Legality and Chilling Effect of Abortion Care in Dobbs Era
January 1, 2023 7 minutes read
In this Q&A about how state abortion bans are affecting women with both planned and unplanned pregnancies, Contraceptive Technology Update addresses some of the legal issues raised by state laws and bans. Martha F. Davis, JD, university distinguished professor of law, co-director of the Program on Human Rights and the Global Economy, and faculty director at NuLawLab, of Northeastern University in Boston, discusses the issues raised in her recent paper on this topic. Davis also was a co-author of a brief presented to the U.S. Supreme Court in the Dobbs v. Jackson Women’s Health Organization case. The brief was referenced by dissenting justices.1,2
CTU: What are some of the consequences of the Dobbs decision that go beyond the banning of legal elective abortions in some states?
Davis: There are two consequences. Some states have gone so far as to ban all sorts of procedures, even those necessary to save the life — or at least some politicians have articulated an interest in doing that. Another, which is much more pervasive, is the chilling effect. Some doctors and medical professionals are willing to risk their licenses because of their commitment to providing care, but it’s not everyone. In some places, where policies are very polarized and anti-choice folks have dominated the legislatures, there is a risk to providing care, so people are chilled from doing that.
CTU: Please explain more about how the chilling effect has affected women’s health in abortion-ban states. For instance, there are media stories of women not receiving potentially life-saving care for miscarriages or ecoptic pregnancies at hospitals in some states.
Davis: For one thing, the chilling effect is the goal of anti-choice folks. There’s not any concern among them about the anti-abortion chilling effect that’s in place.
One of the difficulties is the chilling effects become greater because of rapid changes in the law. For example, in mid-November, Georgia’s anti-choice law was struck down. Abortion is currently available up to 20 weeks there. But a day earlier, abortion was allowed only up to six weeks.3
Hospitals have lawyers, but individual doctors are not getting legal advice for every individual coming into their office. They’re left to make judgments about how much risk they might be taking in doing a particular procedure. There’s a lack of clarity and inconsistency from state to state.
Also, they may have someone coming across state lines and seeking an abortion procedure in a state that they can’t get where they live. What kind of liability might you have for [performing] the procedure that may be illegal in the patient’s state? It’s not clear what that risk would be.
As a lawyer myself, I know lawyers are trained to be risk averse. That’s part of our job — to advise people about the level of risk and to be cautious about doing that. In some cases, it is good. But in this instance, it contributes to the chilling effect of women not getting the care they need to save their lives.
CTU: How do you handle legal quandaries, such as federal rules requiring emergency rooms to provide life-saving care — including abortion — to women with excessive bleeding from a miscarriage and the abortion-ban states’ criminalizing of abortion unless it is to save the woman’s life?
Davis: The emergency room care and federal funds associated with that should be the bottom line. A hospital risks losing federal funding if it doesn’t provide emergency care. But we see state legislators and state politicians who are willing to risk federal actions because of strong feelings about abortion.
There are a lot of lawyers involved in the reproductive rights movement who are trying to clarify what the law is. This kind of challenge is unique in the sense that up until now, there was a federal baseline that governs this issue. Hospitals deal with ethical dilemmas and ethical advisory boards and potential tort liability — that’s not new. But the rapidity of change here and the divergence of baseline laws from state to state is new.
CTU: What kind of guidance should lawyers provide hospitals when they create emergency abortion care policies for pregnant patients who are having a miscarriage or life-threatening medical issue? For example, there was the case of a Tennessee woman whose blood pressure was dangerously high and who was sent out of state to receive a life-saving abortion.4
Davis: This is not something lawyers can do on their own. They need to do it with hospitals and doctors. The standard should reflect medical needs. Standards would definitely help. They would protect the doctor and provide clarity for patients.
But that won’t address the chilling effect. Whatever standards are created, they will reflect concerns about risk, and the guidelines drawn up will be very, very conservative. They will not want to do anything that might expose the hospital to liability, and the biggest concern is prosecution by the state attorney general vs. a tort suit by an individual. Also, the rapidity of change means that whatever guidelines you develop may need to be revisited in a few weeks.
CTU: For reproductive health providers, is the best they can hope for a change in their state’s constitution to allow for abortion care? This is what we saw in the 2022 midterm elections when voters in the states of Michigan, California, and Vermont approved constitutional amendments to protect reproductive and abortion rights.5
Davis: We do see this happening. There will be the agenda, and there are existing state constitutions that have provisions that could apply to abortion, and those will be litigated. One possibility is a state’s equal rights amendment, which could be construed to protect women’s health rights. There is a ton of litigation to clarify provisions when it’s not clear.
I’m sure pro-choice advocates will move something like this ahead in their states. We never know how it will turn out, but I think we’ve seen in elections that occurred since Dobbs that it’s quite motivating for voters to come out and defend their human and individual rights.
We’ve already seen the reaction by people in the states where there’s been a dramatic effort to cut back access to abortion and where there has been such a negative reaction. Women and their partners want full access to health rights.
CTU: Would you please explain more about your paper on the Dobbs decision and its effect?
Davis: This paper was directed toward an international audience. I participated in an amicus brief in the Dobbs case, cited by the dissent, noting that in so many other countries, there is stability about access to abortion that is a core principle of healthcare, and it’s not controversial at all. There is abortion access for the person’s life and health, and also for elective abortions, up to a pretty generous point.
I think it’s useful to look at what’s happening in the United States in this international context because there’s nothing inherent about abortion that means there has to be this kind of instability and controversy. It’s possible to have a coherent system that recognizes women’s rights and operates without constant litigation and lack of clarity, and that’s the dream. We can see that in other countries, and we should have that, too.
The overall international trend has been toward liberalization. One possible concern is that the United States, after Dobbs, would exercise a negative pull. But I think in the U.S., we tend to think of ourselves as being much more influential than we actually are.
CTU: Would you please provide some information about what you wrote in the amicus brief?
Davis: One thing I did for the Dobbs brief is pull together scholars internationally on reproductive rights. They understood what is going on in the United States is aberrational, and it isn’t what their own nations understand. They see abortion as a healthcare issue that shouldn’t be politicized. What Dobbs does is further isolate the U.S. in its ability to argue on the international stage that women have equal rights. It’s not pulling down other nations.
Here are excerpts from the brief:
“A comparison of U.S. abortion laws with those of common-law, liberal democracies demonstrates that the U.S. viability standard (approximately 23-24 weeks of pregnancy) established in Roe and Casey is consistent with comparable jurisdictions’ abortion laws, which provide for abortion access up to or around viability.”
“… since this court reaffirmed the constitutional right to abortion in Casey, the global trend toward liberalization has gained momentum, and an increasing number of countries have expanded access to abortion through the laws, jurisprudence, and policies. Over 50 countries have liberalized their abortion laws in the past 25 years, and a number of countries have explicitly done so in recognition that reproductive rights are protected under international human rights law.”
“Finally, if the United States were to regressively overturn Roe and Casey, it would find itself in the company of countries whose political systems are moving away from the values espoused by the United States — those like Poland, whose ‘quality of democratic governance … continue[s] to deteriorate,’ due to extremist and illiberal discourse, and Nicaragua, whose authoritarian political system is characterized by ‘significant human rights issues,’ including restrictions on freedoms of expression, association, and assembly.”2
REFERENCES
- Davis MF. The state of abortion rights in the US. Int J Gynaecol Obstet 2022;159:324-329.
- Center for Reproductive Rights. International and comparative legal scholars amicus brief in Dobbs v. Jackson Women’s Health. Sept. 21, 2021.
- Thanawala S. Georgia abortion providers wary after court strikes down ban. AP News. Nov. 17, 2022.
- Rinkunas S. A Tennessee woman had to take a 6-hour ambulance ride to get an abortion. Jezebel. Oct. 17, 2022.
- Smith M, Sasani A. Michigan, California and Vermont affirm abortion rights in ballot proposals. The New York Times. Nov. 9, 2022.
In this Q&A about how state abortion bans are affecting women with both planned and unplanned pregnancies, Contraceptive Technology Update addresses some of the legal issues raised by state laws and bans.
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