Abortion Disorientation

Abstract

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do people know what it means? Not only do law and medicine define it differently, but state legislatures have codified wildly different definitions of abortion across jurisdictions. This Article exposes inherent ambiguities at the boundaries of the term, particularly as it intersects with other categories of reproductive health care often viewed as separate, like pregnancy loss and ectopic pregnancy. By juxtaposing statutory text with real people’s experiences of being denied care in states with abortion bans, this Article reveals how those ambiguities cause tragic results.

This Article’s analysis also tracks how antiabortion legislatures have responded to the tragedies of their own making by changing the definition of abortion. Thirteen abortion-hostile states have changed the definition of abortion since Dobbs, eleven of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, or molar pregnancy. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights.

The findings from this Article have a variety of normative implications. First, they demonstrate that “abortion” is an ambiguous term that lacks a fixed meaning. Given that many abortion bans and the long-unenforced Comstock Act leave the term undefined, courts will need to consider canons of construction, context, and history to resolve the term’s ambiguity. Second, the findings strongly support the conclusion that state abortion definitions and ban exceptions are unconstitutionally vague. This analysis cuts against a predominate antiabortion narrative that the laws are clear, yet doctors are willfully or unintentionally misinterpreting them. Finally, the findings underscore how Dobbs created an unworkable framework that moved the complicated experience of pregnancy from the medical to the legal domain, strengthening calls to overturn the decision.

Keywords: Abortion, Pregnancy Loss, Reproductive Healthcare, Workability, Stare Decisis, Reproductive Justice, Reproductive Rights, Bioethics, Health Law, Gender and the Law, Women’s Health, Gender Equity