GOP leaders blame abortion-ban confusion on doctors, misinformation

South Dakota Gov. Kristi Noem speaks to legislators.

By KIMBERLEE KRUESI

March 12, 2024 8:41 AM PT

NASHVILLE — In Republican-led states across the U.S., conservative legislators are refusing to reevaluate abortion bans — even as doctors and patients insist the laws’ exceptions are dangerously unclear, resulting in denied treatment to some pregnant women in need.

Instead, GOP leaders accuse abortion rights advocates of deliberately spreading misinformation and doctors of intentionally denying services in an effort to undercut 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.

The Republican-controlled South Dakota Legislature wants to create a video in which medical experts — and the state’s attorneys — would explain to doctors and patients when abortions can be legally performed. The measure was passed last month and is now awaiting the signature of Republican Gov. Kristi Noem, who has indicated she will sign it.

The first-in-the-nation idea is wholeheartedly supported by SBA Pro-Life, one of the country’s largest antiabortion groups, which says the video will help to 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 the organization’s public affairs director in South Dakota, Kelsey Pritchard.

Oklahoma and Kentucky are also taking steps to clarify their abortion bans, though in both states the attorneys general, not physicians, are the ones dictating the terms.

In Oklahoma, the AG sent out a memo in 2022 informing prosecutors and police that doctors should have “substantial leeway” to provide certain abortions. Last year, the office added that patients don’t have to be “septic, bleeding profusely, or otherwise close to death” — but reiterated a past warning that doctors should be prosecuted if there’s evidence they violated the law by providing an abortion when a woman’s life wasn’t actually in danger.

Kentucky’s attorney general has stated that miscarriages and ectopic pregnancies — when a fertilized egg grows outside the uterus — are both exempted from the state’s abortion ban, but has been silent on the majority of other pregnancy complications that physicians and patients have pointed out.

Since the U.S. Supreme Court overturned the constitutional right to abortion in 2022, states have been free to enact their own restrictions. South Dakota is among the 14 that ban abortion at all stages of pregnancy. The law does allow an abortion exception to save the life of the mother, but like similar statutes in other states, it does not clearly define which pregnancy complications are considered life-threatening.

State Republican Rep. Taylor Rehfeldt, a nurse anesthetist, said she decided to propose the informational video after hearing from physicians about the ongoing confusion. She said the video offered the best solution because any attempt to tweak the abortion ban itself would provoke strong disagreement among her GOP colleagues.

It remains to be seen how much help the video will be to patients and doctors. It’s not expected to specifically list pregnancy complications that would legally qualify women for abortions, and it’s unclear whether it will contain a legal disclaimer warning that anyone who watches the video may still face potential criminal charges.

“It’s not going to deal with hard calls,” said Greer Donley, an associate professor at the University of Pittsburgh School of Law who is an expert on abortion law. “They actually don’t want to deal with the hard calls because their movement is not sure ... how those hard calls should be resolved.”

South Dakota Republican state Sen. Erin Tobin, one of the measure’s proponents, acknowledged to a Senate panel last month that the video will not contain specific examples.

“That’s the problem with healthcare, is that there are so many different circumstances, that you have to allow doctors discretion,” Tobin said.

As some states mull how to clarify — without weakening — their abortion bans, abortion rights advocates in several states continue to challenge the bans with lawsuits.

Twenty Texas women denied abortions are suing the state seeking clarification, while advocates filed a lawsuit in Tennessee arguing that the state ban’s vaguely defined exceptions put pregnant women’s lives at risk.

Tennessee Atty. Gen. Jonathan Skrmetti pushed back. He argued that it wasn’t the law, per se, that is harming women but rather “other factors like doctors’ independent choices not to provide permissible abortions.”

The lawsuit is ongoing, with attorneys expected to make their arguments before a three-judge panel next month on whether the state ban should be temporarily blocked as the legal battle continues or if the case should be dismissed entirely.

Donley spurned the idea that doctors bear the responsibility for endangering patients.

“I completely reject any narrative that there’s any sort of provider out there that’s intentionally harming women and pregnant people for the sake of a news story,” she said. “That’s just not happening. But are mistakes being made because people are terrified? Yeah, probably.”

In Texas, a pregnant woman whose fetus had a fatal condition went straight to the state supreme court last year to request an exemption from the Lone Star State’s strict ban. The court denied Katie Cox’s request — forcing her to go out of state to get an abortion — but did urge the Texas Medical Board to issue guidance to doctors on how to interpret the law.

“While the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do,” the justices wrote.

And yet the medical board, comprising 19 members appointed by the governor, has so far not offered any sort of guidance.

Republican Gov. Greg Abbott is a vocal abortion opponent.

Frustrated with the board’s inaction, Amy and Steven Bresnen, a couple who are lawyers and lobbyists, filed a petition in January asking it to clarify what circumstances qualify as medical exceptions to the state’s abortion ban.

“Pregnant females in life-threatening situations and the health care providers otherwise willing to save their lives simply cannot be required to stand idly in the void when the TMB (Texas Medical Board) has the authority to act and the duty to regulate medicine in this state in the public interest,” the petition states.

The board is expected to meet later this month and will likely address the petition, Steven Bresnen said.

“Nobody has put them on the spit to make them make a formal decision,” he said. “If they decline to, they have to explain why.”

Kruesi writes for the Associated Press.