Powerful Activists and Lawmakers Have Blocked Post-Roe Abortion … – ProPublica
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State Rep. Taylor Rehfeldt was speaking on the floor of the South Dakota Capitol, four months pregnant with her third child, begging her Republican colleagues to care about her life.
With the current law in place, I will tell you, I wake up fearful of my pregnancy and what it would mean for my children, my husband and my parents if something happened to me and the doctor cannot perform lifesaving measures, she told her fellow lawmakers last February, her voice faltering as tears threatened.
Rehfeldt was a stroke survivor and her pregnancy put her at high risk for blood clots and heart issues that could kill her. The states ban made abortion a felony unless it was necessary to preserve the life of the pregnant female. If Rehfeldt developed complications, doctors told her, the law didnt make clear how close to death she needed to be before they could act.
When can a doctor intervene? Do I need to have my brain so oxygen-deprived to the point that I am nonfunctional? she asked the room.
Listen: South Dakota Legislature
In February, Republican South Dakota state Rep. Taylor Rehfeldt, then four months pregnant, spoke on the floor of the state Legislature about how the states strict abortion ban put her health at risk.
Rehfeldt is an ambitious rising Republican: She has a strong anti-abortion voting record and is serving as the House assistant majority leader. She also was a nurse. But her background and credentials failed to rally her colleagues to support a narrow clarification to the ban that would allow a doctor to end a pregnancy if the female is at serious risk of death or of a substantial and irreversible physical impairment of one or more major bodily functions.
I would never have possibly imagined that a bill protecting a womans life could be so contentious, Rehfeldt said on the floor of the House, announcing she was withdrawing her bill before even bringing it to a vote.
The language she and two other Republicans had landed on was still so slim, most national medical organizations and abortion-access advocates wouldnt support it.
But even that had no chance. South Dakota Right to Life a local affiliate of the major anti-abortion organization National Right to Life, which can rally voters to sway Republican primary elections had told her it opposed any changes. (South Dakota Right to Life declined to comment.)
When the Supreme Court struck down the constitutional right to abortion last year, strict abortion bans in more than a dozen states snapped into effect. Known as trigger laws, many of the bans were passed years earlier, with little public scrutiny of the potential consequences, because few expected Roe v. Wade to be overturned.
Most of the trigger laws included language allowing abortion when necessary to prevent a pregnant persons death or substantial and irreversible impairment to a major bodily function. Three allowed it for fatal fetal anomalies and two permitted it for rape victims who filed a police report. But those exceptions have been nearly inaccessible in all but the most extreme cases.
Many of the laws specify that mental health reasons cant qualify as a medical emergency, even if a doctor diagnoses that a patient might harm herself or die if she continues a pregnancy. The laws also carry steep felony penalties in Texas, a doctor could face life in prison for performing an abortion.
The overturn of Roe has intensified the struggle between those who dont want strict abortion bans to trump the life and health of the pregnant person and absolutists who see preservation of a fetus as the singular goal, even over the objections of the majority of voters. In the states where near-total abortion bans went into effect after Roes protections evaporated, the absolutists have largely been winning.
And the human toll has become clear.
On the floors of state legislatures over the past year, doctors detailed the risks their pregnant patients have faced when forced to wait to terminate until their health deteriorated. Women shared their trauma. Some Republican lawmakers even promised to support clarifications.
But so far, few efforts to add exceptions to the laws have succeeded.
A review by ProPublica of 12 of the nations strictest abortion bans passed before Roe was overturned found that over the course of the 2023 legislative session, only four states made changes. Those changes were limited and steered by religious organizations. None allowed doctors to provide abortions to patients who want to terminate their pregnancies because of health risks.
ProPublica spoke with more than 30 doctors across the country about their experiences trying to provide care for patients in abortion-ban states and also reviewed news articles, medical journal studies and lawsuits. In at least 70 public cases across 12 states, women with pregnancy complications faced severe health risks and were denied abortion care or had treatment delayed due to abortion bans. Some nearly died or lost their fertility as a result. The doctors say the true number is much higher.
Early signs indicated Republicans might compromise, as voters in red states showed strong popular support for protecting abortion access and polls revealed the majority of American voters do not support total abortion bans. That opposition has only hardened since then, as reproductive rights drove a wave of Democratic electoral victories in Kentucky, Virginia and Pennsylvania in November. In Ohio, voters approved an amendment to the states constitution guaranteeing the right to an abortion.
But in the most conservative states, Republicans ultimately fell in line with highly organized Christian groups. Those activists fought to keep the most restrictive abortion bans in place by threatening to pull funding and support primary challenges to lawmakers that didnt stand strong.
Their fervor to protect the laws reflects a bedrock philosophy within the American anti-abortion movement: that all abortion exceptions even those that protect the pregnant persons life or health should be considered the same as sanctioning murder.
By the time the 2023 legislative sessions began, the consequences of total abortion bans written years earlier by legal strategists with no medical expertise had become clear.
Across the nation, women described the harm they experienced when care was delayed or denied for high-risk complications or fatal fetal anomalies.
Amanda Zurawksi, a Texas woman who almost died after she was made to wait for an abortion until she developed a serious infection, testified before the U.S. Senate Judiciary Committee: The preventable harm inflicted on me has already, medically, made it harder than it already was for me to get pregnant again.
Jaci Statton, an Oklahoma woman who had a dangerous pregnancy that is never viable and can become cancerous, sued after being told that doctors couldnt touch me until I was crashing and that we should wait in the parking lot until I was about to die, she told the Tulsa World.
Nancy Davis, a Louisiana woman who traveled out of state for an abortion after she learned her fetus was developing without a skull, said doctors told her, I had to carry my baby to bury my baby.
Mylissa Farmer, a Missouri woman who described being denied abortion care at three separate emergency room visits after her water broke before viability, sparked a federal investigation of the hospitals. The experience was dehumanizing, she told The Associated Press. It was horrible not to get the care to save your life.
Polls show that the majority of Americans reject laws that dont allow patients to make health care decisions about their own bodies. When voters have been asked directly, as they were in ballot measures in Kansas, Kentucky, Montana and Ohio, they have chosen to protect abortion access. And in the 2022 midterms, congressional Republican candidates in some swing districts lost over their abortion stances.
Sensing backlash, some Republicans signaled a willingness to revisit their states abortion bans.
I think theres enough support for a compromised solution that matches up with most voters, Republican Kentucky state Sen. Whitney Westerfield told Louisville Public Media in November 2022.
We need to make clear what the trigger law meant, Tennessee state Sen. Becky Duncan Massey said to WBIR Channel 10 in August 2022. Doctors should be concerned about saving the life of a mom.
In 10 of the 12 states with laws that ProPublica reviewed, lawmakers made efforts to add new exceptions or clarify language in 2023. In eight of them, Republicans were part of the effort.
But over time, calls from some Republicans for compromise were overwhelmed by strong opposition from anti-abortion lobbyists. In Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, Tennessee and Texas, Republican lawmakers voted down or killed exceptions that would give doctors broader discretion to address health risks.
In Arkansas, Idaho, Kentucky, North Dakota, Tennessee and Texas, they quashed bills that would let doctors offer abortion when it was clear the fetus would never survive. Bills proposing rape and incest exceptions failed in eight of the states. In Arkansas, lawmakers voted against rape and incest exceptions that were narrowed to apply only to children.
The rejections came after women and families came to statehouses to share their own heartbreaking experiences.
We found out that my baby had a giant hole in her chest and her intestines were strangling her heart, Chelsea Stovall said in testimony to the Arkansas State Legislature, crying as she shared her experience terminating a nonviable pregnancy earlier that year. I had to travel out of state to a doctor who didnt know me and didnt know potential complications.
Stovall told ProPublica she did have complications she bled for more than a month after the abortion and had to have a second procedure.
State Rep. Delisha Boyd, a Democrat who put forward a rape and incest exception bill in Louisiana, shared that she was conceived when her mother was raped at 15 by an older man.
I know that my mother never recovered from that and she was dead before she was 28 years old, Boyd said. If we are pro-life, we have to be concerned with more than just the baby in utero. No one looked out for my mother. No one looked out for me once I was born. Boyd said she noticed Republican lawmakers leaving the room as she and other women shared their personal stories.
In Arkansas, when state Rep. Ashley Hudson, a Democrat, proposed a rape and incest exception that was limited to children under 16 because we are talking about a situation where a 10-year-old child is being forced to carry a pregnancy that may kill her her Republican colleagues swiftly voted against it.
Republican Rep. Cindy Crawford countered with her experience operating a shelter for girls, where she said she had supported many 12-year-olds who gave birth.
Just because a young girl is pregnant and at 12 or whatever you think she should have an abortion, would you not agree that two wrongs dont make a right? That her mental health would be worse after she experienced an abortion? she asked Hudson.
I disagree and I would disagree that its up to me at all, Hudson replied.
All of those efforts failed.
Four states made minor changes to their total abortion bans, in close alignment with anti-abortion organizations.
In Idaho and Tennessee, doctors who first pushed for changes were cut out of the process after local anti-abortion organizations pressured lawmakers.
In North Dakota, the state repealed its abortion ban because of constitutional challenges. Then the representatives of local Catholic dioceses worked with the hospital association to pass a new bill that was nearly as strict as the original.
In Texas, a narrow bill quietly passed. It was put forward by Democrats, then changed by Republicans and specifically addresses court challenges.
In the four states, the new laws created exceptions for immediately life-threatening situations, such as ectopic pregnancies, where the fetus implants outside the uterine cavity, and molar pregnancies, where no embryo forms. The Texas law still allows doctors to be charged for providing abortion care for an ectopic pregnancy or if a patients water breaks before viability, but it codifies those conditions as a legitimate defense in court. The North Dakota law made some small concessions: A serious health risk is now defined as one that poses only substantial physical impairment to a major bodily function, not substantial and irreversible, for example.
Doctors said the new changes did little to help patients facing health risks or whose fetuses have severe anomalies. They said the exceptions are mainly limited to people who are already facing an emergency.
This was by design, according to some lawmakers, including Idaho state Sen. Todd Lakey, whose exceptions bill intentionally focused only on situations where a pregnant patient is facing death. That was our decision, was to focus on the life versus more of a health-type exception, he said. He said earlier that a womans health weighs less, yes, than the life of the child.
Also in Idaho, Democratic state Sen. Melissa Wintrow asked David Ripley, the leader of Idaho Chooses Life, why the laws new language couldnt include a broader exception for the health of the mother.
It sounds pretty easy to me to say, Hey, protect the health of the mother. Im at a loss as to why you cant put that language in the bill, she said during a hearing.
In the real world, were talking about a spectrum, Ripley responded. Were talking about death, and were talking about a headache. Idaho Chooses Life did not respond to a request for comment.
During the session, a state senator tried to remove Idahos exception for rape or incest. He failed, but the exception was limited to the first 12 weeks of pregnancy.
The exception, as with most abortion bans that have a rape or incest clause, requires a woman to produce a police report. Current law doesnt explicitly guarantee that rape or incest victims can get copies of their own reports when an investigation is open, said Wintrow.
When Tennessee Republicans introduced a bill to give doctors more protection to offer terminations when a pregnant patient faced a condition that could become life-threatening, Will Brewer, the lead lobbyist for Tennessee Right to Life, testified against it, arguing the patients condition needed to deteriorate before a doctor could intervene.
There are issues with pregnancy that could be considered an emergency or at least could possibly be considered an anomaly or medically futile that work themselves out, Brewer, who has no medical training, testified on the House floor. Im not talking about an eleventh hour, you know, a patient comes into the ER bleeding out, and what do we do? Im talking about (a situation when) there is a condition here that some doctors would say constitutes an emergency worthy of a termination and other doctors would say, Lets pause and wait this out and see how it goes. I wouldnt want the former to terminate when the latter says theres room to see how it goes before this is urgent enough.
He also opposed language that would allow doctors to prevent medical emergencies instead of treating active emergencies.
That prevent language has me concerned because that would mean that the emergency hasnt even occurred yet, he said. Brewer did not respond to a request for comment.
Doctors say that real-life pregnancy complications are rarely so cut and dried. In many cases, patients can go from stable to requiring life support in a matter of minutes.
It is not always so clear, and things dont always just work themselves out, said Dr. Kim Fortner, a Tennessee maternal-fetal medicine specialist with 20 years of experience, testifying at the same hearing.
And doctors point out that health risks that are not immediately life-threatening can still have severe consequences.
Conditions like hypertension or blood clots within the veins that are not life-threatening in the first trimester could cause death as the pregnancy progresses, said Dr. Carrie Cwiak, an OB-GYN in Georgia. In those cases, it should be the patients decision whether to continue their pregnancy not their doctors or their legislators decision, she said.
Tennessee Right to Life is part of a network of Christian special-interest groups that represents a minority of voters but wields outsized influence in Republican-majority legislatures. They use score cards to rate lawmakers on their fealty to anti-abortion causes and fund primary campaigns against Republicans who do not toe the line.
In February in Tennessee, for example, seven Republicans at a House subcommittee hearing expressed strong support for a bill written with input from doctors that would create exceptions for abortion care to prevent medical emergencies and for severe fetal anomalies.
No one wants to tell their spouse, child or loved one that their life is not important in a medical emergency as you watch them die when they could have been saved, said Republican state Rep. Esther Helton-Haynes, a nurse and one of the bills sponsors.
But Brewer, the Right to Life lobbyist, threatened during his testimony before the legislature that the groups political action committee would issue negative score cards to any lawmaker who voted for a health exception.
His comments drew a strong rebuke from the Republican speaker of the House that day. Afterward, Tennessee Right to Life sent out emails to their network of voters, urging them to contact lawmakers who supported the bill.
Tennessee state Sen. Richard Briggs, a physician, planned to introduce the same bill in the Senate because polling showed about 80% of Tennesseeans believe abortion should be either completely legal or legal under some conditions. But he told ProPublica the pressure was too much. He couldnt get the bill heard in any Senate committees after Right to Life came out against it.
Weeks later, Tennessee Right to Life supported a separate clarification bill that did not address the majority of the doctors concerns. No doctors were given the opportunity to speak in the legislature and the bill was quickly passed.
This is just pure power politics, said Briggs. Were going to have to address that were not listening to the voting public. And you know, we could lose. I mean, our people will start losing elections.
But in Louisiana, Mary DuBuisson, a Republican state representative who proposed a change to clarify that abortions are legal for people having miscarriages, lost her next election after the group ran attack ads against her.
In North Dakota, two Republican lawmakers considering an amendment to allow abortions after the six-week limit in cases of child rape said they would not vote for if it did not have the support of the North Dakota Catholic Conference, a group that acts on behalf of the states two Catholic dioceses. The amendment quickly failed.
In Idaho, an effort by doctors and the Idaho Medical Association to lobby a small health exception was stopped in its tracks when the chair of the Idaho Republican Party, Dorothy Moon, issued a letter accusing the medical association of being a progressive trade association that represents doctors educated in some of the farthest Left academic institutions in our country. Soon after, Republicans introduced a separate bill that cut out the doctors and was written with the input of Idaho Chooses Life.
In the four states that did pass bills, the changes were limited and designed to respond to court challenges.
For example, in Idaho, a state district judge found that their no-exception abortion ban violated a federal law that requires emergency departments to treat pregnant patients facing an emergency. The clarification bill, supported by Idaho Chooses Life, made a small exception for life-threatening emergencies, ectopic pregnancies and molar pregnancies, targeted to deflect the judges argument.
Idaho and Tennessee wanted to keep their law intact, said Ingrid Duran, the legislative director for National Right to Life. Her organization didnt want to see changes to the bans, but, she said, I understand why they needed to do that, just to remove the wind from the sails of the opposition.
The law has continued to make practicing maternal care in Idaho untenable for some doctors. They say the law is still unclear about the level of risk a patient must be facing for a doctor to offer abortion.
Idaho still has no exceptions for mom unless we know 100% theyre dying, said Dr. Lauren Miller, a maternal-fetal medicine specialist who has since left the state, part of an exodus of OB-GYNs who have moved due to the abortion ban.
Blaine Conzatti, the president of Idaho Family Policy Center, a group that helped pass the original version of the no-exception abortion law, said his organization did not want to see the law clarified.
We would want a stricter standard than what this law allows, he said. In his groups view, abortion is almost never ethical.
The only appropriate reason for abortion would be treating the mother and the unintended consequence is the death of the preborn child, he said. If the mother got cancer and you began treating her with chemo and radiation and the unintended consequence is that the baby dies, thats ethically appropriate. But performing an abortion procedure to terminate the pregnancy is not ethically appropriate.
For the anti-abortion movement, the goal has always been total abortion bans with no exceptions and constitutional recognition that a fetus has the same rights as a person, said Mary Ziegler, a leading historian of the U.S. abortion debate.
This unyielding position was influenced by thinkers like Charles E. Rice, a law professor at the University of Notre Dame whose 1990 book No Exception: A Pro-Life Imperative, argues that the anti-abortion movement should not support any exceptions even for the life of the pregnant person.
If two people are on a one-man raft in the middle of the ocean, the law does not permit one to throw the other overboard even to save his own life, he wrote.
The Catholic Church and the anti-abortion movement also have a history of celebrating the stories of women who were willing to sacrifice their lives to continue their pregnancies.
One of the most well-known stories is about Chiara Corbella Petrillo, a young Italian woman who refused chemotherapy in 2011 for cancer on her tongue because she was pregnant. As the cancer progressed, it became difficult for her to speak and see. A year after giving birth to a healthy baby boy, she died.
Live Action, a major anti-abortion advocacy group, included Petrillo on a list of 7 Brave Mothers Who Risked Their Lives to Save Their Preborn Babies.
In a culture where women are bombarded with the message that convenience and worldly achievement are tantamount even overriding their childrens right to life it is refreshing to see women who have defied the norm, an editor for the organization wrote.
In anti-abortion circles, Petrillo has been described as a heroine for the 21st century and a modern day saint.
Her story was turned into a book, which appeared on a 2016 Mothers Day gift list in the magazine Catholic Digest. The Catholic Church has opened an inquiry to consider whether Petrillo should be elevated to sainthood.
For decades, major anti-abortion groups did not see a no-exceptions approach as politically possible. Groups including National Right to Life and Susan B. Anthony Pro-Life America instead made gains by pressuring lawmakers to chip away at abortion protections via targeted restrictions that strangled access but wouldnt curtail the basic right enshrined in Roe v. Wade. Between 2011 and 2017, 50 abortion clinics in the South closed due to the new laws.
But after Donald Trump was elected and began filling the Supreme Court with judges handpicked by the Federalist Society, a network of conservative and libertarian lawyers, some influential anti-abortion activists saw an opening for more radical action.
Paul Benjamin Linton was one of them. A longtime Catholic legal activist, he had argued against Rices commitment to a no-exceptions position that had no chance in the Supreme Court not because he disagreed with it morally, but because he believed an incremental strategy would result in more babies being born. (Linton did not respond to emails and voicemails.)
After Trumps election, he shifted to supporting banning abortion completely. Linton began drafting legislation that did not include explicit exceptions for the life or health of the pregnant person. Starting in 2019, he promoted some of the countrys strictest abortion bans in Tennessee, Idaho, and Texas. Those trigger laws, unenforceable at the time they were passed, became a stark reality for millions of people of childbearing age when Roe was overturned. Though slightly modified in 2023, they continue to sharply limit the ability of doctors to provide abortions to patients facing health risks.
To many doctors in the most restrictive abortion-ban states who participated in the 2023 legislative session, the path forward offers few signs of hope. Some see little appetite from lawmakers and lobbyists to continue pushing for new exceptions unless the political calculus changes significantly.
Nikki Zite, a doctor involved in the effort to add exceptions to Tennessees abortion law, said she and her colleagues across the state have been asking lobbyists what the strategy is for a renewed push in the next session. I was hopeful that these issues would be revisited and we might have more success, Zite said. But Im hearing the excuse, Its an election year and theres a supermajority of Republicans and that its very unlikely to go anywhere.
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Powerful Activists and Lawmakers Have Blocked Post-Roe Abortion ... - ProPublica