Pro-choice concerns and affirmative defenses for doctors under abortion ban

With the overturn of Roe v. Wade, the abortion trigger ban has taken affect in ND, however it has been stalled by injunction and has not currently been in place.

The ban outlaws abortions after six weeks. A main concern with the trigger ban has been how medical profesionals will be prosecuted if they assist in life saving abortions, as there is not a true exemption in the ban, but rather affirmative defenses.

There are defenses listed within the trigger ban which would be classified as affirmative defenses. An affirmative defense is a defense in which the defendant introduces facts or evidence that can prove they are not liable criminally or civilly. This means that doctors and health professionals are not safe from prosecution and instead must be able to prove the intent of their aid falls under the defenses legally.

“Many of the procedures and medications used to perform induced abortions in the United States are also crucial for treating spontaneous abortions (or miscarriages). There is fear among health care professionals that they will be prosecuted for performing an induced abortion while administering care for a woman experiencing a spontaneous abortion,” said Sandra K. Cesario, PhD, MS, RNC, FAAN, professor and PhD program director in the College of Nursing at Texas Woman’s University in Houston in an article by the American Journal of Nursing. She is also the president of the Association of Women’s Health, Obstetric and Neonatal Nurses.

North Dakota Century Code lays out these defenses in 12.1-31-12 Abortion – Affirmative defenses.

“The following are affirmative defenses under this section:
a. That the abortion was necessary in professional judgment and was intended to
prevent the death of the pregnant female.
b. That the abortion was to terminate a pregnancy that resulted from gross sexual
imposition, sexual imposition, sexual abuse of a ward, or incest, as those
offenses are defined in chapter 12.1-20.
c. That the individual was acting within the scope of that individual’s regulated
profession and under the direction of or at the direction of a physician.”

A large concern is that there will be hesitation amongst doctors to act in emergency situations because of the lack of vagueness of ‘professional judgment’. ND State Rep. Karla Rose Hanson has commented on this concern.

“Once North Dakota’s trigger ban goes into effect, all abortions will be illegal in our state. There are no legal exceptions – only affirmative defenses. That means a doctor could be charged with a felony for performing an abortion and the law provides the opportunity for doctors to defend themselves in court by saying – yes, I did this, but it was justified because it was done to save the life of the pregnant person or because the pregnancy was the result of rape or incest,” said Hanson, “Because of this, many doctors will hesitate to treat ectopic pregnancies and other life-threatening conditions to avoid being charged with a felony, which would derail their career.”

A doctor may make a judgment of an abortion being necessary, but the attorney general will have to agree. Hanson shared other concerns regarding patient privacy and the abortion ban as well, along with how that will affect a doctors defense.

“One major question is if the doctor can even use a patient’s private medical records in a court proceeding to prove the procedure was justified,” Hanson said.

Pro-choice politicans and citizens in the state have expressed their concerns on the uncertainty of repercussions many medical professionals are facing.

“Simply put, North Dakota’s trigger ban puts women’s lives and doctors’ careers at risk. North Dakotans deserve better,” Hanson said.