South Dakota Republican Gov. Larry Rhoden was preparing to sign three anti-abortion bills into law in Sioux Falls last month. One of the provisions redefines “abortion”, so penalties for prohibiting abortion will not apply if the death of an “unborn child” is the result of medical care provided to a pregnant woman. (Photo by Joshua Haiar/South Dakota Searchlight)
Some lawmakers in anti-abortion states are pushing to change the definition of “abortion” so that abortion bans do not apply to cases in which the death of an “unborn child” results from medical care provided to a pregnant woman.
In the four years since the U.S. Supreme Court allowed states to ban abortion, stories continue to emerge of women who had doomed pregnancies and developed life-threatening infections, had to move to another state, or even died because doctors were afraid to provide what was once considered standard care for pregnancy loss.
Thirteen states have abortion bans, and all have a medical exception that allows abortion to protect the life of the pregnant woman. Some, but not all, prohibitions also have exceptions designed to protect the woman’s health.
But patients and providers do argued in trials challenging the bans, arguing that such exceptions are too ill-defined to give doctors and hospitals the confidence to provide timely care. As a result, they say, providers refuse care until the woman’s condition has deteriorated to the point where exceptions would apply, jeopardizing her health and future fertility.
Last year, states included: Texas, Kentucky AND Tennessee has passed legislation to provide additional transparency. But confusion persists in these and other states studies have been linked abortion restrictions leading to more maternal deaths and injuries.
The latest measures, developed and promoted by national anti-abortion groups, will redefine “abortion” as intended ending the life of an “unborn child”. Supporters say it would make it easier for doctors to deal with miscarriages, ectopic pregnancies and other pregnancy-related emergencies.
“No one wants to see a doctor hesitate or pause and further put a mother’s life at risk,” Ingrid Duran, director of state legislation at the National Right to Life Committee, which has advocated for all the measures, said in a written statement. “Therefore, providing clearer language when defining terms may be beneficial.”
But reproductive rights advocates and many obstetricians and gynecologists say the real purpose of the bills is to strengthen abortion bans, which are fundamentally unpopular, even in states with full bansand is subject to legal challenge in many states. They argue that the modern measures are still too vague because they are based on the intentions of individual doctors, and many of the same procedures and drugs used in abortions are used to treat miscarriages.
They also argue that language in the laws could confer rights on embryos, thereby making some infertility treatments illegal.
“If you try to define what is and isn’t an abortion and create really specific, narrow guidelines, it could really unintentionally classify some pregnancy-related procedures as abortion care and therefore not medically necessary under the law,” said Elias Schmidt, state legal counsel for the Center for Reproductive Rights, an advocacy group.
First up is South Dakota
in March South Dakota became the first state to enact such a law. His measure stipulates that the state’s abortion ban applies only to “the intentional termination of the life of a human being in the uterus,” and not to treatment that results in the “accidental or unintentional death of an unborn child,” treatment to terminate a miscarriage or ectopic pregnancy, “removal of a deceased unborn child from the uterus,” or a medical procedure to save a fetus.
To the concern of infertility treatment advocates, the law also defines a “human being” as “an individual living member of the species Homo sapiens, including an unborn human being throughout the entire embryonic and fetal period, from fertilization through full pregnancy.”
Similar bill introduced in Missouri defines abortion as “the act of using or prescribing any instrument, device, drug, medicine or any other substance or agent with the intent to destroy the life of the embryo or fetus in the mother’s womb.” It expressly excludes from this definition the management of miscarriage and the treatment of ectopic pregnancy.
AND Bill Utah, where abortion is still legal until the 18th week of pregnancy, would regulate how an abortion procedure is recorded in a patient’s chart, distinguishing between elective abortion and medically indicated abortion. It defines the latter as abortion “for the purpose of removing a deceased fetus,” terminating an ectopic pregnancy, or avoiding death or “a serious physical risk of significant impairment of the woman’s major bodily functions.”
The Wisconsin Legislature recently voted to reject the proposal similar bill during the previous legislative session.
Blame the confusion
Anti-abortion groups blame doctors and abortion rights advocates for creating confusion over medical exceptions to abortion bans, insisting that it is clear what is a medically indicated abortion and what is a purely elective one.
“The fact that we’re in a place where states actually have to define (abortion) is because my field, particularly (the American College of Obstetricians and Gynecologists), has not made it clear,” said Dr. Susan Bane, vice president of the board of directors of the Pro-Life American Association of Obstetricians and Gynecologists, which represents about 7,500 physicians and other medical specialists who oppose abortion.
The organization launched approx medical education AND message campaign arguing that abortion bans do not prevent necessary health care.
According to Bane, the main difference between an induced abortion and a medically indicated termination of pregnancy is that in the former, “at the end of everything you do, you want to have a dead baby.”
The South Dakota bill’s author, state Rep. Leslie Heinemann, said he was sponsoring the measure to quell some criticism about ill-defined medical exceptions in his state’s ban. He admitted that he had underestimated how complex it would be to codify the law when care was needed in the event of a miscarriage.
“Even the medical community has had difficulty defining some of the issues,” he said.
The version of the bill that went into effect lists only a few conditions and leaves the rest up to doctors, who must make an “appropriate and reasonable medical assessment that performing an abortion is necessary to preserve the life of the pregnant woman” to avoid criminal charges.
Heinemann insisted that his solution would not restrict infertility treatment or birth control. But reproductive health experts and lawyers say defining the beginning of human life as “the entire embryonic and fetal life from fertilization to full pregnancy” could have this effect.
“Building personhood language into state law really raises concerns about access to contraception and access to in vitro fertilization,” said Kimya Forouzan, chief state policy adviser at the Guttmacher Institute, a think tank that supports abortion rights.
“As the number of personhood provisions in state codes increases, the question becomes: At what point do we acknowledge the rights of an individual and place those rights above the individual?”
Dr. Amy Kelley, an obstetrician-gynecologist from Sioux Falls, South Dakota, who served as president of the South Dakota chapter of the American College of Obstetricians and Gynecologists from 2023 to 2025, said lawmakers ignored her and other doctors’ concerns that the revised abortion ban was still too vague.
“The whole point of medicine is to prevent people from getting to the brink of death, right? So do they expect us to wait for it?” Kelley said. “It’s still not very clear, and the definition of miscarriage and ectopia is also not what we expected. It’s just not helpful.”
Kelley said that since her state banned abortions, she often waits longer to terminate pregnancies for medical reasons and sometimes sends patients out of state for treatment. She noted that the modern law does not clarify what level of risk to a pregnant woman justifies terminating a pregnancy.
“They want to say that elective abortions are not allowed. But what do they consider elective?” she said. “Let’s say they have heart disease and the risk of dying during pregnancy is 40%. Is it an elective abortion because the risk is not 100%?”
Stateline reporter Sofia Resnick can be reached at: sresnick@stateline.org
This story was originally produced by state linewhich is part of States Newsroom, a nonprofit news network that includes the Ohio Capital Journal and is supported by grants and a coalition of donors as a 501c(3) public charity.
