内容摘要：Five Texas women filed a lawsuit last week arguing that the medical emergency exceptions written int

Five Texas women filed a lawsuit last week arguing that the medical emergency exceptions written into the state’s criminal abortion laws were endangering the lives of those they were supposed to protect. The suit turns on the vagueness of the state’s medical emergency exception. Starting in 2011, Texas redefined a “medical emergency” to include a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Subsequently, a version of this definition found its way into S.B. 8, the six-week ban allowing virtually anyone to sue those who performed or assisted in an abortion. Yet another iteration appeared in the state’s trigger ban, which outlaws all abortions from the moment of fertilization that do not qualify under the medical emergency exception.

The plaintiffs in the suit, who are represented by the Center for Reproductive Rights, argue that the Texas laws are riddled with inconsistencies and ambiguities. They stress that Texas has sent contradictory messages about which emergent conditions are serious enough to qualify under the law. And they emphasize that the law sends mixed signals about how much deference physicians will receive when acting in good faith. Physicians who do not know what they can do have responded by doing nothing and leaving patients without access to emergency care. The result of the state’s vague laws, the plaintiffs suggest, has been tragedy: patients denied care altogether or “being forced to wait until they are clearly hemorrhaging or showing active signs of infection before they will be offered abortions.”

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Make no mistake about it: Texas’ law has unique problems. The state’s conservative lawmakers kept the pre-Roe criminal ban passed in 1925; to circumvent Roe v. Wade, they passed S.B. 8. In 2021, after Donald Trump reshaped the Supreme Court, they passed a trigger law. Inconsistencies crept in, and the result is a mess that frightens doctors away from addressing real emergencies.

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But the problems with Texas’ exceptions are broader, and they tell a story about why abortion exceptions as a general matter fail to protect patients. From the time of previous eras’ abortion bans, exceptions were tailored more to prevent free access to the procedure than to address real problems in pregnancy, and state abortion laws today are no exception.

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When abortion reform efforts got underway in the 1960s, the American Law Institute proposed what amounted to a menu of exceptions to criminal abortion bans for patients seen to be innocent enough to deserve abortion (the ALI included exceptions for rape and incest, fetal abnormality, and certain health threats). Pushback from anti-abortion lawyers was immediate. They argued not just that abortion was immoral and unconstitutional, but also that the exceptions were an open invitation for fraud. Decades before Todd Akin’s comments about “legitimate rape,” they argued that pregnancy after sexual assault was all but impossible—and that rape exceptions were an excuse for promiscuous women. They framed health exceptions as universally unnecessary, arguing that virtually no pregnancies were life-threatening.

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After Roe, anti-abortion suspicion of patients invoking exceptions only deepened. They pointed to Roe’s companion case, Doe v. Bolton, that defined health to include physical and mental well-being. For abortion opponents, that looked like an exception that could swallow the rule: wouldn’t anyone forced to remain pregnant suffer mental distress?

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So after Congress passed the Hyde Amendment, a ban on Medicaid reimbursement for abortion in 1976, anti-abortion legislators worked to make it harder for patients to invoke exceptions or to eliminate them altogether. Sexual assault victims, for example, had to report to law enforcement within a certain time frame, and some Hyde proponents voted to eliminate all rape and incest exceptions.

Anti-abortion activists began using a similar strategy in model laws designed to chip away at Roe. For example, in the Pennsylvania law considered by the Supreme Court in Planned Parenthood of Pennsylvania v. Casey, anti-abortion groups proposed a medical emergency exception only to save a patient’s life or “create serious risk of substantial and irreversible impairment of major bodily function.”

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The similarity to Texas’ law is no accident. For the anti-abortion movement, the narrow and ambiguous language adopted by Pennsylvania in the 1980s, and by Texas more recently, reflects the same beliefs: The most important issue is preventing abortion, and exceptions serve primarily to discourage what Republicans see as unjustified procedures. But the justifications of many plaintiffs are all too obvious. One patient diagnosed with “preterm prelabor rupture of membranes” was denied care, developed sepsis, nearly died, and suffered lasting impacts to her future fertility; another, pregnant with twins, was forced to travel out of state to maximize the chances of survival for herself and one of the twins when the second received a devastating diagnosis. These stories will almost certainly continue in Texas and states like it.

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If anything, the evolution of the anti-abortion movement and the GOP in the decades before Dobbsonly made the problem worse. Over the course of the 1980s, the anti-abortion movement stressed the importance of criminal penalties: in the context of fetal homicide, prosecution of pregnant drug users, or doctors who violated abortion laws. They also began endorsing much harsher penalties. Compared to 19^th century criminal laws, recent abortion bans dramatically ratcheted up penalties for doctors and others who help people seeking abortion. Abortion opponents in some states, who identify as abolitionists, argue that women and other pregnant people should be punished too. Now that Roehas been overturned, those harshest possible penalties are now enforceable. Given the consequences of violating the law, most rational doctors will at least consider withholding care when there is any ambiguity in the law, no matter how slight. This is what’s happening not just in Texas, but also all over the country, and as long as the bans themselves exist, there’s little reason to believe it will change.

The suit by the five Texas plaintiffs certainly has merit. It shines a light on the hodgepodge of criminal laws that physicians in Texas must work through when patients come to them with emergencies, and it lifts up the heartbreaking stories of those harmed by the legal chaos. But even if the plaintiffs win, whatever exception replaces this one is unlikely to make it easy for anyone to access abortion, even if their health or life is at risk. Abortion exceptions rarely work for patients, and that, for many Republicans, has always been the point.

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• Abortion
• Republicans
• Supreme Court
• Texas
• Judiciary