women.

But let’s be clear: these people have no interest in protecting women. Their “clarifications” are a cover for the real end goal. In the coming months, I expect we’ll see even more language about ‘maternal-fetal separation’ and legislative changes framed as efforts to ‘clarify’ abortion bans—especially as more stories of women dying come to light. I suspect they might even use a specific woman’s death as justification for tweaking a state ban. At the same time, anti-abortion organizations will continue to normalize treating life-threatening pregnancies with c-sections and vaginal labor rather than traditional abortion procedures. Groups like the Charlotte Lozier Institute already explicitly recommend that emergency abortions “be done by labor induction or c-section,” falsely calling it “medically standard.” (It most certainly is not.)1

Meanwhile, Republican leaders in anti-abortion states will offer “guidance” to doctors about how to legally treat women with life-threatening pregnancies, stressing ‘separation’ procedures. All of these same groups and legislators will also spread propaganda claiming that abortion procedures like D&Cs or abortion medications are far more dangerous than c-sections or vaginal labor. Eventually, we’ll see a test case: a state where legislators pass a total abortion ban without exceptions. Because, they’ll say, abortion isn’t medically necessary anyway. As I noted earlier, when that case reaches the courts, conservative legal groups will point to years of legislation from multiple states as evidence that it’s “widely accepted” that abortion is simply an intention. And while it’s true that this strategy is a slow and quiet one, it’s important to know that it’s already unfolding. Reports show that doctors are increasingly performing c-sections on women—even when it’s too early for a fetus to survive—out of fear of breaking the law.

The conservative anti-abortion movement’s end goal is to eventually end abortion ban exceptions and deceitfully redefine the meaning of abortions.

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The Mythology of Rape Exceptions

An excerpt from Kylie’s forthcoming book, Coercion

Kylie Cheung at Abortion, Every Day:

Throughout my years writing about reproductive justice, survivor justice, and the inextricability of these movements and experiences, I’ve encountered a similar pattern: Just as we’re told, implicitly and explicitly, there are “good” victims and “bad” victims, we’re similarly told there are “good” abortions and “bad” abortions. Despite these innately sexist, surface-level distinctions, under patriarchy, rape culture, and abortion bans, all survivors and all abortion seekers are dehumanized and denied agency—by abusive men, and certainly, by the state governments that are imposing forced pregnancy. In some narrow cases, their laws claim to offer exceptions to rape victims, deeming these abortions “good.”

In my new book Coercion: Surviving and Resisting Bans, which releases with Pluto Press on July 20, one section addresses the mythology of rape exceptions, the anti-abortion movement’s attempts to distinguish “good” abortions from “bad,” and why these exceptions don’t work. I argue that anti-abortion leaders know these exceptions don’t work—they simply want the good PR of pretending to care about victims, while, in reality, ensuring that no one can actually get care, because doctors are too afraid of prison time to provide it. There are so many incredible books about abortion out there—including Jessica’s, which came out last year! For the last decade, I’ve written and reported extensively on the intersections between gender-based violence and reproductive justice, and how gender-based violence comprises not just interpersonal acts of abuse, but also state violence and policies. With Coercion, I wanted to dedicate a book specifically to unpacking, at the most granular level, how abortion bans and the so-called “abortion debate” are not just abstract policy positions that we can comfortably agree to disagree on with anti-abortion leaders; rather, all of this amounts to political violence. Abortion and abortion legislation are a matter of life—agency over one’s life, the ability to live a dignified life—and death, with material consequences for pregnant people, for victims of domestic violence, for those most marginalized under white supremacy and capitalism.

The endless, supposedly “unintentional” consequences of abortion bans—rising maternal mortality, child victims forced to travel out of state, increasing risk of pregnancy criminalization, pregnant victims coerced by their abusers—really reflect the intended purposes of abortion bans: to police and control pregnant people and their reproduction, to feed cycles of interpersonal gender-based violence as a tool in the toolbox of abusers, to inflict economic subjugation and racial violence, and to actively kill pregnant people—by denying or delaying their access to life-saving abortion care, or by entrapping them with their abusers in a country where homicide is a leading cause of death for pregnant people. In one chapter of the book, partially excerpted below, I write about how rape exceptions attached to abortion bans are meant to sanitize the cruelty and violence of these laws, and debunk this framing. Since I started working at Abortion, Every Day in June, I’ve been inspired by the passion and dedication of this community, and your eagerness to engage difficult conversations, to relentlessly champion women and pregnant people’s rights. I hope my book can play even a small part in guiding those conversations, and am excited to share this small portion of it with you.

The Mythology of Rape Exceptions

Shortly after Election Day in 2024, Donald Trump unsuccessfully attempted to appoint former Congressman Matt Gaetz to run the Justice Department—an agency that could potentially establish a federal abortion ban by wielding the Comstock Act of 1873, a law that could prohibit the mailing of abortion pills or abortion-related medical supplies as “obscene materials.” But Gaetz’s nomination was thrown into chaos by allegations that he’d sex trafficked a minor. Elon Musk, Trump’s billionaire adviser who has sexual misconduct allegations himself, said the allegations against Gaetz were “worth less than nothing . . . a man is considered innocent until proven guilty.” Ironically, Musk made this argument despite continuing to support Trump, who a jury found civilly liable for sexual abuse in 2023. As always, “innocent until proven guilty” is just a slogan to men like Musk because there’s no proof of guilt they’ll really accept. Time and again, when victims come forward, whether they have only their testimony or an arsenal of evidence, they’re discredited, turned away, even punished—because gender-based violence is normative in our society, because beneath surface-level condemnation, our society does not regard gender-based violence as morally wrong.

[...] Rape exceptions largely hinge on respectability politics. They separate “good” abortions from “bad,” frivolous abortions, and exist to give abortion laws a veneer of compassion while purposefully failing to help victims in practice. Many state abortion bans are criticized for lacking rape exceptions. But laws that include such exceptions carry all the same implicit violence. As the available data in Mississippi suggests, few rape victims seeking abortion care successfully access or even know how to seek out the exception. Many abortion restrictions, even from before Dobbs, have required victims to report their rape to the police or receive medical clearance for the exception, all within health and legal systems that have proven hostile to them. In 2023, one Tennessee bill nearly added a rape exception to the state’s total abortion ban that would threaten those who “lied” about being raped to access care with three years in prison. This addendum was ultimately struck, not because it was both absurd and violent, but because Tennessee lawmakers killed the bill to prevent the addition of a rape exception altogether. The following year, Missouri Republicans blocked a bill to add a rape exception to their own abortion ban. One explained his vote by arguing that being forced to carry their rapist’s baby could be “healing” for victims; another inexplicably argued that under the exception, “a one-year-old could get an abortion.” In May 2024, Louisiana Republicans blocked a rape exception, too. One argued teenagers would simply lie about being raped—all while an OB-GYN testified before the legislature that she and her colleagues have had to deliver babies to teens as young as 13. And in January 2025, an Indiana lawmaker introduced a bill that, in addition to criminalizing possession of abortion pills, required rape victims to submit legal affidavits to access abortion, threatening them with perjury for supposed false reports.3 At the same time as the Indiana bill, a New Hampshire Republican introduced a 15-week abortion ban and said the bill would require that rape be reported within a short period to access an exception, so the exception couldn’t be used as a “convenient excuse.”

In effect, rape exceptions are “entirely disingenuous,” Destini Spaeth, an organizer at the North Dakota-based Prairie Abortion Fund (formerly the Women In Need abortion fund), told me in 2023, referencing the Tennessee bill. They’re merely “PR for anti-abortion politicians” while serving as a “deterrent” to survivors. Spaeth’s group is dedicated to serving survivors’ reproductive care needs. “[Rape exceptions are] just another round of violation of their autonomy within the health care system, within a police and judicial system that routinely hurts survivors.” Tennessee’s bill was built on existing, systemic barriers: Sexual assault survivors are often threatened with criminalization, sometimes upon reporting their assailant, and face jarringly high rates of incarceration. And criminal charges for pregnancy outcomes—including abortion—often implicate victims of violence: As previously mentioned in 2019, Alabama resident Marshae Jones was jailed for fetal homicide when she miscarried after she was shot. Exceptions, survivor and reproductive justice activist Alison Turkos told me in 2022, have allowed “survivors’ trauma to be reduced to currency, and measured with a yardstick to see if you can get an abortion.”

Kylie Cheung wrote in Abortion, Every Day about how much of a farce “exceptions” to abortion bans are.

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URGENT: The Texas 'Exceptions' Bill is a Trojan Horse

SB31 & HB44 a would allow the state to prosecute abortion funds, helpers—even patients

Jessica Valenti at Abortion, Every Day:

Texas Republicans are poised to pull a fast one: They’ve convinced Democrats and doctors to support a bill they claim will protect life-saving abortion care and ‘clarify’ the state’s ban. But the rapidly advancing “Life of the Mother” legislation is a Trojan Horse—there’s a 100-year-old ban hiding inside, ready to be revived and used to prosecute abortion funds, helpers, and possibly even patients. Legal experts I spoke to in Texas called it “the most dangerous” anti-abortion bill currently before the legislature. So how has this flown under the radar? Blame a mix of GOP sleight-of-hand and pro-choice politicians so eager for a win—and so desperate to ease the suffering of Texas women—that they’ve missed the fine print. To be fair, it’s not an easy catch: What’s happening is buried in a maze of dense language and historical statutes. I’m going to do my best to lay it out for you, so please stick with me—this one really matters. Chances are, you’ve heard about Senate Bill 311: It’s been framed as Republicans’ oh-so-generous move to ensure doctors can provide life-saving abortions without fear of civil or criminal charges. Texas newspapers and national headlines describe it as a bill that will “expand protections” and “clear confusion” around the state’s ban, while lawmakers on both sides of the aisle claim it will save women’s lives. The Texas Medical Association has endorsed the bill, as have anti-abortion groups.

In short, SB 31 is being sold as a rare moment of bipartisan agreement—a good-faith effort to help doctors and patients. The truth, however, is that Republicans are exploiting Texans’ desperation to stop women from suffering and dying—using that urgency to pass a law that will ultimately broaden their power to punish. At the heart of this deception is a 1925 abortion ban. This Texas law made performing an abortion a felony unless it was done to save the patient’s life. But unlike the state’s modern bans, the century-old law also made it a felony to help someone “procure” an abortion—and it didn’t explicitly protect patients from prosecution. (Remember this for later.) Obviously, this 1925 ban was unenforceable for decades under Roe v. Wade—but after Dobbs, Texas Republicans argued it could go back into effect. Attorney General Ken Paxton, in particular, was eager to use the law: the same day Roe was overturned, he issued an advisory declaring the 1925 ban enforceable—and repeated the claim in an updated advisory three days later. Why was he so eager to dust off a 100-year-old law? In part, because it would let the state start prosecuting people immediately. (Texas’ trigger ban couldn’t be enforced until the Supreme Court issued its formal judgment in Dobbs, which could take months.) But more importantly, Paxton knew that reviving the century-old ban would dramatically supercharge his ability to prosecute. Remember, the 1925 law would explicitly allow Paxton to prosecute abortion funds that help patients ‘procure’ care, and open the door to targeting patients. What Republican legislators did next made it even clearer that the punishment was always the point: the ultra-conservative Texas Freedom Caucus started sending threatening letters to companies that promised to reimburse employees for out-of-state abortion travel—citing the 1925 ban. They also targeted abortion funds, warning that donors, employees, and volunteers could be prosecuted under the 100-year-old law.

Thankfully, Texas funds sued to stop that from happening. Paxton lost the legal battle in 2023, when a federal court ruled that the zombie ban had been “repealed by implication.” (Translation: you can’t enforce a nearly century-old ban when newer laws have already replaced it.) And while Paxton and Texas Republicans continued to claim the old ban was still on the books, that federal ruling blocked them from enforcing it.

[...] In other words, anti-abortion politicians get the best of both worlds if this bill passes: they get to look like they give a shit about women’s health and lives, while expanding the state’s power to punish. And let’s be clear about how serious that punishment would be. One Texas abortion rights lawyer told me this would open the door to prosecuting abortion funds, pregnant people, and the families or friends who help them access out-of-state care. And that’s regardless of circumstance—rape, incest, and fatal fetal anomalies are not exceptions under Texas’ new or old bans.

The so-called “exceptions” bill in Texas is just a trojan horse for anti-abortion reactionaries.

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They're Killing Us

12.10.24

Jessica Valenti at Abortion, Every Day:

I was all set to publish a normal daily report today when I came across two bits of news: Idaho Republicans are back in federal court fighting for the right to deny women life-saving abortions, and South Carolina lawmakers have reintroduced legislation to make abortion punishable by the death penalty. Considering this comes at the same time that politicians are disbanding or tampering with maternal mortality committees in order to cover up the fact that their bans kill women, it seemed like the right moment to take a step back and acknowledge how absolutely fucking crazy this is.

They’re killing us, and we’re meant to behave as if it’s business as usual.

Anti-abortion politicians and activists have demonstrated again and again that they believe women’s lives are expendable—worthless, really, if not for our reproductive ability. Yet we’re expected to sit here and react to that violence as if it’s simply politics. As if it’s perfectly fine that our suffering and deaths are being debated in statehouses and courtrooms as if we’re not human beings, but thought exercises and legal arguments. That’s the hardest thing about doing this work. As difficult as it is to comb through the onslaught of awful abortion rights news every day, the real horror is the normalization. Because truly, how is it possible that there isn’t one single headline or news article about the South Carolina bill that could punish abortion patients with the death penalty? Is that how little our lives rate? It’s not as if reporters didn’t know the legislation was coming; Republicans have introduced this bill before. In fact, last year two dozen lawmakers co-sponsored the ‘Equal Protection Act’—a bill that doesn’t only classify abortion as a homicide, but defines personhood as beginning at fertilization.

That means conservatives who believe emergency contraception and IUDs stop the implantation of a fertilized egg could argue that these common forms of birth control are actually abortions. In other words, birth control could be punishable by the death penalty. Still, not a peep from mainstream media outlets. As if such legislation should just be expected. Similarly, the legal fight over emergency abortions only warranted three headlines today, from CNN, the Associated Press and Newsweek. We’re talking about a case that could determine whether states can legally deny women life-saving abortions in hospital emergency rooms. That’s a front-page story—an issue that deserves coverage in every publication across the country. Instead, we got a few obligatory paragraphs in a handful of outlets.

For those who need a reminder, this case revolves around the Emergency Medical Treatment and Labor Act (EMTALA)—a federal law that requires hospitals to provide life-saving emergency care, including abortions. In 2022, the Biden administration sued Idaho, arguing that the state’s abortion ban prevents doctors from following EMTALA. By the time the suit reached the Supreme Court, we heard about doctors having to airlift women out of Idaho for emergency care, and a medical system so broken that OBGYNs were advising pregnant patients to get extra life insurance. Still, Idaho Republicans defended the law and pooh-poohed concerns about patients’ lives. At one point American women were put in the surreal position of watching the nation’s highest court debate just how many organs are acceptable for them to lose before the state should be required to provide an abortion. In the end, the Supreme Court didn’t issue a ruling on the merits but kicked the case back to a lower court. That’s where it is now, with the Ninth Circuit—where we’ll have to listen to lawyers debate our lives like bullet points all over again.

[...] We need to say it constantly and consistently, online and off: This is as bad as it seems. They are as unhinged and cruel as they seem. And no amount of calling themselves ‘pro-life’—or trying to normalize this horror—will ever hide the truth. They’re killing us, and we won’t let America forget it.

Jessica Valenti wrote this solid piece in her Abortion, Every Day blog about how abortion bans kill women and how unhinged the anti-abortion movement is.

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Trump Will Decide ‘Pretty Soon’ On Proposing A National Abortion Ban

Fox News pressed the presumptive GOP nominee about a recent report that he was considering a 16-week national abortion ban.

Alanna Vagianos at HuffPost:

Donald Trump, the presumptive Republican presidential nominee, confirmed to Fox News that he is considering backing a national abortion ban. In an interview with Trump that aired Sunday night, “MediaBuzz” host Howard Kurtz brought up a recent New York Times report that claimed Trump was considering a 16-week national abortion ban. The former president reportedly said in a private conversation shared with the Times that he likes the idea of a 16-week federal ban because it’s an “even” four months. When Kurtz asked Trump if he thought a 16-week national ban would be politically acceptable, Trump said, “We’re going to find out, and pretty soon I’m going to be making a decision.” “I would like to see if we could make both sides happy. Look, a lot of things were done with Roe by killing it — number one, we brought it back to our states,” Trump continued, adding that the Supreme Court justices “did something that from a lot of stand points is extremely good” when they repealed federal abortion protections in the summer of 2022.

The former president didn’t give a clear answer on whether he supports a 16-week abortion ban, but it was clear that he supports the three exceptions often included in abortion bans: rape, incest and to save the life of the pregnant person. “You have to have the three exceptions,” Trump said. “I tell people, number one, you have to go with your heart. You have to go with your heart. But beyond that, you also have to get elected. If you don’t have the three exceptions, I think it’s very, very hard to get elected.”

Appearing on Fox "News" Channel's MediaBuzz Sunday, Donald Trump hinted that he would support a nationwide abortion ban with limited exceptions for rape, incest, and the life of the pregnant person.

From the 03.17.2024 edition of FNC's MediaBuzz:

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One Texas case shows why women can’t rely on legal exceptions to abortion bans

Kate Cox’s case speaks to the "hellish" legal limbo these bans put patients, and providers, in.

Li Zhou at Vox:

The Texas Supreme Court has ruled against Kate Cox, a 31-year-old woman who sought an abortion in the state. Previously, Cox argued that the lethal condition impacting her fetus and health risks she’d face during the pregnancy meant she qualified for the exemptions outlined in Texas’s abortion ban. The court decision, which comes after Cox left Texas to obtain an abortion, sets a disturbing new precedent in a state that already has one of the most restrictive abortion bans in the country.

It’s a notable ruling because it further narrows what Texas law considers medical exceptions to its abortion ban, and could have implications for other states with similar policies. Currently, abortion is broadly banned in the state, and there are limited exceptions for conditions that endanger the life of the mother or that cause “substantial impairment” of bodily functions. Given how opaque the law is, it was not clear exactly what those exceptions entailed, and though the court didn’t explicitly clarify that ambiguity in its ruling, its decision suggests that health challenges like those Cox faced — including risks to future pregnancies — don’t qualify for the exemption. “Some difficulties in pregnancy … even serious ones, do not pose the heightened risks to the mother the exception encompasses,” the court concluded, noting that Cox’s doctor hadn’t effectively affirmed that the complications she could face — including threats to future fertility — reached the threshold for an exception to the ban.

The justices also maintained existing uncertainty when it came to providers’ prerogative to conduct abortions in the state. Some providers have refrained from giving abortion care due to fear of legal consequences: Medical professionals found in violation of Texas’s abortion law can face up to 99 years in prison as well as large fines, while those who are found to have aided in providing abortion access can face civil suits. The court ruled that the decision about whether a condition constituted a medical emergency, and thus qualified for an exemption, should be left up to physicians and not the courts. “Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function,” the decision reads. The court didn’t resolve the legal tension inherent in the fact that Cox’s doctor felt an abortion was warranted in her case while the court said it was not. [...]

The legal battle, briefly explained

Earlier this month, Cox, a mother of two, requested an emergency abortion because her fetus had been diagnosed with a lethal genetic condition called Trisomy 18. The condition frequently means that fetuses don’t survive to full term or that pregnancies result in stillbirths. Cox has spoken about being devastated by this news and how she feared that carrying the pregnancy to term would endanger her future fertility.

“An abortion was not something I ever imagined I would want or need,” Cox — who was 20 weeks pregnant — wrote in an op-ed in the Dallas Morning News published last week. “I need to end my pregnancy now so that I have the best chance for my health, for parenting my children, and for a future pregnancy.” During a Thursday court hearing, Molly Duane, one of Cox’s attorneys, emphasized that Cox is at “high risk for multiple pregnancy complications, including hypertension, gestational diabetes, and infection.” Because both of Cox’s prior pregnancies resulted in cesarean sections, she’d likely need a third surgery if she carried this fetus to term, increasing her risk of complications. After hearing these arguments, district court Judge Maya Guerra Gamble approved a temporary restraining order allowing an exception to the state’s ban, which would have enabled Cox to receive an abortion and protect the physician performing it. Texas Attorney General Ken Paxton, however, filed a petition to stay the district judge’s order. In it, he argued that Cox hadn’t demonstrated that she was navigating a “life-threatening” medical condition, or that the complications she would endure put her at risk of major bodily harm.

The case of Kate Cox at the Texas Supreme Court and their heinous ruling reveals one thing to be true: that even exceptions to abortion bans aren't failsafe.

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Some Republicans Were Willing to Compromise on Abortion Ban Exceptions. Activists Made Sure They Didn’t.

ProPublica reviewed 12 of the nation’s strictest abortion bans. Few changed in 2023, as state lawmakers caved to pressure from anti-abortion

Kavitha Surana at ProPublica:

State Rep. Taylor Rehfeldt was speaking on the floor of the South Dakota Capitol, four months pregnant with her third child, begging her Republican colleagues to care about her life. “With the current law in place, I will tell you, I wake up fearful of my pregnancy and what it would mean for my children, my husband and my parents if something happened to me and the doctor cannot perform lifesaving measures,” she told her fellow lawmakers last February, her voice faltering as tears threatened.

Rehfeldt was a stroke survivor and her pregnancy put her at high risk for blood clots and heart issues that could kill her. The state’s ban made abortion a felony unless it was “necessary to preserve the life of the pregnant female.” If Rehfeldt developed complications, doctors told her, the law didn’t make clear how close to death she needed to be before they could act. “When can a doctor intervene? Do I need to have my brain so oxygen-deprived to the point that I am nonfunctional?” she asked the room. Rehfeldt is an ambitious rising Republican: She has a strong anti-abortion voting record and is serving as the House assistant majority leader. She also was a nurse. But her background and credentials failed to rally her colleagues to support a narrow clarification to the ban that would allow a doctor to end a pregnancy if “the female is at serious risk of death or of a substantial and irreversible physical impairment of one or more major bodily functions.” “I would never have possibly imagined that a bill protecting a woman’s life could be so contentious,” Rehfeldt said on the floor of the House, announcing she was withdrawing her bill before even bringing it to a vote.

The language she and two other Republicans had landed on was still so slim, most national medical organizations and abortion-access advocates wouldn’t support it. But even that had no chance. South Dakota Right to Life — a local affiliate of the major anti-abortion organization National Right to Life, which can rally voters to sway Republican primary elections — had told her it opposed any changes. (South Dakota Right to Life declined to comment.) When the Supreme Court struck down the constitutional right to abortion last year, strict abortion bans in more than a dozen states snapped into effect. Known as “trigger laws,” many of the bans were passed years earlier, with little public scrutiny of the potential consequences, because few expected Roe v. Wade to be overturned.

Most of the trigger laws included language allowing abortion when “necessary” to prevent a pregnant person’s death or “substantial and irreversible” impairment to a major bodily function. Three allowed it for fatal fetal anomalies and two permitted it for rape victims who filed a police report. But those exceptions have been nearly inaccessible in all but the most extreme cases. Many of the laws specify that mental health reasons can’t qualify as a medical emergency, even if a doctor diagnoses that a patient might harm herself or die if she continues a pregnancy. The laws also carry steep felony penalties — in Texas, a doctor could face life in prison for performing an abortion. The overturn of Roe has intensified the struggle between those who don’t want strict abortion bans to trump the life and health of the pregnant person and absolutists who see preservation of a fetus as the singular goal, even over the objections of the majority of voters. In the states where near-total abortion bans went into effect after Roe’s protections evaporated, the absolutists have largely been winning.

[...] Early signs indicated Republicans might compromise, as voters in red states showed strong popular support for protecting abortion access and polls revealed the majority of American voters do not support total abortion bans. That opposition has only hardened since then, as reproductive rights drove a wave of Democratic electoral victories in Kentucky, Virginia and Pennsylvania in November. In Ohio, voters approved an amendment to the state’s constitution guaranteeing the right to an abortion. But in the most conservative states, Republicans ultimately fell in line with highly organized Christian groups. Those activists fought to keep the most restrictive abortion bans in place by threatening to pull funding and support primary challenges to lawmakers that didn’t stand strong. Their fervor to protect the laws reflects a bedrock philosophy within the American anti-abortion movement: that all abortion exceptions — even those that protect the pregnant person’s life or health — should be considered the same as sanctioning murder.

[...] Polls show that the majority of Americans reject laws that don’t allow patients to make health care decisions about their own bodies. When voters have been asked directly, as they were in ballot measures in Kansas, Kentucky, Montana and Ohio, they have chosen to protect abortion access. And in the 2022 midterms, congressional Republican candidates in some swing districts lost over their abortion stances. Sensing backlash, some Republicans signaled a willingness to revisit their states’ abortion bans. “I think there’s enough support for a compromised solution that matches up with most voters,” Republican Kentucky state Sen. Whitney Westerfield told Louisville Public Media in November 2022. “We need to make clear what the trigger law meant,” Tennessee state Sen. Becky Duncan Massey said to WBIR Channel 10 in August 2022. “Doctors should be concerned about saving the life of a mom.” In 10 of the 12 states with laws that ProPublica reviewed, lawmakers made efforts to add new exceptions or clarify language in 2023. In eight of them, Republicans were part of the effort.

But over time, calls from some Republicans for compromise were overwhelmed by strong opposition from anti-abortion lobbyists. In Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, Tennessee and Texas, Republican lawmakers voted down or killed exceptions that would give doctors broader discretion to address health risks. In Arkansas, Idaho, Kentucky, North Dakota, Tennessee and Texas, they quashed bills that would let doctors offer abortion when it was clear the fetus would never survive. Bills proposing rape and incest exceptions failed in eight of the states. In Arkansas, lawmakers voted against rape and incest exceptions that were narrowed to apply only to children. Four states made minor changes to their total abortion bans, in close alignment with anti-abortion organizations. In Idaho and Tennessee, doctors who first pushed for changes were cut out of the process after local anti-abortion organizations pressured lawmakers. In North Dakota, the state repealed its abortion ban because of constitutional challenges. Then the representatives of local Catholic dioceses worked with the hospital association to pass a new bill that was nearly as strict as the original. In Texas, a narrow bill quietly passed. It was put forward by Democrats, then changed by Republicans and specifically addresses court challenges. In the four states, the new laws created exceptions for immediately life-threatening situations, such as ectopic pregnancies, where the fetus implants outside the uterine cavity, and molar pregnancies, where no embryo forms. The Texas law still allows doctors to be charged for providing abortion care for an ectopic pregnancy or if a patient’s water breaks before viability, but it codifies those conditions as a legitimate defense in court. The North Dakota law made some small concessions: A “serious health risk” is now defined as one that poses only “substantial physical impairment to a major bodily function,” not substantial and irreversible, for example. [...]

A Core Philosophy

For the anti-abortion movement, the goal has always been total abortion bans with no exceptions and constitutional recognition that a fetus has the same rights as a person, said Mary Ziegler, a leading historian of the U.S. abortion debate. This unyielding position was influenced by thinkers like Charles E. Rice, a law professor at the University of Notre Dame whose 1990 book “No Exception: A Pro-Life Imperative,” argues that the anti-abortion movement should not support any exceptions — even for the life of the pregnant person. “If two people are on a one-man raft in the middle of the ocean, the law does not permit one to throw the other overboard even to save his own life,” he wrote. The Catholic Church and the anti-abortion movement also have a history of celebrating the stories of women who were willing to sacrifice their lives to continue their pregnancies. One of the most well-known stories is about Chiara Corbella Petrillo, a young Italian woman who refused chemotherapy in 2011 for cancer on her tongue because she was pregnant. As the cancer progressed, it became difficult for her to speak and see. A year after giving birth to a healthy baby boy, she died. Live Action, a major anti-abortion advocacy group, included Petrillo on a list of “7 Brave Mothers Who Risked Their Lives to Save Their Preborn Babies.” “In a culture where women are bombarded with the message that convenience and worldly achievement are tantamount — even overriding their children’s right to life — it is refreshing to see women who have defied the norm,” an editor for the organization wrote. In anti-abortion circles, Petrillo has been described as a “heroine for the 21st century” and a “modern day saint.” Her story was turned into a book, which appeared on a 2016 Mother’s Day gift list in the magazine Catholic Digest. The Catholic Church has opened an inquiry to consider whether Petrillo should be elevated to sainthood.

For decades, major anti-abortion groups did not see a no-exceptions approach as politically possible. Groups including National Right to Life and Susan B. Anthony Pro-Life America instead made gains by pressuring lawmakers to chip away at abortion protections via targeted restrictions that strangled access but wouldn’t curtail the basic right enshrined in Roe v. Wade. Between 2011 and 2017, 50 abortion clinics in the South closed due to the new laws.

But after Donald Trump was elected and began filling the Supreme Court with judges handpicked by the Federalist Society, a network of conservative and libertarian lawyers, some influential anti-abortion activists saw an opening for more radical action. Paul Benjamin Linton was one of them. A longtime Catholic legal activist, he had argued against Rice’s commitment to a no-exceptions position that had no chance in the Supreme Court — not because he disagreed with it morally, but because he believed an incremental strategy would result in more babies being born. (Linton did not respond to emails and voicemails.)

Even when certain Republicans were willing to compromise on abortion bans to permit exceptions such as for the following: rape, incest, and imminent health risk to the pregnant person, the anti-abortion activists wanted no compromise on any abortion bans whatsoever.

See Also:

TPM, via ProPublica: Some Republicans Were Willing To Compromise On Abortion Ban Exceptions. Activists Made Sure They Didn’t.

[justinspoliticalcorner]

Abortion Bans Mean Women Die

Exceptions to save the "life of the mother" are largely meaningless.

Jill Filipovic at Substack:

Another woman is dead in Poland thanks to the country’s “pro-life” abortion ban. Dorota Lalik was five months pregnant when her water broke. She went to John Paul II hospital, a Catholic institution (in case you couldn’t tell by the name), where instead of giving her appropriate medical care, doctors simply told her to lie down with her legs elevated, so she could retain medical fluids. Because surely this is how it works: If a pregnant woman lies down and lifts her legs up, the baby won’t come out. Good on this Catholic institution, I suppose, for embracing the theory of gravity. John Paul II hospital does not perform abortions; they abide, it seems, by the broadly-debunked but nevertheless now-ubiquitous anti-abortion theory that abortions are never necessary to save a woman’s life. Someone should tell Dorota Lalik that: She developed sepsis, and within three days, she was dead. She is one of several Polish women who have died because something went wrong with their pregnancies, and they were not offered (or not permitted to have) abortions. This is the reality of abortion bans, even when they technically have exceptions for the pregnant woman’s life: Criminalizing abortion means that doctors are often too scared to recommend abortion, even where necessary; it means doctors who have far less training on how to even provide abortion care; it means health workers who are paranoid about going to jail and patients who get substandard care. Some pay for it with their lives. Poland’s strict anti-abortion law is actually more liberal than the laws of many conservative US states. Poland has long outlawed abortion, and tightened the law in 2021 to ban abortions even in cases of severe fetal anomaly, but the procedure is still technically allowed to save a woman’s life or health (health exceptions, in conservative US states, are virtually nonexistent — abortion opponents 100% expect pregnant women to compromise their health, even severely, even permanently). Still, the reality in Poland, a heavily Catholic country with a growing authoritarian bent, is that there are many barriers to break through before a woman with a life-threatening emergency can get a legal abortion in a hospital. Two physicians have to certify that the abortion is life-saving, which obviously takes time and which many won’t do; a chaplain may get to weigh in, or there may simply be a hard-and-fast “no abortions” rule; I imagine there are layers of lawyers and administrators involved; and finally, you need doctors, nurses, and support staff who are willing to carry out a deeply stigmatized procedure that the country’s political and religious leaders have deemed a crime, a profoundly shameful act, and a sin akin to murder — and that those health workers may not have been extensively trained on, because of the Polish abortion ban. This is not a situation in which you want to be a pregnant woman who has a dying fetus inside of her and is quickly succumbing to a deadly infection. [...] Abortion opponents worldwide now routinely claim that abortion is never necessary to save a pregnant woman’s life; then they say, ok, we’re going to make abortion a crime, but to appease the public we’ll allow it to save a woman’s life — which again, is never actually necessary. And in the US, the “life” exception isn’t actually an exception — it’s an affirmative defense, which means it’s something a health worker can claim after that health worker is already criminally charged for performing an abortion, and facing years in jail, the loss of their license, and possibly total bankruptcy.

So that’s the strategy here in the US: Abortion is a crime with serious penalties, and the people making and enforcing the law say it is never necessary to save a woman’s life, but they’ll let you argue that an abortion was necessary to save a woman’s life in court, once you’re on trial, in a case where right-wing prosecutors will pull out all the stops to convince a red state jury that you, now an “abortionist,” had plenty of other options. This is not an “exception.” It is a threat. The Polish abortion ban is extreme, but marginally less so than abortion bans in several conservative American states. And the Polish ban, in a country with a much smaller population than that of the US, has already claimed several women’s lives. [...] These bans don’t save women’s lives. They end them.

Jill Filipovic said it best on abortion bans in places like Poland and several American states in her latest Substack post: "These bans don’t save women’s lives. They end them."