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Thursday, August 11, 2022
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A letter was published this past week which argued that the OU statement on the recent Supreme Court decision in Dobbs was factually incorrect (“Check the Facts on Abortion Laws,” June 30, 2022). The writer took issue with the OU statement because it stated:

“Similarly, we cannot support legislation that does not limit abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.”

The writer argues that the statement is incorrect because the Mississippi statute does provide an exception for the safety of the mother’s life. A simple reading of that statute, as well as other similar statutes from other states, shows the writer to be incorrect in their analysis.

The reader is encouraged to examine the statute for themselves. When they do so, they will find that the problem with the Mississippi statute, as well as with similar statutes in other states, is at least twofold.

First, it is vague and overly burdensome for physicians who are now concerned about their medical license and possible prosecution from the State. According to the language of the statute, a doctor would not be in violation if the procedure was carried out “to prevent the death of a pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.”

Unfortunately, the statute does not expound further on this language. Under the law as it is written, there is no guidance as to what constitutes “preventing a death or preventing a serious risk.” At what point and with what odds is the doctor to make their assessment? If a woman were found to have an ectopic pregnancy, must the doctor wait until such time as a rupture of the fallopian tubes has occurred? Until the patient has gone into shock due to blood loss or infection? The statute gives no direction and it is left to local law enforcement, prosecutors and the courts to decide. That is not a good way to practice medicine.

This is not mere armchair speculation. This is the question that medical professionals are now dealing with in states such as Texas and Mississippi. In an article published by the New England Journal of Medicine on June 22, 2022, 25 clinicians from Texas were interviewed about how they must now practice medicine following the passing of SB8, the Texas version of the anti-abortion statute. Almost all have expressed that they are either turning away patients or are being much more hesitant than is medically preferable because they are now concerned about legal ramifications due to second-guessing by the State.

The statute also requires that the doctor declare in writing, under penalty of perjury, that the medical procedure was necessary, to the best of that person’s reasonable medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. The doctor must provide in that document the medical condition of the woman, and they must “assertedly” address the medical rationale for the conclusion that the medical procedure was necessary. The doctor must then place the written documentation in the woman’s medical records.

In addition to interfering with the calculation of medical decisions made by medical professionals, the Mississippi statute codifies a violation of the law as a felony punishable by a fine of up to $100,000, up to 10 years in prison, or both. Doctors have already stated on the record that they are very concerned that their judgment could be second-guessed and that they would be exposed to criminal charges and open to liability if they are charged with a violation of the statute. To add to the situation, medical malpractice insurance carriers have already given doctors notice that they will not cover costs associated with such issues.

It should be noted that if a crime is suspected, the state can access these medical records to “investigate” the need for the procedure and the doctor’s rationale. This could be the records of the patient or the doctor. If the former, the state now has access to the patient’s entire medical history, not just the part related to the issue at hand. If the latter, if the doctor is being investigated for committing a crime, the state can now review all the doctor’s other patient records. In other words, there is no longer a right to privacy.

The second problem with the statute, as per the OU statement, is that it does not take into account the mental health of the mother. In a somewhat connected way, the statute also fails to take into account the myriad other reasons why an abortion might be advisable or necessary but where there could be a fetal heartbeat and the life of the mother is not at risk, such as anencephaly, Meckel-Gruber Syndrome, Pentalogy of Cantrell, Potter’s Syndrome or Thanatophoric Dysplasia. Under such circumstances, where halacha may very well either allow or require termination of the pregnancy, a doctor would find themselves in violation of the statute.

The issue of mental health and/or other medical issues was not omitted from the statute. It was purposefully left out to exclude such scenarios, to make them illegal. This can be seen from the debates that occurred in the Mississippi legislature and the public forum prior to the enacting of the law.

None of this is to say that Judaism is in favor of the colorfully titled “abortion on demand.” Far from it. But halacha has long understood the importance of mental health and relied upon the expertise of medical professionals. It is important for us all to understand that contrary to the claims of the anti-abortion camp, neither Roe nor Casey permitted “abortion on demand.” Both cases correctly gave the states the latitude to make decisions on restrictions for abortions either by trimester under Roe, or by viability under Casey as they see fit.

The problem with the ruling in Dobbs is that it takes away the Constitutional right to privacy, to allow patients and doctors (with the input and counsel of the person’s religious authority) to determine the best course of action for the patient and the “unborn human.” Instead, the State now gets to determine the course of medical treatment and has access to the formerly private medical history of individuals. This is an extremely dangerous situation.

Rabbi Benjamin Kelsen, Esq.
Teaneck
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