Note: This transcript has been created with a combination of machine ears and human eyes. There may be small differences between this document and the audio version, which is one of many reasons we encourage you to listen to the episode!

Dan Gorenstein: Less than a year after the Supreme Court overturned Roe v. Wade, abortion is banned in roughly a quarter of the country. 

While some states are trying to join that pack, others with bans already on the books are beginning to have second thoughts. 

Sen. Richard Brigss: It just was not right for a physician to be saving the life of a woman and to be at risk of going to prison.

DG: Lawmakers in some red states, at the urging of doctors, nurses, and hospitals, may now add exceptions to their bans.

But they’re getting blowback from anti-abortion groups branding them as traitors to the cause. 

Today, POLITICO health care reporter Alice Miranda Ollstein introduces us to a Republican lawmaker wrestling with the state ban he helped pass, and we consider how well exceptions work — or don’t — in practice.

From the Leonard Davis Institute at the University of Pennsylvania, I’m Dan Gorenstein. This is Tradeoffs.

Alice Miranda Ollstein: Tennessee state Sen. Richard Briggs woke up early last May to shocking news coming over his radio alarm clock. 

Clip:The U.S. Supreme Court appears poised to strike down Roe v. Wade, the precedent that has guaranteed a constitutional right to abortion for 50 years.

AMO: Far from celebrating, the lifelong Republican, military veteran, and devout anti-abortion Methodist went cold.

RB: I became concerned, immediately. 

AMO: Richard’s mind went to the so-called “trigger law” he voted for just four years earlier. 

RB: Which basically outlawed all abortions for any reason. 

AMO: With Roe on the way out, that total abortion ban would soon take effect in Tennessee.

Richard says when he backed that ban with no exceptions, he saw it as more of a statement of his anti-abortion values. He now admits he didn’t fully understand the details of the bill — which he never believed would become law. 

RB: Sometimes being honest gets you into trouble in politics. (laughs) But I didn’t think that Roe v. Wade would be overturned. 

AMO: Richard worked as a heart surgeon for decades in the military and a Catholic hospital in Knoxville before getting elected in 2014. A buttoned-up conservative from a staunchly Republican district, he doesn’t drink, doesn’t own a TV, and doesn’t believe in a broad right to abortion. 

RB: I make no bones about this: I’m a right-to-life physician. I don’t support abortion on demand because someone doesn’t want to be pregnant. I’m not in favor of that.

AMO: Still in his pajamas that morning, radio on, Richard began to panic.

A provision in Tennessee’s ban he helped pass made all abortions a felony, punishable by up to 15 years in prison.

To clear their names, doctors would have to convince a court after the fact that the procedure was medically necessary.

RB: Usually in the American justice system, someone who is accused is considered innocent until proven guilty. Here, this was flipped to where the physician was guilty even if he were saving a woman’s life, a mother’s life.

AMO: Richard worried doctors in his state would be prosecuted for providing life-saving care. Worse, he feared doctors would withhold that care to avoid prosecution, with disastrous results. 

RB: If we allow those women to die, it’s not just a tragedy for that woman. It’s a tragedy for her whole family. Her children will be raised without a mother. And if this is preventable, then why is the state forcing this to happen?

AMO: Over the next few months, Richard’s fears only mounted.  

His legislative assistant told him that years ago she needed emergency surgery for an ectopic pregnancy — where the fertilized egg takes root outside of the uterus. Without an abortion, she could’ve died. Doctors, nurses and hospitals warned Richard that now, with the state ban in full force, more people would be at risk. 

Yarnell Beatty: Many of our members have been afraid to deliver routine care to women who are experiencing pregnancy complications.

AMO: Yarnell Beatty is the Senior Vice President and General Counsel for the Tennessee Medical Association.

YB: Because of the possible legal jeopardy, physicians were afraid to address those patients, and so they sent them out of state. Doing so delays care, but it’s also risky. Because in transit, there could be hemorrhaging and other problems that could cause even more major medical consequences.

AMO: Yarnell told Richard the solution would be to amend Tennessee’s ban so that doctors can provide abortions to someone in a medical crisis without fear of prison.

Most of the dozen-plus states with abortion bans include an exception that protects the pregnant person’s life, although when exactly it can be used is often unclear. 

Fewer states also have exceptions for cases of rape, incest or fatal birth defects. 

Abortion rights advocates argue these exceptions are just window dressing that make bans more politically palatable, but, ultimately, fail to help.

Yet the more Richard heard about patients being turned away in medical emergencies, the more he worried that leaving the law as-is would violate his Hippocratic oath to “do no harm.” 

RB: What the state was doing was attempting to interfere in the practice of good medicine. And I think that’s where I said: Someone has to speak out on this.

AMO: Richard drafted a bill that would make several changes to the ban. 

One — it gives more precise definitions… 

RB: What a medical emergency is, what a non-viable pregnancy is, what a fatal fetal anomaly is. 

AMO: Two — the bill legalizes abortions in cases where the pregnant person’s health or life is in danger.

It lists out specific medical conditions that would qualify, like ectopic pregnancy or cancer, but also leaves room for doctors to use their best judgment.

And three — it would allow abortions in cases of fetal anomalies that are fatal.

RB: If a woman has a child that cannot survive out the womb, why should the legislature expose her to those risks?

AMO: This January, Richard rolled out his bill, as did Republicans in Idaho, Kentucky, Missouri, South Carolina, Utah, and Wisconsin.

Lawmakers in all seven states have introduced bills to add exceptions, clarify exceptions or expand existing ones.

All across the country, we’re seeing self-described “pro-life” Republicans pushing to make their state abortion bans less restrictive.

And there’s been a backlash.

Will Brewer: You know, I’m ashamed for Sen. Briggs and anybody else that admits that they, A) voted for something not reading it in the first place, and B) not ever thinking that it would go into effect. 

AMO: Will Brewer is the lead lobbyist for Tennessee Right to Life, the state’s leading anti-abortion group. 

The organization recently stripped Briggs of its endorsement, and announced to its members that he “​​can no longer be trusted” because he is working to “tear down” the state’s abortion ban. 

Will helped draft that ban back in 2019 and said it’s having exactly the effect he intended: preventing hundreds of abortions from happening every month.

WB: That’s what I set out to do, and I’m proud that we, as a state, have done that, and are saving lives.

AMO: Anti-abortion activists like Will say they would support certain narrow changes like specifying that terminating an ectopic pregnancy is legal. But they oppose Richard’s bill, arguing that without the threat of felony charges, doctors will provide far more abortions than Will thinks are necessary.

WB: This, to me, is a life and death situation. 

AMO: Richard fully expected to be attacked for sticking his neck out. But he said it stings that it’s coming from a group that has given him a 100% rating on its legislative scorecard. 

RB: I think they’ve done a lot of good things in Tennessee. But even good organizations get things wrong in my opinion. It’s sort of like the biblical: Forgive them, for they know not what they do. Forgive them, for they know, not what they say.

AMO: Richard insists that if anti-abortion groups better understood his bill and the danger of leaving the state law as-is, they’d come around. But given the blowback he’s faced, he knows his colleagues may be nervous to join him.

RB: There may be glory against the guy that jumps up first and charges to fight against something. He’s likely to get shot to be the first one, too and that’s a little bit about what happened. 

AMO: Right now, in courtrooms, in state capitols, in street demonstrations and in the press, anti-abortion lawmakers are clashing with physicians over abortion restrictions. 

With a foot in each of those worlds, Richard is testing if it’s possible to do what he feels is right by both his party and his professional calling. 

As a lawmaker, he is confident he’s representing the majority of Tennessee voters — citing polls showing overwhelming support for adding exemptions. 

As a physician, he’s driven by memories of the pregnancy-related emergencies he’s witnessed. Richard says it haunts him to think about doctors having the ability to save a patient but being too afraid to do it. 

He knows this crusade could cost him his job. But he hopes, along the way, to force people to rethink what policies they consider “pro-life.” 

RB: I just don’t see how any common sense person could not support this. I mean, how could you not support mothers? How could you not support families? Why are you risking the life of a mother to force her to deliver a child where she may die?

DG: Alice Miranda Ollstein reporting.

After the break, we talk with Alice about how well abortion ban exemptions are working where they already exist.

MIDROLL

DG: Welcome back.

We’re talking with Alice Miranda Ollstein, a health care reporter with POLITICO, about why some anti-abortion state lawmakers are trying to add exceptions to their states’ new abortion bans.

Hey, Alice.

AMO: Hi, Dan.

DG: You’ve reported that these conservative lawmakers are worried that the broad abortion bans they previously supported could be dangerous, even deadly.

So they are pushing for more exceptions as the solution. 

And, Alice, I know you’ve been looking at the handful of states that already have exemptions on the books to get a sense if they work.

So, let’s start with the basics: Do we know how many people in those states have used those exemptions since the bans took effect last summer? 

AMO: It’s hard to say for sure, Dan.

We’re only about eight months into this new era and that kind of data can take years to collect and analyze — especially at the national level. But there is some state data, and it shows that exceptions are difficult to use in practice. 

The best available data so far comes from the Society of Family Planning, a research organization that supports abortion rights.

They collected month-by-month abortion data from all 50 states and compared the number of abortions that took place in April of last year — before the Supreme Court’s ruling — to August, after many state bans took effect. 

So, what I did is I looked at places that banned all abortion but made exceptions to save the life of the mother: Alabama, Arkansas, Louisiana, Mississippi, South Dakota, Texas and Wisconsin. Each of those states went from recording a few hundred abortions per month before the ruling to zero after. 

DG: Zero abortions? Like absolutely none?

AMO: That’s right. 

Of course, we know people are still traveling out of state and ordering abortion pills online. But that data suggests people are unable to navigate the state’s exemptions. 

DG: So the little data we have suggests people are forced to seek alternatives to the exceptions even when they’re on the books. Alice, why do experts think that is? 

AMO:  So there is a fair amount of data from before Roe fell that experts are looking to to try to understand what’s going on now with exceptions. And, bottom line, it shows they are really hard to use.

Let’s start with the exemptions for survivors of rape and incest. 

Just six states have those.

And in most of them laws, like what Richard Briggs in Tennessee is proposing, require someone to file a police report.

Now data from the federal Bureau of Justice Statistics show nearly two-thirds of sexual assaults are never reported.

DG: And there are lots of reasons someone might not report their rape, right? The attacker could be a friend or family member, the victim may fear retaliation, or might just not want to relive the experience.

AMO: Exactly, Dan. 

DG: What about exemptions for fetal anomalies, medical emergencies or to save the life of the pregnant person — which a lot more states have? 

AMO: So to understand that, I talked to Katrina Kimport.

Katrina Kimport: I’m a professor with the ANSIRH Program at the University of California, San Francisco.

AMO: Last year, Katrina published a study she conducted of women from 14 states who all had abortions after 24 weeks of pregnancy. 

Even before Roe fell, a lot of states — even some blue states — banned abortions later in pregnancy but had these exemptions.

On paper, many of the women Katrina interviewed qualified for those exemptions, but she found that those who did still had to travel to states without bans to get the procedure done. 

KK: The number of honestly, heartbreaking ways that a pregnancy can go wrong are mind-blowing. And any list of exceptions is always going to fail to capture all of those ways.

AMO: Katrina interviewed women whose fetuses had a serious issue that didn’t fit any known condition.

KK: Even though every physician that this patient interacted with was clear that this pregnancy was non viable. But because it wasn’t in any medical textbooks, it wasn’t in the list of exceptions by the law.

AMO: Others told Katrina they couldn’t qualify for an abortion because their baby would be born alive — even if it would then die.

KK: And that death might happen, minutes might happen in hours, it might happen in weeks. And so they didn’t qualify for these exceptions, because what was wrong with their fetus was not lethal in utero, that they would have a live birth, that they would be able to see their baby. And then they would have to watch their baby suffer and know that their baby was going to die. 

AMO: Abortions that late in pregnancy are really rare, so Katrina’s study only covered a small number of women, Dan — less than 30. But it’s one of the few pieces of data we have, and it sheds light on some of the challenges people could face as more states consider creating exceptions. 

DG: As you say, we have limited data to go off here, but what we have suggests there can be a lot of barriers to people actually using exemptions.

Of course some do use them, and I know you spoke with a woman who went through this herself to understand the process. What did she say? 

AMO: That’s right. I talked to Ohio resident Katie May, who found out just a few days after the Supreme Court overturned Roe that her baby had no heartbeat and was unlikely to survive.

Katie May: The fear was, it was awful. 

AMO: Ohio’s trigger ban went into effect right after Roe fell, banning abortion with exceptions for fetuses without a heartbeat, for ectopic pregnancies and to protect the life and health of the mother. 

Katie qualified for an exception. But her medical team insisted she wait 10 more days — just to be sure. 

KM: My mental health was just completely deteriorating at that point. It kind of felt like an embryo that was never going to survive was more important than the risk to my life. 

AMO: 10 days later, same situation: still no heartbeat. Forty-eight hours after that, Katie had the abortion. 

KM: It was a whole ’nother wave of fear at that point, because it’s awful, like awful having to go see your dead baby on an ultrasound. It’s traumatizing. It was like nothing other.

DG: So having gone through that, Alice, what is Katie’s take on abortion exceptions? 

AMO: To an outside observer, Dan, it could look like he system worked in this case. Katie qualified for an exemption to her state’s ban, and, eventually, received the abortion her doctors recommended. But Katie told me that delay was so excruciating that she wishes she went to Pennsylvania instead for the procedure.

KM: That 12 days, you feel like a walking tomb. You’re just, like, walking around like: I am a coffin right now. You just feel so dirty. I think I showered like three times a day. It was really really awful.

AMO: Katie told me she appreciates that conservative lawmakers like Richard Briggs want to protect people’s lives by adding in these exceptions, but for her, the better solution would be just allow abortions. 

In fact, courts have blocked Ohio’s ban for the time being. And that’s the only reason Katie feels safe trying again to get pregnant.

DG: It seems unlikely that any of these conservative lawmakers are going to endorse scrapping the abortion bans altogether, Alice. 

But I am curious, what does Sen. Briggs in Tennessee think about the fact that, as best we can tell, exceptions are pretty hard to use in practice?

AMO: When I asked him, he admitted the legislation may not work as he intends — if it even passes in the first place. 

And remember, Dan, this is someone who identifies as “pro-life.” He wants it to be hard for someone to get what he calls a “frivolous abortion.” But he also feels it’s his duty to make sure doctors can save someone’s life without risking a prison sentence.

And because he wrote the bill in close consultation with state medical groups, he’s reasonably confident it will allow them to, in his words, “get back to practicing good medicine.” 

DG: Alice Miranda Ollstein, thanks so much for your reporting on this.

AMO: Sure thing, Dan.

DG: I’m Dan Gorenstein, this is Tradeoffs.