In Dobbs v. Jackson, the U.S. Supreme Court ruled that the Constitution does not confer a right to abortion. Instead, regulatory authority has been returned to individual states. A fragmented legal landscape has resulted, where laws vary dramatically—and often confusingly—across jurisdictions. Healthcare providers, patients, and policymakers must now ask: What counts as an abortion?
This question is not merely academic. Confusion over abortion restrictions has reportedly led to delays and denials of care in cases involving miscarriage, ectopic pregnancy, and other complications. Some hospitals have allegedly withheld treatment, fearing that providing care might violate unclear or restrictive laws. Media outlets like ProPublica have documented several alleged instances and legal scholars have flagged similar cases following Dobbs.
Granted, some commentators argue that withholding care in these cases is simply malpractice. But one cannot deny that ambiguity on “abortion” contributes to confusion and risk. Ambiguity on “abortion,” moreover, is not limited to statutory law. The medical community also lacks a clear, canonical definition. Whether one works from within law or medicine, inconsistent terminology will undermine efforts to produce effective discourse and clear policy.
Six Points of Disagreement in U.S. Statutory Law
Regarding legal definitions of “abortion,” U.S. states’ statutory laws diverge in at least six major ways, raising six questions.
1.What is Pregnancy?
Many state laws define abortion as the “termination of pregnancy,” but states differ in how they define “pregnancy” itself. Some claim pregnancy begins at conception; others, at implantation. Thus, an intervention that prevents implantation may be deemed contraceptive in one state and abortive in another.
2. Does Prescribing Abortion Medication Count?
Some jurisdictions consider the act of prescribing abortion medication (such as mifepristone) to be equivalent to performing an abortion. Others do not. So, providers who prescribe abortion medication may be said to be performing an abortion in some states, but not others.
3. Must Pregnancy Actually End?
Some states define “abortion” as “an act that terminates pregnancy.” Others define “abortion” as an act performed “with the intent to terminate pregnancy.” The latter type of act may fail, however, since someone may act “with an intent to terminate pregnancy” and fail to do so. Thus, there are disputes over whether abortion must successfully end pregnancy.
4. Is the Intention to End Fetal Life Required?
Some states say abortion requires an intention to end fetal life. Others define “abortion” more broadly—as any act that terminates pregnancy without certain intentions (like preserving fetal life or treating ectopic pregnancy). State laws diverge, therefore, on the question of which intention(s) render an act abortive or non-abortive.
5. Does Knowledge of Harm Matter?
Some states say that abortion only occurs if the provider knows that their action will likely result in fetal harm. For others, abortion may occur whether the provider knows their act will have this effect or not. In the latter case, medical interventions may count as “abortions” even when providers are unaware that their actions pose a threat to an embryo or fetus.
6. Does Knowledge of Pregnancy Matter?
Lastly, some states define “abortion” as an act performed on a patient “known to be pregnant.” Others say abortion includes acts that terminate “clinically diagnosable” pregnancies. Thus, in principle, whether the provider knows the patient is pregnant may affect whether an abortion occurs, legally speaking.
Are Legislators to Blame?
One might respond to the above ambiguities by arguing that legislators are solely responsible for any confusion over “abortion.” Perhaps there would be no real confusion, were legislators to adopt the medical definition of “abortion.” The problem is that there is no settled “medical definition” of “abortion.”
To illustrate briefly, the American College of Obstetricians and Gynecologists (ACOG) equates “abortion” with “induced abortion” and defines “induced abortion” as “an intervention intended to terminate a pregnancy so that it does not result in a live birth.” On this definition, an intention to prevent live birth separates abortive acts from non-abortive acts. By contrast, Williams Obstetrics defines “abortion” as “the spontaneous or induced termination of pregnancy before fetal viability.” Here, there is no mention of intention. Unlike ACOG, moreover, Williams Obstetrics restricts abortion to previable stages only. So, by definition, abortion cannot occur after viability (whereas, on ACOG’s definition, it clearly can).
Next, the Merriam-Webster Medical Dictionary defines abortion as “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” Intention and viability are not mentioned here. Rather, a specific outcome is mentioned: the death of the fetus. That death occurs is not included within ACOG’s definition. So, those definitions refer to different types of actions. Nor is death mentioned by Williams Obstetrics, even though it is easy to foresee that death will occur when pregnancy is terminated before viability.
Granted, these are just three short examples. But they suggest that even within the medical community, “abortion” is defined inconsistently, whether in terms of intention, gestational age, or outcome. If the medical community lacks a clear, canonical definition, it is unreasonable to fault legislators alone for confusion over terminology. Further, if legal and medical experts lack clarity, then it seems even more unreasonable to criticize laypeople for disagreement over the meaning of “abortion.”
The Road to Clarity
Clear, effective policy and discourse requires that ambiguities surrounding “abortion” be resolved. Providing well-reasoned answers to the six definitional questions identified above may be a good starting place. Who is best positioned to answer these questions is debatable. One could argue that legislators and philosophers should leave medical experts alone when it comes to defining “abortion.” This suggestion is deeply impractical, however.
Privileging one field or discipline over all others ignores the complexity of debates over abortion. For better or worse, legal, medical, ethical, and philosophical dimensions of abortion policy are deeply entangled. Thus, an interdisciplinary approach to resolving confusion surrounding “abortion” is not only warranted, but necessary. As such, rather than engage in territorial disputes over the meaning of “abortion,” legal scholars, medical experts, philosophers, and policymakers must work together in good faith to develop clear, effective policy. One could easily imagine organizations like the Uniform Law Commission or National Academies of Sciences, Engineering, and Medicine attempting this.
Of course, one may worry that since abortion is a politically fraught topic, any nonpartisan quest for clarity is unlikely to succeed. This concern—and the underlying resistance to collaboration to which it points—misses the point that clarifying the referent of “abortion” does not require resolving deep moral disagreements. What clarity on “abortion” can do, however, is reduce preventable harm, confusion, and legal uncertainty. And this is an outcome that should appeal to everyone, regardless of their stance on the permissibility of abortion.
If readers are interested in taking a deeper look at these issues, I invite them to consider my recent essay published at Theoretical Medicine and Bioethics, titled, “Defining ‘Abortion’: A Call for Clarity.”
Nicholas Colgrove, PhD is an assistant professor within the school of public health at Augusta University.