Do abortion bans inevitably kill women?

Mad Libs: Sargeant vs. Demsas

Welcome to Mad Libs. This is an irregular debate column where our columnists, contributors, staff writers, (or even you, dear reader) can duke it out over the big ideas we’re discussing in the metaphorical pages of this magazine.

This Mad Libs was inspired by an anonymous column published in The Argument where a Georgia mother revealed she left the state to receive an abortion. She explained that while the risks of a complication were low, she was not willing to bear them in a state where abortion care is strictly controlled.

Leah Libresco Sargeant is a senior policy analyst at the Niskanen Center. She is pro-life and objected strongly to our anonymous author’s claims that Georgia’s legislation puts pregnant women at risk.

In place of our anonymous author, I asked Sargeant to debate me on the question of whether women in states like Georgia reasonably feel risk carrying pregnancies to term.

Our full exchange is below.

- Jerusalem, Editor-in-Chief of The Argument

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Leah Libresco Sargeant:

A couple of months ago, The Argument published an anonymous essay from a woman who left Georgia to get an abortion. In it, she claimed that Georgia doctors would not be free to care for her if she developed “infection, sepsis, late-term miscarriage, placental abruption, [or] preterm delivery.”

I strongly disagree. Georgia law specifically exempts miscarriage (as do all state bans). It allows a doctor to intervene when “a medical emergency exists.” And Georgia doctors plainly do treat all of the conditions named, or else there would be many women in crisis.

The maternal deaths surfaced by ProPublica are what have created the widespread perception that pregnancy is no longer safe in Georgia. However, closely reading the cases led me to conclude this looks more like bad doctors hiding behind abortion bans than the state limiting care.

Texas’ abortion ban didn’t prevent doctors from delivering Nevaeh Crain’s baby when she was six months along and developed sepsis. No ban requires a mom to be discharged and abandoned. Crain saw a doctor who was providing subpar care before he could appeal to bans as an excuse.

We know, sadly, that low-income, underinsured moms are at risk of being turned away in red and blue states, and I’d like to see more investigations and prosecutions for Emergency Medical Treatment and Labor Act (EMTALA)-dumping, in which hospitals fail in their legal duty to provide stabilizing care to any pregnant patient, regardless of her ability to pay.

The failure to clarify the law isn’t happening at the statehouse level but at the last mile of law — the hospitals. Doctors have spoken out about their hospitals refusing to provide them with written guidance or dodging their requests for meetings.

Pro-choice maternal-fetal medicine specialist Sarah Osmundson, who supports abortion rights, was stonewalled by her allies when she wanted to work with pro-lifers to improve Tennessee’s abortion ban. She opposes abortion bans, but if one was going to exist, she wanted to make sure its exemptions were clear. Abortion access advocates have taken a hardline stance of refusing to countenance any exemption law as acceptable.

As a pro-lifer, I want doctors to feel free to intervene in a crisis, and it’s clear that many doctors feel free to practice, even in ban states. I think most bans’ exemptions are already sufficiently clear, but I’d like to see more state laws explicitly include previable premature rupture of membranes (PPROM) in their exemptions list, because when a mother’s water breaks early, her condition can go from stable-for-now to crisis quickly.

I think current laws already allow doctors to exercise medical judgment here, but I’d be happy to make it unambiguous. In most other conditions, I think the current law works.

I’m curious whether Jerusalem thinks any state laws are workable, or if she thinks it’s impossible to handle life-and-health-of-the-mother exemptions without allowing abortion “on demand and without apology.” Immediately after Dobbs, I can see why doctors didn’t trust that laws would be interpreted fairly, but have we crossed a threshold where doctors can see the lack of prosecutions and trust the plain text of the law?

I’m also curious what Jerusalem and other skeptics of life-of-the-mother exceptions think about this video from South Dakota, which offers a long list of safe-harbored conditions (including PPROM) but also makes sure to note the list is not exhaustive.

This is the kind of effort I’d really like pro-choice feedback on. Is there an emergency condition Jerusalem or others think is left out of South Dakota’s list of examples? Is our disagreement about whether this video accurately reflects South Dakota law? Should this video give moms or doctors more peace about the ban?

Jerusalem Demsas:

Leah has essentially made my argument for me. Not only does she concede that the existing legal environment needs to be made “unambiguous” but she also concedes one of the pro-choice movement’s core arguments: That even if pro-life legislation were well-designed, the costs of compliance would be disproportionately borne by pregnant women.

In other contexts, conservatives have no trouble understanding the risk of overcompliance. In significantly less litigious and life-threatening environments, firms and individuals shy away from the boundaries of the law so as not to risk penalties.

Leah herself has said she agrees with this argument, she just thinks the hospitals are to blame, not the legislators.

For a patient making a binary decision (whether or not to remain pregnant), it’s not all that relevant which actor is deemed ultimately responsible for the heightened risk. The question is just: Is the heightened risk enough to make you want an abortion?

This fear isn’t irrational. ProPublica has published data analyses showing that following Texas’s abortion ban, sepsis rates have skyrocketed and miscarriages have become “far more dangerous.”

And our anonymous author is not alone in her fear; according to the best evidence, abortion volume has gone up since Dobbs.

But I also am not willing to concede that hospitals and doctors are being irrational in their slow compliance. Anti-abortion legislation has dropped them into a legal minefield. And it’s even less surprising that pregnant women, particularly those who are neither doctors nor lawyers, would feel ill-equipped to determine how safe it would be to carry a child to term.

Take pregnancy and abortion out of it for a moment: Imagine a law was passed that said doctors were only able to remove appendixes if the life of the patient were at risk. What do we think happens on the margins? Do we think patients in excruciating pain from an inflamed appendix wait longer or shorter hours? Do we think doctors refrain from performing certain appendectomies?

And, of course, doctors and hospitals do have reason to believe that they might be the subject of unfair litigation from pro-life factions. Not only are we living under an administration that has shown they have no problem with being smacked down in court repeatedly, but doctors in Georgia were constantly being sent the message to overcomply.

The sponsor of Georgia’s anti-abortion law has said it is his intent that doctors, nurses, and pharmacists could be prosecuted under the criminal statute. A Douglas County DA said publicly that “The only way to be 100% sure you’re not prosecuted … is not to have an abortion.” He was threatening mothers here, not doctors, but his warning reveals the kind of maximalist reading of the law that makes hospitals and clinicians assume the worst.

But finally, if your policy requires that every doctor be very good at their jobs, it’s not a very good policy. In one prominent case where a pregnant woman died waiting for an abortion, the 34-year-old patient with a pre-existing heart condition was denied treatment because it could hurt the baby. “More than a dozen experts who reviewed her case for ProPublica” said the procedure was actually safe during pregnancy.

No matter how much training you do, there’s not actually a way to make sure every doctor is competent, nor is there a clean standard for what it means for the life of the mother to be at risk. What’s the line? Lots of things put the life of the mother at risk. If you’re older than 40, if you have chronic kidney disease, if you have diabetes or lupus or HIV or a substance use disorder … all of these factors put you at risk of dying. What is the level of risk mothers should tolerate? Who should get to decide?

I think the person taking that risk should decide, while the anti-abortion crowd believes in the motherhood draft. That’s the whole debate.