Complexity of life, health exemptions from abortion bans
The life and health exemptions to abortion bans are complex. With the legality of abortion effectively on the August 2 ballot, Kansans should understand how impending government regulations could affect women’s health.
If the abortion amendment passes, the Kansas legislature will likely soon ban all or most abortions. Conservatives have generally avoided talking about banning abortion during this campaign, opting instead for emotional arguments that often mislead voters about threats to current abortion regulations and types of abortions that actually happen here.
But recently, conservatives have started to get out of the script. More specifically, the Kansas Reflector reported on comments from conservative lawmakers and an activist group staffer about House Bill (HB) 2746.
HB 2746 was introduced in the Kansas legislature this year. It banned abortion except in limited circumstances, with no exceptions for rape, incest, or numerous threats to a woman’s life or health.
Let’s focus on life and health. If something like HB 2746 were to pass, states that recently banned abortion give Kansas some clues about its future.
Most state abortion bans provide a vague exception for a woman’s life, but sometimes not her health in non-fatal situations. Doctors and hospitals in many states are expressing concerns in the media that they don’t know how to navigate the intentionally vague language of these exceptions.
Specifically, doctors often don’t know if they can legally perform emergency abortions in many cases, even when they believe women have clear health needs. Violating these new abortion bans carries penalties of up to life in prison in some states, so it’s understandable that doctors fearing prosecution will deny or delay medical care for women.
Let’s identify a few scenarios where it is often uncertain whether abortion is permitted under vague life or health exceptions:
If a woman develops a serious illness where her chance of dying is less than 50% or unquantifiable, is this “life threatening”?
If a woman finds cancer but it doesn’t kill her immediately, should the government force her to delay chemotherapy?
Since many states explicitly require health threats to be physical, what about women who experience severe mental health crises?
If a pregnancy is likely to result in stillbirth or rapid fetal death, should the government require women to suffer the mental and physical effects of continuing that pregnancy?
What about the high risk of heart failure but whose symptoms have not yet appeared? Pre-eclampsia? Placenta accreta?
Responding to confusion among physicians, President Biden recently issued Executive Order 14076. It reminds healthcare providers of their obligation to provide emergency care, including emergency abortions, under the 1986 Health Care Act. emergency medical treatment and active labor. Texas has filed a lawsuit challenging this emergency. duty of care, and the federal courts have yet to rule.
Kansas already prohibits abortion after 22 weeks. If the Conservatives ban abortion before that point and allow health or life exemptions, then like any new government regulation, it takes time and ultimately testing the law to find out how the government implements it.
Under a ban, if Kansas doctors perform emergency abortions under a life or health exemption and the government does not prosecute them or their patients, then doctors may feel comfortable performing emergency abortions that they believe are warranted. But as this process evolves, women can expect delayed or denied care — and likely riskier pregnancies — as doctors navigate new regulations.
Patrick R. Miller is an associate professor of political science at the University of Kansas.