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Exploring the Limits of Pro-Life Laws
Doctors and lawyers lay the "last mile" of the laws legislators pass
I was grateful to be included in the first installment of a series of seminars on “Caring for Women and Children: Navigating Medicine, Law, and Policy after Dobbs.” The series is sponsored by Notre Dames’s de Nicola Center for Ethics and Culture, and the next panel will be in September.
The three other panelists were all OB-GYNs, and I was there to provide the perspective of a patient, based on my experience receiving care during miscarriages and, in particular, our loss of our baby Camillian in an ectopic pregnancy.
I was grateful to hear some of their stories of their experience providing care to women experiencing dangerous pregnancy complications. (I also deeply appreciated Matthew Loftus’s essay on this topic for the New York Times).
I’m currently in the process of researching a forthcoming article for Plough on “life of the mother” exemptions after Dobbs, and there are two key questions I’m trying to get people to talk to me on the record about.
The Law as Written vs. the Law as Applied (by skittish attorneys)
It’s the job of a hospital attorney not to make sure no one breaks the law, but to make sure no one is ever close enough to a law to allow the question of whether they broke it to be plausibly raised.
That means interpreting a law’s exemptions narrowly and its scope broadly. It means writing guidelines that rule out a lot of technically-legal-but-you-don’t-want-to-have-to-prove-it practice.
It seems like this dynamic is at the heart of a lot of questions about whether doctors are free to treat miscarriages, ectopic pregnancies, and life-threatening complications, even if treating the mother will end the life of the child she is carrying. Even states with explicit carveouts have had rumors of treatment denied.
I’m looking for introductions to lawyers who have worked for hospital systems, and who can talk about the experience of translating a new law into hospital policy. I’d love to talk to someone who has done this work specifically on abortion policy after Dobbs, but I’d also find it helpful to talk to someone who had done this kind of legal work on any topic related to patient care.
Textbook Medical Practice vs. Medicine as Typically Practiced
In the Notre Dame panel, the doctors did a good job explaining the kinds of decisions they have to make in their practice, and how they evaluate the risk of certain kinds of complications.
For some conditions, watchful waiting is appropriate—as long as people are prepared to act if the situation escalates. I’ve been in that position sometimes during miscarriage—when we could see that our baby had died, we were free to choose between waiting to see if I would physically miscarry without medical intervention or asking the doctor to help the process along with medication or a D&C. I chose to wait, and the doctor went over possible signs of infection or complication that meant we’d need to return.
It’s always been easier for me to choose watchful waiting because I have had jobs that are flexible about taking time off to see doctors and because I am comfortable reading medical studies and seeing the numbers behind the doctor’s risk assessment. I’ve been choosy about my doctors; picking people who take their time and explain my options clearly and compassionately.
But the United States has terrible maternal mortality and complication rates because many women don’t have these advantages. Even Serena Williams, the titan of tennis, was seriously endangered because her doctors ignored her symptoms and her assessment of risk.
Pregnant women don’t always receive the standard of care, and vulnerable women are at most risk of having their symptoms brushed off. This isn’t an abortion-specific problem, but it matters here if the laws are written with perfect practice, not typical practice, in mind.
I’d like to speak to people who are advocates for vulnerable women, particularly low-income, non-white women, about their experience helping women be heard by doctors. That could include people on either side of the abortion divide. I’d like to know where they see the greatest danger and what accommodations matter most in their experience.
If you’re a reader of Other Feminisms, and you might have a helpful introduction to make, please email me directly by replying to this email.
I know I have pro-life and pro-choice readers, and I’d like to speak to people on both sides of this question.
The final piece won’t be able to cover every facet of this issue, which is why I’m focusing on the two questions above, but I’d like to know what else you’d hope to learn from these interviews, whether it winds up folded into the final Plough piece, or run as a supplement on Other Feminisms.