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Why the Dobbs Decision Won’t Jeopardize Pregnancy-Related Medical Care


This article is part of a symposium in the field decision in Dobbs v. Jackson Women’s Health Organization.

Elizabeth R. Kirk is director of the Center for Law & the Human Person at the Columbus School of Law at the Catholic University of America. She is an associate researcher at the Charlotte Lozier Institute. Dr. Ingrid Skop is a gynecologist-obstetrician and senior associate and director of medical affairs at the Charlotte Lozier Institute.

Many are grappling with the legal and practical implications of the Supreme Court’s decision in Dobbs to spill Roe vs. Wade. One of the most common claims from politicians and media pundits is that the court ruling means states that choose to limit or ban abortion will also bar women from receiving life-saving medical care for extra pregnancies. -uterines and miscarriages. Indeed, the dissent predicts that following its decision in Dobbs“the Court may face questions about the application of abortion regulations to medical care that most people consider very different from abortion. … [H]How about using dilation and evacuation or medications for miscarriage management? »

Although it has enormous consequences, the majority decision has no impact on medical care in these situations. Rather, it was a simple matter of constitutional interpretation: “The Constitution does not prohibit the citizens of any state from regulating or prohibiting abortion. Thus, after 50 years, the people and their elected officials will again govern themselves in matters of abortion.

This decision in no way restricted access to abortion, much less to life-saving medical care for women. The law in question Dobbs did not deal with a ban on medical treatment in such circumstances. Mississippi law, which prohibits elective abortions after 15 weeks, specifically excludes from the definition of abortion the use of drugs or procedures performed “to terminate an ectopic pregnancy or to remove a dead human being from to be born”.

Moreover, in its ruling, the court did not argue, or even point out, that medical care related to the pregnancy was at risk. On the contrary, among the legitimate state interests listed as justifying future regulation or prohibition of abortion, the court specifically identified “the protection of maternal health and safety”.

When considering the scope of the conduct, state legislators could prohibit as a result of Dobbsthere are two points to underline: one medical and the other legal.

The first point is to distinguish the medical treatment of ectopic pregnancies and miscarriages from abortion procedures. The medical treatment of a pregnant mother and her child aims to protect the life and health of both patients, as far as possible. In contrast, the purpose of abortion is to cause the death of one of the patients, namely the unborn child. An abortion procedure is not the same as treating an ectopic pregnancy or managing a miscarriage, which even Planned Parenthood admits.

In the event that a pregnancy implants in an extrauterine location (most often the fallopian tube), it cannot continue to grow until the fetus can survive separated from its mother. An ectopic pregnancy poses life-threatening risks to the mother due to ruptured tubes and catastrophic bleeding if left unattended.

The indication and interventions for the treatment of ectopic pregnancy versus elective abortion are very different. Mifepristone and misoprostol, commonly used to provide medical abortions, do not specifically treat pregnancy outside the womb, and deaths have occurred in women seeking abortions when this condition has not been ruled out beforehand. . For pregnancy loss (miscarriage), treatments are sometimes the same as for abortion (eg, dilation and aspiration or misoprostol or, more rarely, a combination of mifepristone/misoprostol). But the goal is very different, that is, to remove an already dead fetus or to cause the death of a fetus.

It is rare for significant bleeding to occur as part of an incomplete miscarriage while the fetus is still alive, but should it occur, the “mother’s life” interruption exception would apply and the obstetrician could use clinical judgment to determine the treatment needed. In other words, standard medical procedures are available to treat pregnancy-related conditions such as ectopic pregnancies and miscarriages, even when states restrict elective abortion.

The second point is that, upon inspection, the laws reflect the medical reality of genuine pregnancy-related medical care. It is helpful to consider examples from some of the most pro-life states in the nation as indicators of what is likely to happen as a result of Dobbs.

For example, Texas law, which prohibits abortions after a detectable heartbeat, defines abortion as “the act of using or prescribing any instrument, drug, medicine or other substance, device or means with the intent to cause the death of an unborn child of a woman known to be pregnant “. … An act is not an abortion if it is done with intent to: … (B) remove a dead, unborn child, whose death was caused by spontaneous abortion [i.e., a miscarriage]; or (C) remove an ectopic pregnancy. The law also specifically provides an exception where the physician believes there is a medical emergency.

Oklahoma’s New Ban on Post-Fertilization Abortions contains an almost identical definition of the term abortion, specifically excluding the removal of an ectopic pregnancy and the management of a miscarriage. The law also contains an exception for abortions “necessary to save the life of a pregnant woman in the event of a medical emergency.”

Louisiana changed its trigger law and specifically provides exceptions for the treatment of ectopic pregnancies and miscarriages. It provides that abortion does not mean: “(ii) The removal of an unborn child or the inducement or delivery of uterine contents in the event of a positive diagnosis…that the pregnancy is terminated or is about to end inevitably and without treatment due to a spontaneous miscarriage…. (iii) Removal of an ectopic pregnancy. (iv) The use of methotrexate to treat an ectopic pregnancy. The law also excludes from the definition of abortion a procedure performed “to prevent the death or substantial risk of death of the pregnant woman from a physical condition, or to prevent serious and permanent organ vital of a pregnant woman.”

Like the Mississippi law, in each of these laws, contrary to the alarm cries of dissent and what is beginning to look like a coordinated fear campaign, states have demonstrated that it is possible to time to restrict abortion to all but the most limited circumstances and to ensure that pregnant women continue to receive life-saving medical care.

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