by Sophie Trist
Editor’s note: Colloquially, when most people refer to "abortion," they are discussing the medical procedure that intentionally causes the death of a human being in utero. Because of this, the phrase “medically necessary abortion” may sound confusing. However, it is important to note that in a medical context, "abortion" can refer to pregnancy loss that is both intentional and not intentional (typically known as miscarriage). Texas law distinguishes between these two scenarios, however, some advocates believe that the law needs to be clarified further to protect women experiencing pregnancy loss.
Texas’s heartbeat law bans abortion after a fetal heartbeat can be detected unless the pregnant person’s life is in immediate danger. Until last summer, such laws were largely an exercise in philosophy, but with the long-overdue overturning of Roe v. Wade, this law and others like it now have tangible effects on people’s lives. Five women who were denied medical care during pregnancy complications for fear of running afoul of the law are suing Texas, along with two OB/GYNs who say that the law creates a culture of fear and confusion around pregnancy care. The plaintiffs are not seeking to overturn the law, but to clarify when a medically-necessary abortion may be performed. They want a reading of the law which gives physicians more discretion in determining what counts as unacceptable risk to the pregnant person’s health. A similar debate is playing out in Tennessee, where the legislature is considering two proposals which would narrowly expand medical exceptions to the state’s abortion ban by clarifying that doctors may remove a fetus in the case of a miscarriage, medically futile pregnancy, ectopic pregnancy, or if the child is nonviable.
The Texas lawsuit is spearheaded by the Center for Reproductive Rights, a pro-abortion group which would love nothing more than to see free abortions on demand and without apology nationwide. No doubt they imagine this lawsuit as the first step to dismantling Texas’s heartbeat law and all other protections for preborn children. However, that doesn’t mean the case has absolutely no merit.
Given that abortion is the violent death of a human being, the phrase “medically necessary abortion” may sound oxymoronic, even ghoulish. But we cannot discount the physical and emotional trauma the women named in this suit suffered. Amanda Zurawski began losing her unborn child at eighteen weeks, but her life was not in danger and doctors could still detect the baby’s heartbeat. Ms. Zurawski was sent home and later became septic, a life-threatening condition. She lost her baby and, because of delayed care, one of her fallopian tubes is now permanently closed. Another plaintiff, Anna Zargarian, was denied care after her water broke at just nineteen weeks, before her child was viable. “I’ve never felt my life matters less than it did during this situation,” Ms. Zargarian said later.
Marlena Stell, another Texas woman not named in the lawsuit, was traumatized after being forced to carry a dead baby for two weeks, a grave health risk. Ms. Stell says that after an ultrasound confirmed her child’s death, she asked her doctor to perform a D&C procedure, the same surgery used to kill preborn children. Because of the new law, Ms. Stell had to undergo a second ultrasound to confirm her miscarriage, which she described as being very emotionally traumatic.
Ms. Zargarian, Ms. Zurawski, and Ms. Stell did not seek elective abortions. They suffered medical complications which led to the tragic loss of their unborn children. These babies almost certainly could not have been saved. And while none of these women were in lethal danger in the strictest sense of the word, they suffered lasting physical and mental harm for no sound reason. Doctors’ fear of violating a state law that is vague and unclear led them to delay or deny care. As people deeply invested in saving the lives of both preborn children and their mothers, we cannot shy away from these uncomfortable stories and the questions they raise.
The human body is extremely complicated, even more so when that body is supporting another unique human life. The legislators drafting pro-life laws are not always aware of the myriad medical complications that can arise during pregnancy. This ignorance was on full display when Ohio lawmakers passed a law in 2019 requiring doctors to reimplant ectopic pregnancies, which is not medically possible. Neither is it true that a fetus implanting in the fallopian tube is the only truly life-threatening condition that can arise during pregnancy. Pro-life laws must be extremely medically explicit so that physicians can provide the best care for both of their patients: the pregnant person and the unborn child. If the baby has already passed away or absolutely cannot be saved, doctors should be able to perform all medical procedures necessary to save the pregnant person’s life without fearing legal reprisal.
To be clear, I am not advocating for a return to the overly broad definition of health spelled out in Doe v. Bolton, in which a woman could receive a post-viability abortion for basically any physical, psychological, emotional, economic, or familial reason. But our laws should be flexible enough that women who are losing their babies, or who have a substantial risk of dying from pregnancy complications, can get the care they need without undue trauma or delay. The first precept of pro-life laws should be to do no harm. As pro-life/whole-life advocates, we must be just as passionate in valuing and defending pregnant people’s lives as those of unborn children. We cannot fall into the trap of treating the pregnant person as disposable to save the unborn child or vice versa. While pro-life laws are important, surveillance and punishment are not the solutions to abortion violence. Our laws must be compassionate and medically sound enough to create a life-affirming landscape of care for pregnant people and their children.