The Future of Abortion Ban Arrests

Clarifying disagreements by making bets

Photo by Erik Mclean on Unsplash

Frequent commenter Martha and I agree on a lot about building up networks of mutual aid (and the public policy to support it). But we disagree strongly on the ethics abortion, so I’m particularly grateful she’s stuck around for years, helping to put the “s” in Other Feminisms.

We don’t just disagree on whether abortion bans are aimed at a real good, we also disagree on whether they have robust protections for women and doctors in the case of medical emergency. (I think they could be improved specifically with respect to PPROM, premature rupture of membranes, but are otherwise pretty good). I’ve covered why I don’t think bans are to blame for substandard care (which happens in pro-choice states too) and why I think hospitals are derelict in offering the guidance doctors need.

A big question is: when (if ever) should doctors feel they can accept the laws and exemptions at face value versus seeing them as a trap waiting to spring. As time passes, and doctors (clearly) do intervene in emergencies without charges, I think they should become more confident pro-life states are giving them a yes for an answer.

Martha expects the future to play out differently:

I do believe that dozens+ of doctors who have performed medically necessary abortions and who have been public about their anti-abortion-restriction beliefs will be charged in the next five years.

So, we’ve formalized our disagreement into a bet. Martha and I are on opposite sides of this question, which she’s willing to bet at 70% odds. (We’re just staking $50 each).

By the end of 2030, more than 30 doctors will be charged for violating a criminal statute related to providing abortion-related care. These charges count for our bet specifically if the doctor (or hospital) claims the sanctioned care was necessary to preserve the life or health of the mother.

Martha adds that she anticipates the doctors will be charged “after an accusation from a family member / the patient themselves” but she’s not on the hook for that element.

I like formalizing disagreement into bets because in order to make something specific enough to resolve, you both need to clarify how you disagree. And (as is the case here) it makes it clear we disagree strongly about the morality of a law because we have very different expectations about what it will look like applied.

I’m curious which side of the bet Other Feminisms readers would take, so I’ve got a poll just below, and I’m asking you to sort by “pro-life” / “pro-choice.” (Yes, I know that may not be the language you always use as a self-descriptor, but please whichever one you’re closer to.

If you’re a Manifold Markets user, I’ve also made a market for this question (where you can bet with play money).

Now that you’ve had the chance to vote or bet, I’ll expand a little on why I’m on my side of the prediction.

First, I know a lot of politically active pro-lifers and they’re not aiming to prosecute doctors who make a good faith attempt to save a mother’s life. And then there are a bunch of politicians who don’t care much about the pro-life cause but really really don’t want to be on the hook for these consequences.

But beyond the question of people’s intentions or good faith, I think we should expect the bans to keep playing out as they have so far… with few to no prosecutions.

Shortly after Texas passed SB8 in 2021, which established a private right of action to sue doctors who provide abortions, Dr. Alan Braid wrote a WaPo op-ed titled: “Why I violated Texas’s extreme abortion ban.” Braid was explicit that he violated the law as a matter of civil disobedience:

On the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.

I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.

What happened next? A few activists attempted to sue him and claim SB8’s bounty, but their cases were thrown out for lack of standing because they were not “directly impacted by the abortion services provided.” SB8 was a weird law (and I think a bad idea), which was an attempt to do an end run around Roe before Dobbs.

Post-Dobbs, in 2025, a Texas midwife was the first person to be charged with a felony under Texas’s ban. She allegedly provided illegal abortions and also was charged with practicing medicine without a license. The case is ongoing. Here’s what one patient alleged in an affidavit:

In interviews with investigators, E.G. said Rojas’ employees portrayed her as a doctor, so when Rojas told E.G. that her pregnancy was likely non-viable, she agreed to take the abortion pills Rojas offered.

The woman told investigators that she would have continued the pregnancy, but “since the gynecologist informed her of medical complications that would arise should she continue with the pregnancy, she relied on that medical advice.”

Texas has also brought a civil case against a New York doctor who sent abortion pills to a patient in Texas using a telemedicine service. Louisiana filed criminal charges against the same doctor for the same reason. Relying on New York shield’s law, the doctor has not paid fines or appeared in court in either state.

None of these cases would meet the criteria that Martha and I have agreed on. I anticipate future investigations and/or charges will focus on telehealth (which will not be emergency care) or cases where things are allegedly going egregiously wrong (as with Rojas’s case).

Time will tell.

Why did you take one of our side’s of the bet?

Is there any relevant context you think we’re leaving out of the question?

Have you ever been able to improve a disagreement by getting concrete about what predictions flow out of your beliefs?