Following the Court’s decision in Dobbs, a number of pregnant people have been unable to receive necessary medical care, including abortions, resulting in tragic consequences. For example, Kate Cox, whose story was reported widely, received the terrible news of a pregnancy complication: the fetus had been diagnosed with Trisomy 18, a condition fatal for the fetus. Cox sought an abortion on her doctor’s advice that would best protect her health and future fertility. She sought a court order allowing her to get an abortion notwithstanding a Texas law prohibiting abortions in nearly all circumstances, which was granted by the trial court. The Texas AG appealed that determination. Ultimately, due to the passage of time and danger to her health, Cox left the state to obtain an abortion. The Texas Supreme Court ultimately determined that Cox’s case didn’t fall within the statutory exception to the ban, which permits abortions to preserve the life of the mother or to avoid “substantial impairment of major bodily function.”
Many tragic cases have demonstrated the harm of denying necessary medical care to pregnant women: Amber Thurman, Josseli Barnica, Candi Miller, Nevaeh Crain all died after being unable to access lifesaving treatment. These tragedies are a direct result of the abortion bans that have been promulgated after Dobbs overturned the Roe–Casey framework, allowing states to freely regulate, and prohibit, abortion. Importantly, Dobbs negated the constitutional significance of reproductive autonomy, holding that this was not a constitutional right that had to be accounted for in abortion regulation. In light of that, state abortion bans—like in Texas and Georgia—principally balance the interests of fetal life and maternal health. These statutes make explicit exceptions for the provision of abortion healthcare when the life of the mother is threatened. Under any reasonable interpretation, these statutes should have allowed for care in all of these cases. Why then did these women not receive the due care?
The answer is that their medical providers were chilled from providing them such care. Though the record is not always clear, in many of these cases, these women had sought medical help in the face of life-threatening conditions; however, their healthcare providers were waiting for the patients’ conditions to become sufficiently life-threatening to avoid liability under the statutory regimes.
As a result, there has been a focus on the statutory regimes themselves, including how the statutes could be clearer to ensure that healthcare providers understand when they can legally provide healthcare including whether revisions to the statutes are necessary to ensure an appropriate balance of interests between maternal health and fetal life.
I suggest that this seemingly exclusive attention to the legal language itself ignores an important factor: the legal officials enforcing the statutory bans. There are a number of anti-abortion extremists out in the world—who would categorically ban all abortion healthcare, no exceptions. Some of those extremists have arisen to positions of legal power, with the ability to enforce their desired categorical bans.
Aren’t such legal officials constrained by the statutes—which explicitly allow for life-saving care? Unfortunately, no. For example, the Texas and Georgia bans use terms like “life-threatening condition” and “medical emergency” that are inherently vague. It is unclear how serious a health condition must be to legally satisfy the statutory requirement. Indeed, Greer Donley and Caroline Kelly comprehensively make this case. As a result, legal officials have a great deal of discretion in enforcing these abortion bans. And if they are anti-abortion extremists, they can pursue a categorical ban through oppressive enforcement.
The presence of these anti-abortion extremists has important implications for regulating abortion, and this example teaches us much about regulating generally. One important lesson is about chilling costs.
Chilling occurs when a law deters individuals from engaging in potentially beneficial conduct that does not cause the evil that the law was created to address. The chilling cost is the summation of the potentially beneficial conduct that is deterred.
In general, we calculate the chilling cost by looking at the relevant statutes—inquiring about the probability that the statutory language may render liable some beneficial conduct and, as a result, deter such conduct. But abortion regulation exposes another contributor to such chilling cost: the presence of extremist legal officials. In cases where extremism is afoot, it is not enough to consider what conduct may be enveloped in a statute’s reasonable interpretations. In addition, one must consider the likelihood that one’s case may be overseen by an extremist legal official—because such officials will use their discretion to pursue enforcement actions.
There’s much more to say, and I say some of it here, in this draft paper. (Early draft, so comments very welcome!)
One question that we can reasonably ask is this: Assuming arguendo the balance of interests in the statutory abortion bans—namely, that the relevant considerations are maternal health and fetal life (and not reproductive freedom)—how can we regulate in a way that would actually protect maternal health? How can we draft the statutes to make that crystal clear?
I argue that, in light of the inevitable discretion conferred upon legal officials and the substantial number of anti-abortion extremists, there is no way to regulate abortion that appropriately safeguards maternal health.