Asked to clear up abortion bans, GOP leaders blame doctors and misinformation for the confusion

NASHVILLE, Tenn. — In Republican-led states across the U.S., conservative legislators are refusing to reevaluate abortion bans — even as doctors and patients insist the laws’ exceptions are dangerously unclear, resulting in denied treatment to some pregnant women in need.

Instead, GOP leaders accuse abortion rights advocates of deliberately spreading misinformation and doctors of intentionally denying services in an effort to undercut the bans and make a political point. At the same time, however, some states are taking steps that they say will provide more clarity about when abortions can be legally performed.

The Republican-controlled South Dakota Legislature wants to create a video in which medical experts — and the state’s attorneys — would explain to doctors and patients when abortions can be legally performed. The measure was passed last month and is now awaiting the signature of Republican Gov. Kristi Noem, who has indicated she will sign it.

The first-in-the-nation idea is wholeheartedly supported by SBA Pro-Life, one of the country’s largest anti-abortion groups, which says the video will help to combat “confusion caused by the abortion industry.”

“South Dakota is showing the rest of the nation how to protect women’s lives from the misinformation surrounding abortion laws,” said the organization’s public affairs director in South Dakota, Kelsey Pritchard.

Oklahoma and Kentucky are also taking steps to clarify their abortion bans, though in both states the attorneys general, not physicians, are the ones dictating the terms.

In Oklahoma, the AG sent out a memo in 2022 informing prosecutors and police that doctors should have “substantial leeway” to provide certain abortions. Last year, the office added that patients don’t have to be “septic, bleeding profusely, or otherwise close to death” — but reiterated a past warning that doctors should be prosecuted if there’s evidence they violated the law by providing an abortion when a woman’s life wasn’t actually in danger.

Kentucky’s attorney general has stated that miscarriages and ectopic pregnancies — when a fertilized egg grows outside the uterus — are both exempted from the state’s abortion ban, but has been silent on the majority of other pregnancy complications that physicians and patients have pointed out.

Since the U.S. Supreme Court overturned the constitutional right to abortion in 2022, states have been free to enact their own restrictions. South Dakota is among the 14 that ban abortion at all stages of pregnancy. The law does allow an abortion exception to save the life of the mother, but like similar statutes in other states, it does not clearly define which pregnancy complications are considered life-threatening.

State Republican Rep. Taylor Rehfeldt, a nurse anesthetist, said she decided to propose the informational video after hearing from physicians about the ongoing confusion. She said the video offered the best solution because any attempt to tweak the abortion ban itself would provoke strong disagreement among her GOP colleagues.

It remains to be seen how much help the video will be to patients and doctors, however. It’s not expected to specifically list pregnancy complications that would legally qualify women for abortions, and it’s unclear if it will contain a legal disclaimer warning that anyone who watches the video may still face potential criminal charges.

“It’s not going to deal with hard calls,” said Greer Donley, an associate professor at the University of Pittsburgh School of Law who is an expert on abortion law. “They actually don’t want to deal with the hard calls because their movement is not sure … how those hard calls should be resolved.”

South Dakota Republican state Sen. Erin Tobin, one of the measure’s proponents, acknowledged to a Senate panel last month that the video will not contain specific examples.

“That’s the problem with health care, is that there are so many different circumstances, that you have to allow doctors discretion,” Tobin said.

As some states mull how to clarify — without weakening — their abortion bans, abortion rights advocates in several states continue to challenge the bans with lawsuits.

Twenty Texas women denied abortions are suing the state seeking clarification, while advocates filed a lawsuit in Tennessee arguing that the state ban’s vaguely defined exceptions put pregnant women’s lives at risk.