Doctors diagnosed her with acute severe sepsis, meaning that the second abortion pill, which causes contractions and bleeding to expel a dead embryo after he or she is suffocated by the first pill, had failed to remove all of her dead twins’ bodies, and the dead tissue left behind in her uterus was causing an infection. The standard treatment is a D&C, or dilation and curettage, in which a doctor uses surgical implements to empty the uterus. A D&C can also be used as a method of elective abortion that kills living embryos and removes them from the uterus. But importantly, that’s not what was under consideration in Amber’s case. Her twins were already dead; part of their dead bodies remained in her uterus and was causing an infection, and the dead tissue needed to be removed in order to save Amber’s life.

Doctors discussed performing a D&C multiple times, and noted that Amber’s condition was continuing to worsen, but they did not actually get her into surgery until 20 hours after she arrived at the hospital. By then, her condition had deteriorated so much that she died on the operating table.

Georgia’s maternal mortality review committee, a committee of experts that investigates maternal deaths with the goal of advising on policies to reduce the maternal mortality rate, investigated Amber’s 2022 death this summer (in line with their usual lag time) and found that her death was “preventable,” that the hospital’s delay in performing the D&C had a “large” impact on her outcome, and that there is a “good chance” that if doctors had performed the D&C earlier she would have survived. ProPublica heavily implies that the delay in care that caused Amber’s death was due to doctors being worried that they would be prosecuted for performing the D&C because Georgia’s abortion law’s life of the mother exception didn’t make it clear whether that was allowed. Let’s look at whether they’re right.

Estimated reading time: 11 minutes

Why Did the Hospital Delay Care?

Throughout the article, ProPublica treats it as a near certainty that the reason doctors delayed performing a D&C was because of Georgia’s abortion law. The heavy implication starts with the title—”Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable”—and is repeated too many times to list throughout the piece.

But ProPublica provides no slightest sliver of evidence that the doctors were worried about being prosecuted under Georgia’s abortion law, or that the abortion law was why they delayed care. In fact, buried more than fifty paragraphs into the article, they explicitly admit that they couldn’t find any such evidence:

“It is not clear from the records available why doctors waited to provide a D&C to Thurman, though the summary report shows they discussed the procedure at least twice in the hours before they finally did.”

Not only is there zero evidence to suggest that the reason doctors delayed care was concern about being prosecuted under Georgia’s law, there’s some initial evidence that suggests another reason. ProPublica reports, “After reviewing Thurman’s case, the committee highlighted [the hospital’s] ‘lack of policies/procedures in place to evacuate uterus immediately’ and recommended all hospitals implement policies ‘to treat a septic abortion on an ongoing basis.’” So the maternal mortality review committee found that the hospital did not have policies and procedures in place to perform a D&C immediately in cases of sepsis. That’s a big problem, but a longstanding one, not one caused by Georgia’s abortion law, which had taken effect less than a month earlier.

What Does the Law Say?

But regardless of what was or wasn’t going through Amber’s doctors’ minds, ProPublica also alleges that Georgia’s law doesn’t make it clear whether performing a D&C to remove infected tissue left behind by an abortion is permitted, such that it would be reasonable for doctors to be worried about being prosecuted if they performed it. It is absolutely possible for pro-life laws to be written unclearly; that’s a danger pro-life advocates and legislators need to take seriously and take careful steps to avoid. But it’s not what happened here. Georgia’s law is stunningly and redundantly clear in permitting a D&C in a case like Amber’s.

The ProPublica article repeatedly claims that Georgia’s law makes D&Cs illegal, with few exceptions. That’s blatantly false. The way the law is written, it does not prohibit D&Cs and then carve out a few exceptions where they’re permitted—it doesn’t even mention D&Cs by name. It prohibits “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child” and then carves out exceptions where that is permitted. D&Cs can be used to terminate a pregnancy and kill an unborn child, but they can also be used for many other medical purposes, including some situations where there is no pregnancy involved at all. D&Cs used for purposes other than to terminate a pregnancy in a way that kills an unborn child aren’t carved out of Georgia’s law as narrow exceptions—they never come up in the law in the first place.

There are at least three clauses in Georgia’s abortion law that each make it extremely clear that the law permitted performing an immediate D&C on Amber when she arrived at the hospital.

1. Georgia’s law has an exception for medical emergencies: It explicitly permits abortion when “[a] physician determines, in reasonable medical judgment, that a medical emergency exists,” where medical emergency is defined as “a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” Amber clearly met the threshold.
2. But we don’t even need the medical emergency exception to show that performing an immediate D&C on Amber would have been legal. Georgia’s law only forbids abortions when the unborn child “has been determined to have…a detectable human heartbeat.” Amber’s twins had already been killed by the abortion pill several days prior. The parts of their dead bodies that remained in her uterus did not have a heartbeat.
3. And as it turns out, even without the heartbeat provision or the medical emergency exception, Amber’s D&C would still be clearly legal. Because what the Georgia law regulates in the first place is “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child.” Procedures that will not cause the death of an unborn child are not prohibited by Georgia’s law, even if there is a fetal heartbeat and no medical emergency. And performing a D&C on Amber would have had zero chance of causing the death of Amber’s twins, because they were already dead.

ProPublica provides no evidence that Amber’s doctors were worried based on the wording of Georgia’s law that performing a D&C on her was illegal. But even if they had been, their worry would not have been reasonable. The law is extremely, redundantly clear that it permits a D&C in cases like Amber’s.

A More Complicated Pro-Choice Argument

What’s the strongest possible pro-choice argument here? I’m going to take a deep dive into steel-manning it as much as I can, because that’s what we do at ERI. But (spoiler alert) it still fails, because of the same points I talked about in the last section.

As ProPublica points out, Georgia’s law explicitly caveats that “removing a dead unborn child caused by spontaneous abortion [miscarriage]” doesn’t count as an abortion, but does not explicitly caveat that removing a dead unborn child caused by induced abortion doesn’t count as an abortion. The legal principle of Expressio Unius Est Exclusio Alterius (I’ll call it Expressio Unius for short) says that “[w]hen something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded” (source). That means that if a law explicitly states some exceptions and doesn’t indicate that there are any other exceptions, that can be interpreted to imply that there aren’t any other exceptions. For example, if the text of a law says, “As used in this law, the term ‘puppy’ means a dog who is less than two years old; provided, however, that any such animal shall not be considered a puppy if it weighs more than 80 pounds,” the mention of 80-plus-pound dogs, without mentioning or alluding to any other exceptions, is interpreted to mean that there are no other exceptions, and that the word “puppy” as used in the law applies to every dog less than two years old and less than 80 pounds.

Pro-choice people have argued that Georgia’s law could be interpreted similarly to my puppy law example. They say that because of Expressio Unius, explicitly excluding unborn children who already died from miscarriage without explicitly excluding unborn children who already died from induced abortion is tantamount to including unborn children who died from induced abortion. If they were right, then performing a D&C on Amber would count as an abortion under Georgia’s definition.

There are two answers to their argument. For one thing, as I argued in #1 and #2 in the last section, even if Amber’s D&C counted as an abortion by Georgia’s definition, it would still be redundantly legal: because Georgia’s law says abortion is legal whenever there isn’t a fetal heartbeat (there wasn’t), and abortion is legal whenever there is reasonable medical judgment that there’s a medical emergency (there was).

But for another thing, Expressio Unius doesn’t mean Amber’s D&C could count as an abortion under Georgia’s definition. As I argued in #3 in the last section, Georgia’s base definition of abortion already excluded removing unborn children who have already died from either miscarriage or induced abortion, even before stating any exceptions. So it isn’t like the puppy law example I gave earlier. It’s more like a law that says, “As used in this law, the term “puppy” means a dog who is less than two years old; provided, however, that any such animal shall not be considered a puppy if it is a Siamese cat.” That’s a weird way to write a law, because it’s redundant: of course Siamese cats don’t count as puppies, because you’ve already defined puppies as dogs, and Siamese cats aren’t dogs. It’s weird, but it clearly doesn’t mean that other cat breeds do count as puppies: they obviously don’t, because, again, they’re not dogs.

Here’s the relevant part of the Georgia law’s definition of abortion: “’Abortion’ means the act…with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child; provided, however, that any such act shall not be considered an abortion if the act is performed with the purpose of [r]emoving a dead unborn child caused by spontaneous abortion.” Like the Siamese cat clause, it’s a weird way to write a law: of course removing a miscarried child doesn’t count as an abortion, because you’ve already defined abortions as having a reasonable likelihood of causing an unborn child’s death, which removing an already dead child obviously doesn’t do.¹ And also like the Siamese cat clause, it’s weird, but it clearly doesn’t mean that removing other already dead unborn children does count as an abortion: it obviously doesn’t, because, again, removing an already dead unborn child doesn’t kill her.

What Now?

So there is currently no evidence whatsoever that confusion about Georgia’s abortion law caused Amber Thurman’s death. How can we make sure confusion about abortion laws doesn’t cause other deaths? Pro-life advocates and legislators absolutely need to take seriously the importance of writing abortion laws that are clear, and also messaging about them in a way that is clear, so that we make sure both that it is legal for doctors to provide lifesaving care and that doctors know it’s legal. And hospitals need to make sure that they are equipped to quickly think through these cases to ensure that doctors aren’t needlessly scared when the law is clear. But pro-choice advocates, politicians, and journalists also have an important responsibility here. If you actually care about women not dying because doctors are unsure whether they’re allowed to save their lives, then don’t publish pieces that muddy the waters about whether they’re allowed to save women’s lives when it is absolutely clear as written.

¹_{Except possibly in the rare case of removing one miscarried child while another twin or other multiples are still alive}

The post No, Georgia’s Abortion Law Did Not Cause Amber Thurman’s Death originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.” 

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