The Future of Abortion Ban Arrests
Clarifying disagreements by making bets
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.
Well first: Hi! I'm a new follower. My name is Franki and a friend recently introduced me to your book. I am really enjoying it so far. I am a mom of three, a former doula and am currently wrapping up a degree in Marriage and Family Therapy with a lot of extra training in perinatal mental health care. All this to say, I love these topic, am excited to engage them, and am glad you are doing so!
In the poll I noted that I am pro-life and also don't think we will see a lot of prosecution in states with abortion bans. That said, I am still hesitant about abortion ban law. In some ways I agree with both you and Martha. I do just think the current bans presently lack clarity that creates institutional and systemic risk for hospitals and for physicians. The threat of criminal penalties in addition to the intense politicization of this topic (which is maybe singular except in end of life care?) creates an atmosphere of fear for individual acting physicians. In situations where decisions are time-sensitive and outcomes are unpredictable, which is really anything related to birth, I think the threat of prosecution itself is what leads to the pauses, the delays, or the transfers. That moment of pause can lead to physical and psychological harm to mothers, babies, and families.
I'm not an expert on this and honestly could be very wrong, but I do think that after EMTALA was passed, CMS provided information on what counts as an "emergency medical care" which stabilized enforcement. I do think that clarity supersedes the lack of state clarity of the topic, which I think is why I lean towards your side of seeing few criminal cases. However, I think the nature of penalties for EMTALA violations are civil fines and loss of medicare funding for institutions, both of which are covered by insurance policies. In contrast, state abortion bans impose a felony/misdemeanor penalty for an individual physician, which is typically not covered by insurance. That difference in who bears the risk fundamentally changes how individual physicians respond to uncertainty and that is what gives me pause about the laws.
Thanks Leah! I do think this process is helpful to clarify disagreement.
I also want to clarify that I’m actively working to lose this bet by overturning bans and fighting against the prosecution of doctors and supporting their ability to provide care. As Katha raised, even without charges there are horrific impacts on women and doctors because of these laws.