On^[a][b][c] May 2, 2022, an unprecedented, leaked U.S. Supreme Court opinion draft signaled that abortion rights were at risk. The 98-page document indicated that the court majority believed “Roe and Casey must be overruled,” and that abortion laws should be left to their legislators to decide. When the official decision was handed down on June 24, 2022, outrage was plentiful, but few were truly shocked.

Dobbs v. Jackson, was a Mississippi case whose central issue was whether the state’s Gestational Age Act is constitutional. The Act prohibited abortions past fifteen weeks gestation except in cases of medical emergency, “or in the case of a severe fetal abnormality.”^[1]

As an abortion historian, I’ve explored the concept of legal vagueness, and there is plenty of that in this Act. Calculating gestational age is not the same as measuring height, weight, or even age. In fact, an OB-GYN 101 course module in the Johns Hopkins School of Medicine states: “If everyone had normal, regular periods, every 28 days, and could remember exactly when their last period was, and ovulation always occurred on day #14 of the menstrual cycle, then gestational age determination would be easy…”^[2] If gestational age was truly measurable, there wouldn’t be so many methods to calculate it. The number of ways to calculate gestational age suggest it cannot be determined without a margin of error. Would a physician who judged a pregnancy to be at 14 weeks gestational age, who performed an abortion, be denied due process because another physician estimated the gestational age to be sixteen weeks? Or fifteen weeks? 11 days can be the detail that defines whether an abortion is legal or illegal under this Act.

INSERT EXAMPLE ABOUT MISCARRIAGE/ABORTION/SEPSIS

Given the risks associated with pregnancy and delivery in the United States, taking away federal protections to terminate pregnancies is tone deaf, and will also have disastrous consequences. For a court claiming its ruling is consistent with protecting life, its cavalier attitude towards women’s health and safety is decidedly telling.

Aside from vagueness in calculating gestational age, there is also vagueness in determining exceptions, like what constitutes a “fetal abnormality.”^[d] In the 1960s, two major incidents prompted some medical professionals and members of the public to demand access to more liberal abortion laws: the Thalidomide tragedy and the Rubella outbreak. In the Thalidomide tragedy, which affected primarily Europe, Americans witnessed the unfolding of a pharmaceutical disaster that resulted in over 10,000 children born with Thalidomide-related disabilities—particularly phocomelia, a congenital malformation of the limbs. Also in the 1960s, rubella outbreaks occurred throughout the globe—ultimately landing in California around 1964.

While rubella itself is a mild disease—often just a rash and fever—for pregnant women, exposure to the rubella virus can result in Congenital Rubella Syndrome, or CRS, in the fetus.

When the rubella epidemic hit California with full force in 1965, physicians and hospital therapeutic abortion committees were uneven in their treatment of rubella-related abortion requests.^[3] In an examination of Bay area hospitals, three performed abortions for patients exposed to rubella in the first trimester for fetal reasons; while some of the other hospitals only performed therapeutic abortions following a rubella diagnosis if the mother appeared to have psychiatric reasons to justify it (like suicidal tendencies).^[4] Other hospitals just considered each case individually. Ultimately, this meant that women were not always able to get a legal abortion on the grounds of fetal abnormality. It depended on her physician, the hospital, and how her case was presented to the therapeutic abortion committee.

 In the aftermath of the rubella epidemic, California’s governor, Ronald Reagan, signed the Therapeutic Abortion Act (TAA), to clarify abortion law and align it with current medical practice. In an early draft of the TAA, abortions were permissible if “there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother; there is substantial risk that the child would be born with grave physical or mental defect; [or if] the pregnancy resulted from rape or incest.”^[5] Ironically, the provision related to “grave physical or mental defect” was removed from the final version even though the rubella epidemic was in recent memory. Nevertheless, one of the main problems that plagued hospital therapeutic abortions and their committees: inequity.^[6] 

        Throughout the twentieth century, legal, therapeutic abortions were often easiest for white women of means to acquire. Even after the TAA, poor women and women of color still relied heavily on illegal abortions. In a 1970 report to the California State Legislature, the Bureau of Maternal and Child Health found that nonwhite women underwent illegal abortions at a rate of 313 per 1,000 conceptions, while white women underwent illegal abortions at a rate of 103 per 1,000. 98% of the abortions performed on nonwhite women were illegal.^[7] When we look at data for those who acquired therapeutic abortions from 1967 through 1969, between 85.8% and 91% of all therapeutic abortion recipients were white women, most of these patients used insurance or private payment, and less than 15% of these abortions were performed in county hospitals—meaning most were performed at private hospitals.^[8]

In the 1969 case People v. Belous, a San Diego physician who was convicted of abortion and conspiracy to commit abortion in 1967, appealed, on the grounds thathe believed the woman’s life was in danger. He referred her to an abortionist to save her life. Belous feared the young woman would resort to “butchery” in Tijuana.

In their ruling the California Supreme Court took issue with the clause “necessary to preserve” in the pre-TAA abortion statute. The court stated:

The problem caused by the vagueness of the statute is accentuated because… the doctor is… delegated the duty to determine whether a pregnant woman has the right to an abortion and the physician acts at his peril if he determines that the woman is entitled to an abortion. He is subject to prosecution for a felony and to deprivation of his right to practice medicine if his decision is wrong. Rather than being impartial, the physician has a ‘direct, personal, substantial, pecuniary interest in reaching a conclusion’ that the woman should not have an abortion… The inevitable effect of such delegation may be to deprive a woman of an abortion when…she would be entitled to such an operation, because the state…has skewed the penalties in one direction: no criminal penalties are imposed where the doctor refused to perform a necessary operation, even if the woman should in fact die because the operation was not performed… A woman whose life is at stake may be as effectively condemned to death as if the law flatly prohibited all abortions.^[9]

This also holds true for the Mississippi Gestational Age Act. In the 1950s and 1960s, California attempted to change their abortion laws. Instead, they bureaucratized a medical decision best left to patients and their own medical providers. In crafting an abortion law that limits legal abortion to only certain criteria, physicians will be tasked with determining whether their patients fit these narrow categories. As physicians force themselves to see whether their patients’ realities fit into the small boxes uneducated legislators created, women will be the ones who suffer the consequences.