New abortion bans leave physicians in gray area in post-Roe world
As colleagues in other parts of the Midwest responded with leads for out-of-state clinics, Verma mentally added the case to her growing list of gray-area situations where the new abortion bans fail to capture the complexity of modern medicine and leave doctors in the lurch.
“There are so many unanswered questions,” said Verma, an OB/GYN in Atlanta, where a six-week abortion ban law that is on hold could be activated soon. “The decision is creating confusion and fear because we know what to do medically, but we don’t know what we can do based on the law.”
The high court’s decision sending the power to regulate abortion back to the states means that there are now 50 states with varying approaches, each with their unique language and interpretation of where to draw the line between when the procedure is appropriate and when it is a crime.
Graphic: Abortion is now banned in these states. Others will follow.
The American College of Obstetricians and Gynecologists (ACOG) joined numerous other professional organizations and medical journals over the past few days in warning that the ruling will affect health care beyond abortion, creating new risks for patients and potentially increasing maternal mortality. Doctors have expressed concern about the impact on situations including miscarriage and in vitro fertilization. The practice of medicine will be reshaped, the group said, or even contradicted “by laws not founded in science or based on evidence.”
Even OB/GYNs who are antiabortion acknowledge the medical nuances.
Christina Francis, a doctor in Indiana and board member of the American Association of Pro-Life Obstetricians and Gynecologists, said in an interview that “sometimes there are clinical situations that are unclear” about whether there’s a need for a pregnancy to be terminated. But Francis said that in her career working at Catholic hospitals that ban elective abortion, she always felt she was able to intervene by removing pregnancy tissue when medically necessary, such as in ectopic pregnancies when the embryo implants outside the womb and cannot survive.
“There will be an education process,” Francis said, explaining that many physicians have been trained to prioritize the mother in a pregnancy but now they will have to consider two lives — the mother’s and the fetus’s — equally. “Never once have I ever felt my hands were tied to take care of my patients with anything but excellent health care.”
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Three states — Kentucky, Louisiana and South Dakota — banned the procedure immediately following the Supreme Court’s decision. (Louisiana’s law was blocked by a state court three days later, with a hearing set for next month.) Ten have trigger laws that have already gone into effect or will go into effect in the coming weeks. About a dozen others have pre-Roe bans or restrictions that could be activated quickly, or conservative-leaning legislatures that have been debating them. In Wisconsin, an 1849 abortion ban is part of state law and, although the Democratic attorney general has said he would not enforce it, clinics suspended services on Friday. That means abortion may cease to be an option in the near future in half of the country.
Verma, an ACOG fellow who is on a post-Roe task force organized by physician groups in Georgia, said there has been alarm in their discussions that even routine treatments or procedures such as giving anesthesia or chemotherapy to pregnant patients could put doctors at risk of prosecution because of the possibility of injury to the fetus. She wondered, “Are surgeons going to be afraid to intervene when a pregnant patient ruptures their appendix because they might inadvertently end the pregnancy?”
“We are treating this as a disaster response,” Verma said. “We are in an emergency, and this is a disaster.”
Even before the turmoil created by the overturning of Roe, obstetrics and gynecology was considered one of the most challenging specialties of medicine because of high-pressure decision-making and high-risk surgeries. The United States is suffering from a shortage of thousands of OB/GYNs, and many counties lack even a single provider.
The new reproductive landscape could further discourage medical students from pursuing the field in the future and leave all trainees with holes in their knowledge due to the new bans. In a study published in Obstetrics & Gynecology, Kavita Vinekar, an assistant clinical professor at UCLA, and her co-authors found that roughly half of medical residency would be in states that have or are predicted to restrict or ban abortion; the residents would no longer have access to that training despite the fact that it is a requirement by the graduate medical accreditation council.
“In our political climate, there is abortion care and obstetric care in different buckets,” Vinekar explained. “But clinically, the areas are all so interconnected.”
In the town of McCall, Idaho, about 100 miles outside of Boise, family physician Caitlin Gustafson does it all — from eldercare and emergency trauma to delivering babies.
An abortion ban is scheduled to go into effect in about 30 days in her state. Gustafson said she’s read the state law more than 100 times, yet still can’t make sense of what’s allowed — and what is a crime that might land her in prison.
“Every time I read it I get more confused,” she said.
A few weeks ago, a woman’s water broke early in the pregnancy, long before the fetus was viable. In those situations, doctors typically counsel women that they are at risk of sepsis, a systemic infection, and let them decide how to proceed. Some choose an abortion, while others wait it out — but the longer they wait, the longer the risk of life-threatening complications. Gustafson said she was clear that she could give the woman a choice in this case. But what about the next patient in similar circumstances after the ban goes into effect?
At 1½ pages, Idaho’s law is longer than most and includes attempts at defining some terms. But Gustafson, who has worked as a physician for more than 20 years, said phrases such as “provided the best opportunity for the unborn child to survive” do not have clear medical definitions and can be interpreted in different ways. The law does make an exception to the ban for rape or incest, but people seeking abortion in those circumstances are required to provide a copy of a report from a law enforcement agency to a physician.
Gustafson worries that barrier is too high. Few people would be willing to make such a report, she said, and physicians would have a difficult time evaluating its authenticity.
“I personally would have to consult a lawyer, and that would create further delay,” she said.
Moreover, she explained, many complications related to pregnancy — including infection as well as preeclampsia, in which the blood pressure can rise precipitously — involve a gradual descent into a life-threatening state. It’s unclear how sick a patient has to be before the state’s exception allowing abortion to save the life of the mother kicks in and the patient is eligible to have the pregnancy terminated.
Gustafson said the new law would result in “a complete disruption of the physician-patient relationship” as it pertains to reproductive health care.
She worries it may take years for lawyers and courts to work these issues out: “This won’t be short-lived. This will go on and on.”
Meanwhile, physicians are left in limbo as to the steps they can legally take to protect the lives of their pregnant patients.
In Nashville, Edward Hills, a physician at Meharry Medical College, a historically Black college, predicts that doctors will have to spend more time thinking about “defending ourselves against legal challenges.”
“It will slow things down,” Hills said.
A near-total abortion ban is set to take effect in Tennessee in a month, but the state’s attorney general has filed a motion to enact the restrictions sooner.
Hills worries that in the case of a miscarriage that is clear cut because there is no longer a heartbeat, doctors may still want a second person to confirm the ultrasound after the new law goes into effect “in case a vigilante comes along” and accuses a medical provider of wrongly performing an abortion.
Hills, who finished his medical residency in 1974, the year after Roe v. Wade legalized the right to abortion throughout the country, said he had seen some “horrible things” with women trying to manage abortions on their own. The United States already has among the highest rates of maternal mortality in the developed world, disproportionately affecting poor women and women of color. He worries not just about their risk of death, but about their ability to carry babies in the future, their mental health, their socioeconomic state, and the fate of children born under such circumstances.
“These are the people I worry about the most,” he said. “It’s heartbreaking for us as OB/GYNs to be in a position of not being able to protect these patients.”
In some states, the decision that overturned Roe came in the middle of debate among lawmakers over possible abortion bans, leaving medical providers in a state of uncertainty. In Nebraska, where a special session of the legislature this summer is expected to address abortion, a previous bill that would make it a felony for anyone to perform a procedure or provide medication with intent to terminate “the life of an unborn child” failed to pass by only two votes.
Elizabeth Constance, a fertility specialist in Nebraska, worries that the language of the draft abortion ban her state lawmakers are considering is so broad it could make it more difficult to access — and could even outlaw — in vitro fertilization, in which the sperm and egg are joined in a lab. The process results in a number of unused embryos, and the bill, LB 933, defines life as beginning at fertilization.
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“From the moment the decision was announced, our phones were ringing off the hook,” Constance said. Patients wondered whether they could still go through with their fertility treatments or whether they should be worried their provider would be criminalized for helping them.
Constance said politicians need to seek out medical professionals to understand “those broad-reaching implications of the language they use” in their bills.
“Every word is going to matter,” she said.