NASHVILLE, Tenn. — In Republican-led states across the US, conservative lawmakers are refusing to reevaluate abortion bans — even as doctors and patients insist the law’s exceptions are dangerously unclear, resulting in treatment being denied to some pregnant women in need.
Instead, Republican leaders are accusing abortion rights advocates of deliberately spreading misinformation and doctors of deliberately denying services in an effort to undermine the bans and make a political point. At the same time, however, some states are taking steps that they say will provide more clarity about when abortions can be legally performed.
South Dakota’s Republican-controlled legislature wants to create a video in which medical experts — and the state’s attorneys — explain to doctors and patients when abortions can be legally performed. The measure passed last month and now awaits the signature of Republican Gov. Kristi Noem, who has indicated he will sign the measure.
The first-in-the-nation idea is strongly supported by SBA Pro-Life, one of the nation’s largest anti-abortion groups, which says the video will help combat “confusion caused by the abortion industry.”
“South Dakota is showing the rest of the nation how to protect women’s lives from the misinformation surrounding abortion laws,” said Kelsey Pritchard, director of public affairs for the South Dakota organization.
Oklahoma and Kentucky are also taking steps to clarify their abortion bans, although in both states attorneys general, not doctors, are the ones dictating the terms.
In Oklahoma, the AG sent a memo in 2022 informing prosecutors and police that doctors should have “substantial latitude” to perform certain abortions. Last year, the office added that patients do not have to be “septic, bleeding profusely, or otherwise close to death” — but reiterated an earlier warning that doctors should be prosecuted if there is evidence they broke the law by to perform an abortion when a woman’s life was not actually in danger.
Kentucky’s attorney general has said miscarriages and ectopic pregnancies — in which a fertilized egg grows outside the uterus — are both exempt from the state’s abortion ban, but has remained silent on most other pregnancy complications that doctors and patients have pointed out.
Since the U.S. Supreme Court struck down the constitutional right to abortion in 2022, states have been free to impose their own restrictions. South Dakota is one of fourteen states that ban abortion at all stages of pregnancy. The law does allow an exception to abortion to save the mother’s life, but like similar statutes in other states, it does not clearly define which pregnancy complications are considered life-threatening.
Republican state Rep. Taylor Rehfeldt, a nurse anesthetist, said she decided to propose the informational video after hearing from doctors about the ongoing confusion. She said the video offered the best solution because any attempt to change the abortion ban itself would cause major disagreement among her Republican colleagues.
However, it remains to be seen how much help the video will be to patients and doctors. It is not expected to specifically mention pregnancy complications that would make women legally eligible for an abortion, and it is unclear whether the video will include a legal disclaimer warning that anyone who views the video may still experience possible criminal prosecution.
“It’s not going to work with tough decisions,” said Greer Donley, an associate professor at the University of Pittsburgh School of Law and an expert on abortion law. “They actually don’t want to deal with the tough calls because their movement isn’t sure … how to resolve those tough calls.”
Republican Sen. Erin Tobin of South Dakota, one of the measure’s supporters, acknowledged to a Senate panel last month that the video will not include specific examples.
“That’s the problem with health care: There are so many different circumstances, you have to give doctors freedom,” Tobin said.
As some states consider how to clarify—without weakening—their abortion bans, abortion rights advocates in several states continue to challenge the bans with lawsuits.
Twenty Texas women who denied abortions have sued the state seeking clarification, while advocates have filed a lawsuit in Tennessee, arguing that the state’s ban’s vaguely defined exceptions endanger the lives of pregnant women.
Tennessee Attorney General Jonathan Skrmetti pushed back. He argued that it is not the law per se that harms women, but rather “other factors, such as doctors’ independent choice not to perform permitted abortions.”
The lawsuit is ongoing, and attorneys are expected to present their arguments before a three-judge panel next month on whether the state ban should be temporarily blocked as the legal battle continues or the case should be dismissed entirely.
Donley rejected the idea that doctors bear responsibility for endangering patients.
“I completely reject any narrative that there is any kind of provider out there that is intentionally harming women and pregnant people for the sake of a news story,” she said. “That just doesn’t happen. But are mistakes made because people are terrified? Yes probably.”
In Texas, a pregnant woman whose fetus had a fatal condition went straight to the state Supreme Court last year to seek relief from the Lone Star State’s strict ban. The court denied Katie Cox’s request — forcing her to leave the state to have an abortion — but urged the Texas Medical Board to provide doctors with guidance on how to interpret the law.
“While the judiciary cannot force the executive branches to do their part, it is clear that the legal process will be smoother if they do,” the judges wrote.
And yet the medical board, made up of 19 members appointed by the governor, has yet to provide any guidance.
Republican Governor Greg Abbott is an outspoken opponent of abortion.
Frustrated by the administration’s inaction, Amy and Steven Bresnen, a married couple who are attorneys and lobbyists, filed a petition in January asking them to clarify what circumstances qualify as medical exceptions to the state’s abortion ban.
“Pregnant women in life-threatening situations and the healthcare providers otherwise prepared to save their lives simply cannot be required to stand idly in the void while the TMB (Texas Medical Board) has the authority to act and has a duty to regulate medicine in this area. is in the public interest,” the petition said.
The board is expected to meet later this month and likely consider the petition, Steven Bresnen said.
“Nobody put them on the spit to get them to make a formal decision,” he said. “If they refuse, they must explain why.”
