Misreading Medicine: Statutory Prohibitions of Abortion for Disability.

Abstract

Abortion prohibitions in some states include carve-outs based on the medical condition of either the mother or the fetus. These carve-outs, however, may be couched in limiting language structured by legislators rather than in language understandable in the context of medical care. In circumstances where legislative bodies fail to adequately incorporate medical professionals in the drafting of medical laws, the resulting vagueness or ambiguity may lead to a lack of utility or viability. This paper considers the consequences of such legislative misreading of medicine. It does so with a particular example, Utah's abortion trigger law, 2020 Senate Bill 174 (S.B. 174). S.B. 174 was enacted in 2020 (currently enjoined pending the outcome of Planned Parenthood Association of Utah v. State of Utah) and includes an exception for serious fetal anomaly-in other words, disability. While Utah is not alone in its inclusion of a disability exception for abortion, S.B. 174 is unique in the language it uses to carve out this exception: the law requires that the fetus has a "uniformly diagnosable and uniformly lethal" defect. This article explores the medical-legal mismatch in S.B. 174 through an analysis of the statute's legislative history and its language, an academic and legal database review, and an application of the statutory language to multiple serious genetic diagnoses. In doing so, this paper unpacks just how mismatched these terms are and reveals the massive gap the law will leave between the legal consequences and the medical realities of abortion.