The Dobbs Decision Has Unleashed Legal Chaos for Doctors and Patients
Activists in Nashville protest after the overturning of Roe v. Wade. The abortion ban now in effect in Tennessee criminalizes most abortions from the first trimester onward.Photograph by Seth Herald / AFP / Getty
Overturning Roe v. Wade put old laws—including one from the nineteenth century—back on the books, and opened the door for new ones with ambiguous language and glaring omissions.
As of last week, reproductive health care in the state of Wisconsin is guided by legislation that predates the Civil War. On June 24th, the U.S. Supreme Court, ruling on Dobbs v. Jackson Women’s Health Organization, repealed the constitutional right to abortion granted in Roe v. Wade, returning the question to the states. At that moment, Wisconsin reverted to a law that was passed in 1849, and revised in 1858, which outlaws all abortions except for those necessary “to save the life of the mother.” On Tuesday, Wisconsin’s attorney general, Josh Kaul, filed a challenge to the law, arguing that it conflicts with more recent statutes that regulate abortion care. (Wisconsin’s governor, Tony Evers, had called a special legislative session to repeal the nineteenth-century law ahead of the Dobbs decision, but the gerrymandered, Republican-controlled state legislature responded by simply gavelling in and gavelling out.) District attorneys in Milwaukee and Madison have promised to not enforce a criminal ban on abortion, and Governor Evers has offered clemency to any physician who is charged under the law, which was written when chloroform and ether were just coming into vogue as forms of pain management in childbirth.
Jennifer Jury McIntosh is a maternal-fetal-medicine specialist in Milwaukee. In the days immediately following the Dobbs decision, she told me, “Some of my colleagues were saying, ‘Wait, they won’t prosecute, they’ll pardon—what should we do?’ But we have to follow the law. There is a statute of limitations. If whoever replaces Evers or Kaul is not of the same mind-set, they could prosecute with the law in place.” McIntosh said that while she appreciated the show of support from state and local officials, “it did cause a lot of confusion.”
The uncertainty and crossed signals that have prevailed in Wisconsin are typical of a chaotic post-Dobbs landscape in many states across the country. Physicians may not know what is legal, or for how long. New anti-abortion laws often have hazy language or glaring omissions. (To take an obvious example, some states do not explicitly permit abortion in cases of ectopic pregnancies, which are life-threatening to the pregnant person and never result in a live birth.) Other bans have been stayed by court challenges, but only after clinics had already ceased operations. Louisiana had no fewer than three trigger bans on the books, all of which were temporarily blocked by a judge after the Center for Reproductive Rights filed a petition calling them “unconstitutionally vague.” In Utah, a judge issued a fourteen-day restraining order against the state’s trigger law, which forbids most abortions after implantation; the following day, a different Utah law, from 2019, came into effect, prohibiting abortions after eighteen weeks.
Cara Heuser, a maternal-fetal-medicine physician in Salt Lake City, was consulting with a patient in her second trimester whose fetus had a catastrophic anomaly when the medical office where she works received word that Utah’s trigger ban had been blocked. The pregnant woman, with some of her reproductive rights unexpectedly restored, decided to take a night to consider her decision. The next day, she asked for an abortion; but, with the eighteen-week ban abruptly in force, she had missed her window to procure one in Utah. “We’ll help her, of course, with a referral to another state,” Heuser said.
But, depending on the circumstance, even some out-of-state referrals may be legally precarious. On Thursday, Martha Fuller, the president and C.E.O. of Planned Parenthood of Montana, announced that the clinic would no longer provide medication abortions to residents of neighboring South Dakota, where a near-total trigger ban is in effect, owing to concerns that a South Dakotan who completes a medication-abortion regimen back home may leave a physician or pharmacist in Montana vulnerable to prosecution. “The risks around cross-state provision of services are currently less than clear,” Fuller wrote in an e-mail to her staff, “with the potential for both civil and criminal action for providing abortions in states with bans.” (Planned Parenthood of Montana will continue to provide surgical abortions for South Dakotans.)
Because there is so much state-to-state variation in the newly valid abortion bans, and because the legal ground kept shifting in the hours and days following the Dobbs ruling, “there wasn’t a lot of guidance from any of the medical organizations that we look up to,” Erika Boothman, an ob-gyn who works in private practice in Columbus, Ohio, said. The American College of Obstetricians and Gynecologists “was unable to say for each state, ‘Here is how you practice medicine if, for example, your patient is bleeding to death but the fetus still has a heartbeat,’ ” Boothman said. (Jen Villavicencio, an ob-gyn who works for acog, noted that “unscientific, nonmedical laws” have made already complicated situations “very difficult.”)
Ohio’s so-called heartbeat bill is close to a total ban on abortion—it outlaws the procedure if electrical activity can be detected where the embryo’s heart would eventually form, which is possible as early as three weeks after conception. (It allows exceptions in case of “medical emergency or medical necessity.”) Columbus’s city attorney, Zach Klein, recently announced that his office will not pursue criminal charges against anyone suspected of violating this law. But, Boothman told me, “No one here is comfortable saying, ‘We can open our doors again and provide abortions.’ ” (On Friday, the Indianapolis Star reported that, shortly after Dobbs was handed down, a ten-year-old Ohio girl was referred to a doctor in Indianapolis for an abortion.)
Patients at the practice where Boothman works have asked whether birth-control pills or IUDs are still lawful after the Dobbs ruling, or whether they will become illegal soon. One patient was worried about treating her miscarriage. “I offered her pills to help her body complete the miscarriage, and she was concerned because she wasn’t sure it was legal,” Boothman told me. “I explained to her that it was something I could legally offer because the fetus didn’t have a heartbeat.” (Misoprostol, which is administered to aid in incomplete miscarriages, is also one of the two prescriptions in a medication abortion.)
Over the past few months, Boothman said, patients who were aware of the likely outcome in Dobbs have taken preëmptive action. “We’ve had record numbers of people asking for their tubes to be tied—people with multiple kids and people with no kids. Some are saying, ‘My husband has a vasectomy, but I still need to make sure I’m protected.’ We are going to be doing a lot more surgeries to sterilize women.” This trend highlights a sometimes overlooked consequence of abrogating the right to abortion—the ways that it can foreclose a person’s freedom of choice to have children in the future.
In some states, the confusion felt by providers and patients is compounded by ambiguous, irresolute language in the new and forthcoming laws themselves. Ten states allow abortions in cases of rape or incest, and some require the pregnant person or physician to report the assault to law enforcement. It is not necessarily clear whether, or to what extent, the victim must then coöperate in a potential prosecution—or what, if any, obligations an abortion provider has to the police or prosecutors in this situation. In South Carolina, for example, a provider must disclose the assault to their local sheriff’s department and include the victim’s contact information, although the law does not obligate law enforcement to follow up on the report. (At least two sheriff’s departments in the state have announced that they will not do so unless the patient requests it.) A physician in Utah who performs an abortion on a rape survivor will be required to verify that the assault has been reported, but Heuser told me that “everyone is at a loss” as to what that means. “Do we need to see a police report?” she asked. “Just ask the patient?”
Other exceptions written into abortion bans—most of them for terminations that save the patient from death or serious injury—are similarly muddled. The ban now in effect in Tennessee criminalizes most abortions from the first trimester onward; the Tennessee Human Life Protection Act, a near-total abortion ban that is slated to replace the current law later this summer, likewise criminalizes abortion unless a licensed physician determines that it is “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.” But, according to the text of both of these measures, a life-threatening scenario is not an exception per se but, rather, an “affirmative defense.” This distinction is alarming to Chloe Akers, a criminal-defense attorney in Knoxville. Akers pointed out that a physician who performed an emergency abortion, and was taken to court, would need to prove its necessity “by a preponderance of the evidence.” By contrast, if a person in Tennessee is accused of homicide, and successfully raises a claim of self-defense, the burden of proof is on the state to disprove the claim.
Providers can spin out any number of plausible scenarios that could lead to their prosecution and, possibly, to the loss of their licenses and livelihoods. An abusive husband discovers that his wife has obtained a lawful early abortion without telling him; enraged, he reports the clinic to the police. Doctors terminate the pregnancy of a woman in her second trimester whose water has broken, putting her at risk of infection; an anti-abortion hospital employee, suspecting that the fetus still had a heartbeat, calls the authorities. And so on. The Human Life Protection Act contains a clause requiring that, in a life-threatening scenario, the physician should attempt to end the pregnancy in such a way that “provides the best opportunity for the unborn child to survive.” This provision may incentivize a provider to wait as long as possible before inducing labor—a delay that can result in hemorrhage, sepsis, and even death—rather than perform a surgical abortion.
Akers pointed out that future probes of alleged abortions need not rely solely on tipsters. “With other crimes, there are investigating bodies tasked with affirmatively investigating potential criminal behavior—law-enforcement officers are not simply sitting around waiting to get a report of a crime,” she said. Abortion is now a class-C felony in Tennessee, the same category of offense as aggravated assault, and punishable by up to fifteen years in prison. Agencies authorized to investigate such crimes “have tools at their disposal, including applications for wiretaps, search warrants for personal electronic devices, and access to very sensitive data,” Akers said. “That leads to a serious concern about privacy at ob-gyn offices and for other health-care providers.” (The district attorney’s office in Knoxville did not respond to a request for comment.)
The nineteenth-century abortion law that is currently in effect in Wisconsin was altered in 1858 to ban most abortions, but, when it was first put on the books, in 1849, it banned only those involving a “quick child”—a fetus whose movements can be detected by the mother. Wisconsin was not an outlier. An 1812 case in Massachusetts, Commonwealth v. Bangs, affirmed that legal prohibitions on abortion could only apply after the “quickening.” The Catholic Church permitted pre-quickening abortions until 1869. One of the Founding Fathers, Ben Franklin, even included an at-home abortion recipe in a math textbook he published. (And yet Justice Samuel Alito, in his majority opinion in Dobbs, claimed that abortion is not “deeply rooted in this Nation’s history and tradition.”) There is no hard science to quickening: an expectant mother might feel, say, some vertiginous flutters around week eighteen and an unmistakable kick at week twenty-four. But, regardless of where a woman in Wisconsin lands on this continuum, she would have had a greater legal right to an abortion in 1849 than she does in 2022.
Akers, in Tennessee, takes a backward-looking view of the future—one that seems, in the long term, exceedingly optimistic, and, in the short term, unbearably dark. She predicts that the repercussions of Dobbs will be so severe that even conservative states will return to the framework established by Roe v. Wade, in which first-trimester abortions were free of government intervention and abortion was not heavily restricted or banned outright until the point of viability, toward the end of the second trimester. “There’s going to be a circling back to what the Justices understood fifty years ago—that this area should be off-limits to legislation, that it is too complex and the rights that are implicated are too significant,” she said.
McIntosh, the provider in Wisconsin, basically agreed. She was frank about how bleak the near future looks. “I think it’s going to take lots of women dying before we get back to a reasonable place,” she said. ♦