Republicans Want 12 Randos to Decide if Your Emergency Abortion Is Legal
Carter Sherman, January 13, 2023 – published article
Virginia’s proposed abortion ban could let a jury decide if an emergency abortion was really necessary.
A bill introduced Wednesday in the Virginia state legislature would ban almost all abortions after 15 weeks—and if a doctor agrees to end your pregnancy during a medical emergency, a jury of 12 random people could end up deciding whether their medical judgment was sound.
In other words, a doctor who wants to perform an emergency abortion without risking legal penalties will have to win over 12 people who likely have zero years of medical training.
Abortion is currently banned in Virginia after the start of the third trimester, except when it’s necessary to preserve a patient’s health or life. The proposed bill would not only narrow the window of time when people can get abortions, it would only permit abortions after that point in cases of rape or incest, or if the patient’s life is in danger or they’re facing “a serious risk of substantial and irreversible impairment of a major bodily function.” (Psychological and emotional risks, such as feeling like you’ll die of suicide if you can’t get an abortion, don’t count.) After Roe v. Wade’s overturning last summer, states across the country banned abortion except in cases of life endangerment. But doctors have argued that this “exception” forces them to watch as their patients inch closer and closer to death before they can perform an abortion.
“We’re waiting for patients to get sick, or get sicker, to be sick enough as to be able to intervene,” one maternal fetal medicine specialist told VICE News last year. Another OB-GYN added, “Someone can go from looking, clinically, in front of you, fine, talking to you, maybe appearing overall pretty well—and then all of a sudden their vitals can just tank and they can really get sick fast.”
Plus, some devastating fetal abnormalities are only detectable later on in pregnancy. Fetuses with those abnormalities may be deemed “incompatible with life,” meaning they will likely not make it to birth, die during birth, or die right after. Continuing with these pregnancies can be emotionally wrenching for would-be parents, and can risk the life and health of pregnant people.
The problem with these laws, doctors have told VICE News, is that politicians who lack medical training are dictating medical policy. Now, unelected people could be doing the same in Virginia.
Under current Virginia law, a doctor needs to use their “good faith clinical judgment” to determine whether a patient needs an emergency abortion. In other words, if a doctor had to defend their actions on the stand, they would just need to prove to a jury that they believed at the time that the patient was experiencing a life-threatening emergency and that abortion was the best or only form of treatment.
But under the new Virginia bill, doctors would have to use their “best clinical judgment”—meaning that they would have to show that the emergency abortion was absolutely necessary to save the patient’s life. It’s a change that, although seemingly small, could undercut doctors’ ability to do their jobs and leave them more vulnerable to prosecution.
Ban like these can make physicians afraid to help even in true emergencies . In an affidavit filed last year in a lawsuit over Ohio’s now-suspended abortion ban, one doctor warned, “I am concerned that the law’s stiff criminal penalties are deterring some physicians from providing even legal care that is medically necessary.”
The bill introduced Wednesday has just one sponsor, but Virginia Gov. Glenn Youngkin, a Republican, has said that he would support a 15-week abortion ban. Such a limit, he suggested to the Washington Post last summer, could be a compromise between Republicans and Democrats.
In a statement Wednesday, Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia, rejected that idea.
“Let’s be clear: a ban is a ban, plain and simple,” she said.