How exceptions to abortion bans work in practice

The much awaited report of the Irish government "Expert Group"recommending how to implement exceptions to Ireland's abortion ban was issued this week. I have yet to read it, but when I do, I'll provide an analysis.

In the meantime, one of the attorneys who participated in the famous "A, B and C" case has written an interesting essay about legal exceptions to abortion bans. In A, B and C v. Ireland (2010) the European Court of Human Rights, consistent with the Supreme Court of Ireland, demanded that Ireland adopt at least a life-saving exception to its total legal ban on abortion-- which the Irish government has not done.

In the wake of the death of Dr. Savita Halappanaver and resulting public pressure, the Irish government has finally produced a set of recommended legal and medical guidelines for doctors for implementing a "life" exception.

The attorney and author of the Slate article, Julie F. Kay, expresses skepticism that a narrow life exception will do much good, because doctors will still be quite worried about acting outside its bounds. This is especially the case, she asserts, where the exception merely covers threats to a pregnant woman's life and not her health as well:

In medicine there are rarely bright lines. There are, for instance, no guidelines for doctors on the distinction between a medical procedure necessary to preserve a woman’s life versus a procedure that would merely protect her health. Should a pregnant woman sit in a doctor’s office or a hospital bed waiting for her health to decline to the point where her doctor feels that an abortion is inarguably legal, at which point it may be too late? (Emphasis in original.)

Kay also suggests, to her American readers, that pro-life legislators and activists would like to make the United States legal and social landscape more Irish, and that this is a real danger:

This is coming soon to a medical theater near you. Anti-abortion zealots in the United States seek to replicate Ireland’s draconian laws by enacting fetal personhood legislation and emphasizing exceptions that in practice are unworkable. In the last election, moderate Republican candidates only had to support legal abortion in cases of rape, incest, and life of the woman to be considered reasonable. As we’ve seen from Halappanavar’s story, there’s nothing reasonable about that. 

I think Kay is correct that, in the area of abortion, it is difficult to craft exceptions to an abortion ban in precise legal language that clearly applies to some situations but not others, in particular regarding the concept of 'threats' to 'health' and 'life.' In addition, some exceptions, like ones for pregnancies caused by rape or incest, are hard to objectively validate. How, for example, are the authorities to verify that a pregnancy was the result of rape?

Given the difficulty in crafting legally unambiguous exceptions and the difficulty in verifying the requisite conditions for the application of some exceptions, legal authorities and doctors in a given society tend to adopt one of two practices:

1. The authorities signal that they are going to police exceptions to a general abortion ban strictly, to avoid abuse of ambiguous language. Under this paradigm, the legal exceptions disappear as realistic options. The exceptions are not opportunities to provide abortions to women that need them; instead they are ambiguous traps for unwary doctors and medical personnel. This is Ireland's situation. When it comes to exceptions for rape-caused pregnancies, the authorities traumatize rape victims by interrogating them about the validity of the sexual assault to ensure that they are not 'faking.' This happens in some Central and South American countries-- and used to happen in the United States. 
2. The authorities-- and/or judges, employing the general principle that people can't be prosecuted under vague criminal prohibitions-- police the use of legal exceptions loosely. The exceptions, then, in practice become general allowances of abortion, and abortion is widely legal despite the letter of the law. As for rape and incest exceptions, there is little to no appetite to question the word of the pregnant woman applying for an abortion under these circumstances. This is the general state of things, I believe, in most European countries, including the UK, where many Irish women go to have abortions. 

Pro-life groups tend to worry about the second set of practices, and so oppose attempts in countries like Ireland to liberalize abortion laws. In the United States, some pro-life activists want any life exceptions under a hoped-for post-Roe regime to be limited to threats to the physical life of the mother. Similarly, I believe the argument that abortions are never medically necessary is motivated by a desire to avoid the creation of any exceptions to a general abortion ban that could be abused. 

Pro-choice activists like Julie F. Kay, on the other hand, worry about the first set of practices, and so worry about the narrowing of abortion laws to a general ban with exceptions 'allowed.' 

Who is right? I think it depends on the country and its history. Since the early 1970s, American judges, in particular the federal judges, have largely fallen into the second camp-- loose application of exceptions. For example, people forget that the first U.S. Supreme Court decision on abortion, United States v. Vuitch, 402 U.S. 62 (1971), was decided largely on vagueness grounds. 

In that case, the Supreme Court examined the abortion law of Washington, D.C., which had a "life and health" exception to a general abortion ban. The Supreme Court upheld the exception as constitutional by construing it as being very broad in application, and essentially placed the decision as to when it should be applied in the hands of physicians. The Supreme Court also held that if the government wanted to prosecute a doctor for performing an abortion outside the scope of the "life or health" exception, the prosecution had to prove beyond a reasonable doubt that the abortion did not fall within the bounds of the exception-- a very difficult task, given that the term "health" was construed to include "psychological as well as physical well-being . . ."

This seminal though (now) little known case is, I think, representative of the legal paradigm in the United States. Even if Roe were overturned, I think exceptions to resulting abortion bans (and there would be some) would end up being very broadly construed and applied by judges. 

Links:

Pdf copy of the Report of the Expert Group on the Judgment in A, B and C v. Ireland (November 2012)

Article in Slate written by an attorney who participated in the A, B and C v. Ireland case (November 28, 2012): Exceptions Don't Work: What the Irish Abortion Tragedy Means for the United States