In my opinion there is no compromise that will be fair to a woman under these new anti-abortion laws.
Meanwhile,
many pro-life Catholic thinkers have insisted that none of these laws endanger women in any way: They argue that these laws can be written in ways that will restrict abortion while allowing exceptions to handle miscarriages, ectopic pregnancies and dangers to women’s lives in reasonable, commonsense ways.
But it is not at all obvious that this is true. Nor is it at all obvious that there is consensus about how to handle these situations in reasonable, commonsense ways, even within the church.
Take S.B. 8, the Texas law, which creates an exemption from liability for abortions “
necessary due to a medical emergency.” What does that “necessary” mean? The law does not say. Is an abortion that would avert a 5 percent chance of death “necessary,” or must a doctor wait until the risk increases to a 25 percent chance? Is it enough to know that a mother will have a high chance of death tomorrow if the pregnancy continues?
Under both the Texas and Oklahoma laws, medical professionals who are fully confident in their diagnosis of a medical emergency and whose decisions would stand up to anyone’s moral scrutiny can still face legal liability. Because these laws allow plaintiffs, but not defendants, to recover legal costs, doctors and hospitals may be exposed to exorbitant costs defending their medical judgment against bad-faith lawsuits. It may even risk their freedom and livelihoods. Come September, if all goes according to
the state’s plan, doctors in Oklahoma who are accused of performing an abortion that wasn’t sufficiently medically warranted might not just face a lawsuit but also a homicide charge.
How long after abortion is criminalized in Oklahoma will it take before a situation arises in which not a single doctor is available to perform a necessary, life-saving abortion for a woman who is too sick, or too poor, to travel elsewhere for it?
We cannot write laws that incentivize doctors to err on the side of allowing the woman to die and ignore the outcome that will result. If there are steep penalties for performing abortions that are later determined to have been unnecessary without strong mandates for doctors and hospitals to perform necessary abortions—which the church
surely wants to avoid for religious liberty reasons—women will die. Not because of a renewed culture of life, but because of capitalism. We will have simply made it more costly to kill the child than to kill the mother.
The church’s moral teaching is that abortion should only be performed when the doctrine of double effect applies—when there is some morally neutral medical intervention that can save the mother while, unfortunately and unintentionally, resulting in the death of her child. It sounds simple in theory, much the same way that “necessary” seems like a sufficient legal descriptor in theory. But in practice, Catholic bioethicists are split on how and when to preserve the lives of mothers when their pregnancies become life-endangering.
Notably, under Texas’ law,
at least one patient was told to wait until her ectopic pregnancy ruptured her fallopian tube—which would have put her at immediate risk of death from hemorrhage—because her doctor worried an abortion wouldn’t be sufficiently “necessary” under the law until that point.
It is time to create the space for an actual conversation. How we adjudicate these laws affects more than the unborn. Women’s lives are on the line.
We need to talk about ‘life of the mother’ exceptions in abortion law. | America Magazine