Life and health exemptions to abortion bans are complex. With the legality of abortion effectively on the Aug. 2 ballot, Kansans should understand how looming government regulations might affect women’s health.
If the abortion amendment passes, the Kansas legislature will likely ban all or most abortions soon. Conservatives have generally avoided talking about abortion bans during this campaign, instead opting for emotional arguments that often mislead voters about threats to current abortion regulations and what types of abortions are actually occurring here.
But recently, conservatives have started going off script. Most notably, the Kansas Reflector reported on comments from conservative legislators and an activist group staffer about House Bill (HB) 2746.
HB 2746 was introduced in the Kansas legislature this year. It banned abortion except in limited circumstances, with no exception for rape, incest, or many threats to a woman’s life or health.
Let’s focus on life and health. Should something like HB 2746 pass, states that have newly banned abortion are giving Kansas hints of its future.
Most state abortion bans offer some vague exception for a woman’s life, though sometimes not her health in non-fatal situations. Doctors and hospitals in many states are voicing concerns in media reports that they are unsure how to navigate the intentionally vague language of these exceptions.
Specifically, doctors are often unsure if they can legally provide emergency abortions in many cases, even when they feel women have clear health needs. Violating these new abortion bans carries penalties up to life in prison in some states, so it’s understandable that doctors who fear prosecution are denying or delaying medical care to women.
Let’s identify some scenarios where it’s often uncertain whether abortion is allowed under vague life or health exceptions:
If a woman develops a serious condition where her chance of dying is under fifty percent or not quantifiable, is that “life-threatening” enough?
If a woman discovers cancer but it won’t immediately kill her, should government require her to delay chemotherapy?
Since many states explicitly require health threats to be physical, what about women experiencing severe mental health crises?
If a pregnancy will likely result in stillbirth or a quick death for the fetus, should government require women to endure the mental and physical effects of continuing with that pregnancy?
What about high risk of cardiac failure but symptoms haven’t yet manifested? Pre-eclampsia? Placenta accreta?
Responding to confusion among doctors, President Biden recently issued Executive Order 14076. It reminds medical providers of their obligation to provide emergency care—including emergency abortions—under the Emergency Medical Treatment and Active Labor Act of 1986. Texas has filed a lawsuit challenging that emergency care obligation, and federal courts have yet to rule.
Kansas already bans abortion after 22 weeks. If conservatives ban abortion before that point and if they allow health or life exemptions, then like any new government regulation, it takes time and—ultimately—testing the law to learn how government is implementing it.
Under a ban, if Kansas doctors perform emergency abortions under a life or health exemption and if the government does not prosecute them or their female patients, then doctors may get comfortable performing emergency abortions they feel are warranted. But as that process evolves, women can expect delayed or denied care—and likely riskier pregnancies—while doctors navigate the new regulations.
Patrick R. Miller is an Associate Professor of Political Science at the University of Kansas.