Sacrificing the body: The little discussed clause in "life of the mother" exceptions

Legislating ultra-sacrificial motherhood

Dec 11, 2023

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“[Women] have always been the chief sufferers of bad legislation.” - Belva Lockwood, 1887

Watching my grandfather open his Christmas presents was a kind of anticipatory torture. With a letter opener or a knife, he would slowly cut along each taped seam. “Just rip it!” I recall screaming internally. “Why does he care so much about the wrapping paper?” It felt as though eons had passed by the time the wrapping paper, unblemished, was delicately opened to reveal the gift concealed within it.

Wrapping paper had no value to me. I shredded that paper with vigor, ripping it open as quickly as humanly possible. The gift inside was the only thing of value for me.

What happens when a law assigns supreme value to the “gift” within a person's body? When a law treats the bodies of pregnant people as mere wrapping? What happens when pregnant people are treated like I treated wrapping paper?— A little discussed clause contained in several state's abortion bans does exactly that, centering the maternal body as a site of sacrifice.

The life-saving exceptions within several states’ abortion bans contain the following condition:

“the physician performs or attempts to perform the abortion in the manner which… provides the best opportunity for the unborn child to survive, unless… that manner would pose a greater risk of death to the pregnant woman or substantial and irreversible impairment of a major bodily function” (emphasis mine).

What this means is that, in order to save the life of the mother, “the physician cannot automatically proceed to terminate the pregnancy in a manner that would necessarily end the life” of the fetus. [1] The legislative language instead establishes a physician obligation to, whenever possible, end a pregnancy in a way that is less safe for the pregnant patient - at a moment when the patient's life and health are already imperiled - by requiring a physician to either perform a cesarean section or induce labor (labor induction abortion), as opposed to performing a safer, procedural abortion. (*It is important to note that any method of ending a pregnancy before a fetus is able to survive outside of the uterus will result in the death of the fetus. While procedural abortion will cause immediate fetal demise, the death of the baby following labor induction and cesarean section is prolonged. Furthermore, medication used for pain management in newborns who are unable to survive after birth often hastens death by suppressing respiratory drive. Either way, death is the result.)

Labor induction abortion “can last anywhere from five hours to three days; are extremely expensive; entail more pain, discomfort, and recovery time for the patient—similar to giving birth—than procedural abortion; and are medically contraindicated for some patients.” [2]

A cesarean section (C-section) is major surgery that puts the pregnant patient at increased danger of morbidity and mortality both during and following the procedure. [3] For patients who have had a prior cesarean birth, cesarean section “becomes riskier each time it is repeated. The risks of repeat C-sections include placenta problems such as placenta previa, blood transfusion, uterine rupture, damage to the bladder, infection, and hysterectomy.” [4] Like labor induction abortion,, cesarean section is contraindicated for some patients.

Procedural abortion is safer than labor induction abortion and cesarean section, but results in immediate fetal demise. “The evacuation phase of a procedural abortion typically takes around 5 minutes in the first trimester of pregnancy and 10-20 minutes in the second trimester.” [5]

Legislation that obligates a physician to “perform the abortion in the manner which… provides the best opportunity for the unborn child to survive” insists that, whenever possible, the physician must forgo the safest abortion method for an already imperiled pregnant patient. In so doing, the legislation treats the pregnant patient as mere wrapping, as merely a fetal container whose life, health, and bodily integrity are subordinate to that of the fetus.

This legislative requirement is an incremental step in anti-abortion lobbying groups’ goal of eliminating procedural abortion altogether, with no regard for patients’ safety. For example, the American Association of Pro-life Ob/Gyns (AAPLOG) opposes procedural abortions, even in emergencies. The group only supports labor induction abortion and cesarean sections. While AAPLOG acknowledges that “[m]any physicians are repelled by the idea of performing a cesarean section (possibly with a classical uterine incision) in order to avoid” procedural abortion, [6] the group nevertheless makes the claim that “cesarean deliveries are morally acceptable in themselves.” [7] No consideration is given to the fact that an unnecessary cesarean section does harm to the pregnant patient experiencing an obstetric emergency. Her body is mere wrapping paper. What matters is the “gift” contained within her.

“The fetal container image of women is evident in cases like these in which pregnant women are forced to undergo unwanted surgery on behalf of their fetuses, operations which physicians agree increase the risk of the woman's death. These cases sharply diverge from the general legal doctrine that individuals are not required to undergo any risk of physical harm to help another.” [8]

As I was preparing this newsletter, news broke about Kate Cox, a woman suing the State of Texas so that she can receive a medically-indicated abortion. Specifically, Cox is suing Texas so that she can receive a procedural abortion, in this case a dilation and evacuation (D&E). Texas has overlapping abortion bans, including bans on D&E procedures. Her case showcases the dangers of restricting medical procedures in the case of abortion.

Kate Cox is 20 weeks pregnant. She has been admitted to the hospital four times in the last month in distress (three times before filing her lawsuit and then once again just after filing her lawsuit), an unsustainable situation long-term. She is experiencing severe cramping, elevated glucose (a warning sign for gestational diabetes), and leaking fluid. She also has underlying health conditions. All of these factors have put Cox at increased risk of gestational hypertension, gestational diabetes, fetal macrosomia, cesarean delivery, post-operative infections, and anesthesia complications.

Her daughter in utero has received a fatal diagnosis; she has Trisomy 18, a single artery in the umbilical cord, a protrusion from the baby’s abdomen (likely an umbilical hernia), a twisted spine likely due to spina bifida, a neural tube defect, irregular growth, clubbed or “rocker-bottom” foot, intrauterine growth restriction, and irregular skull and heart development. She is expected to die before birth or just after. Should Kate Cox’s daughter die before birth, as 70% of fetuses with Trisomy 18 do, Cox will face a whole new set of medical complications.

“Continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy.” [9]

Because Kate Cox has had two prior cesarean surgeries, labor induction is contraindicated as it could cause her uterus to rupture. If forced to carry her daughter to term, Cox would have to have a cesarean section. “Yet Ms. Cox’s physicians also explained that a C-section at full term would make subsequent pregnancies higher risk and make it less likely she would be able to carry a third child in the future.” [10] Cox’s doctors have recommended a D&C.

Constant hospitalizations, severe pain, elevated health risks, fetal diagnoses, threats to her ability to have another baby, and doctors’ recommendations. The unbearable confluence of all these factors led Cox to sue Texas so that she can receive a procedural abortion. As her lawsuit states:

“Ms. Cox understands that the safest medical option to preserve her life and future fertility is a D&E abortion. If Ms. Cox is unable to receive a D&E abortion, she will receive either 1) a labor induction at term or earlier, if her baby’s heartbeat stops, or 2) a C-section at full term. Both are associated with significantly higher mortality and morbidity than abortion and both pose significant risks to her future fertility. 132. Induction of labor after C-section carries the risk of uterine rupture. In patients where risk of uterine rupture is especially high, including where they have had recent and repeat C-sections, major medical associations like ACOG recommend against induction.28 133. A C-section is major surgery that becomes risker each time it is repeated. The risks of repeat C-sections include placenta problems such as placenta previa, blood transfusion, uterine rupture, damage to the bladder, infection, and hysterectomy.”

The case of Kate Cox highlights the tangible, bodily harms inherent to restricting medical procedures in abortion bans (as well as the harm caused by bans themselves). Last week, a judge ruled in Cox's favor: “This Court further finds that a D&E abortion is the method of abortion medically necessary to preserve Ms, Cox's life, health, and future fertility, and poses far fewer risks than an induction or a C-section.” However, Texas Attorney General Ken Paxton is fighting to stop Cox from obtaining a procedural abortion and, as a result, the Texas Supreme Court has temporarily stopped Kate Cox from receiving the care she needs while the court considers the case.

Not only is it harmful to ban abortion, but it is harmful to restrict abortion procedures— especially in medical emergencies when a patient’s life is already imperiled. The legislative requirement that physicians perform emergency abortions in the manner which “provides the best opportunity for the unborn child to survive” establishes a hierarchy of value, wherein the State claims the right to do harm to the bodies of pregnant patients in the name of “life.” It establishes the pregnant person’s body as mere wrapping, which “sharply diverges from the general legal doctrine that individuals are not required to undergo any risk of physical harm to help another.” [11]

Centering the maternal body as a site of sacrifice, state laws which insist that, whenever possible, a physician must forgo the safest abortion method for an already imperiled pregnant patient, the state is wielding its power through the law to force the patient into conformity with the sexist role of utra-sacrificial mother— her bodily wellbeing be damned.

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Sacrificing the body: The little discussed clause in "life of the mother" exceptions

Legislating ultra-sacrificial motherhood

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