After the Supreme Court’s decision in June in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade (1973) and abolished the constitutional right to an abortion, a number of states’ trigger bans snapped into place. As of Aug. 25, 13 states effectively ban or severely limit access to abortion. Every one of these laws, however, contains a clause allowing physicians to perform abortions in cases of medical emergency. Politicians claim these provisions will prevent women’s deaths.

But many physicians and abortion rights activists counter that the clauses are unclear and insufficient to protect those who are pregnant, as well as medical practitioners. And history shows they’re probably right.

The problem lies in how to define a medical emergency — and who gets to define it. Before Roe v. Wade, most states allowed for abortion in cases of medical emergency or necessity. Court records indicate, however, that many physicians, nurses and midwives were tried and convicted for performing abortions after the legal system rejected their claims about medical necessity. Prosecutors, judges and juries decided what was medically necessary — not doctors and patients — leaving doctors at the whim of the legal system for exercising their best medical judgment.

In 1921, for example, Belvie Duncan, a married 23-year-old mother of two, sought an abortion from physician Herbert E. Johnson in Jefferson City, Mo. According to Duncan and her husband, she had suffered for months after a bout of typhoid fever, leaving her very thin and bedridden. She could barely care for her two children. Her husband agreed that she would not be able to give birth safely, so the couple visited Johnson, who agreed she was not well and performed the procedure. Unfortunately, the abortion led to an infection and bleeding, which necessitated treatment, leading to Johnson’s arrest for felony abortion.

The charges typified how, in this period, when abortions led to infection or death, officials often arrested physicians — even though the exception in states’ abortion bans theoretically protected them when they believed abortions were medically necessary. Generally, when abortions were performed safely, prosecutors either didn’t know about the procedures or chose to look the other way since there was no harm to the patient. But when a complication arose, it was a different story.