Doctors in Anti-Abortion States Now Have No Idea When They’re Allowed to Save a Pregnant Person’s Life
One of the first patients emergency medicine physician Dr. Taylor Nichols ever treated on his own was a woman who had an ectopic pregnancy—a dangerous condition in which a fertilized egg grows outside the uterus, potentially causing life-threatening bleeding if it ruptures the organ in which it’s growing. She came into the hospital stable. By the time Nichols examined her, she was hemorrhaging.
Nichols got her into emergency surgery, where an ob-gyn operated to save the patient’s life. By that point, it was clear there was no other option. But had he been practicing in a state where ending a pregnancy is permissible only when a patient’s life is at risk—and had he seen her just a few hours earlier, when she was stable—“Would I have had to call the lawyer instead of the ob-gyn?” Nichols wonders.
That question is hypothetical for Nichols, who works in California, where abortion is accessible. But for providers in some U.S. states, it is now reality. In the aftermath of the Supreme Court overturning Roe v. Wade, about a dozen states—including Arkansas, Missouri, and South Dakota—have banned or will soon ban nearly all abortions (though some state policies have been tied up in court). Typically, these laws allow only limited exceptions, such as when a pregnant person’s life is at risk. But deciding when an abortion is lifesaving isn’t always clear-cut.
Consider a patient with a complication like preeclampsia (hypertension after 20 weeks of pregnancy), which can progress to become fatal in rare cases. Could a doctor intervene as soon as they fear it could become life-threatening, or would they have to wait until the condition becomes critical? Are ectopic pregnancies subject to abortion laws, since they never result in viable births? Who gets the final say about whether an abortion is medically necessary: patients, doctors, hospital lawyers, or state lawmakers? At the moment, there aren’t clear answers to many of these questions, and providers could potentially face legal penalties or hefty fines if their decision is at odds with their state’s.
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The confusion is already affecting patient care, according to anecdotal reports. Tammi Kromenaker, director of North Dakota’s only abortion clinic (which she soon plans to relocate to Minnesota), says she has already fielded questions from doctors in North Dakota who are worried about treating patients with ectopic pregnancies or incomplete miscarriages, during which the body doesn’t expel all pregnancy-related tissue. As of July 28, providers in North Dakota could be sentenced to five years in prison for providing an abortion, except in cases of rape or incest or when the pregnant person’s life is at risk.
“Doctors should use their training and medical judgment to take care of the patient. They should not have to pull out the law to see what they can and cannot do,” Kromenaker says. “That delays patient care. That puts patients’ health at risk.”
A condition that might be manageable for one patient can be life-threatening or altering for another, says Dr. David Turok, associate professor in the University of Utah department of obstetrics and gynecology and chief of the division of family planning (who emphasized that he’s speaking in his own capacity, and not on behalf of the university). Turok points to hypertension—which occurs in one in every dozen or so pregnancies—and gestational diabetes (which occurs in about 6-9% of pregnancies), both of which, in certain cases, can cause complications that threaten both the mother and fetus.
It’s hard to understand how Utah’s law—which, if implemented, would permit abortion in cases of “substantial” risk to the mother—would apply to people with these and other conditions, he says. “We’re now in a place where we’re trying to navigate what legislators and attorneys came up with, for language that really does not correlate to medical practice,” Turok says. “How bad does the medical condition need to be to intervene?” The way the law is written “could mean different things to different people,” he says. “Who gets to decide? Shouldn’t it be the patient? I think so.”
Elizabeth Nash, a principal policy associate at the Guttmacher Institute, argues that this confusion is by design. “The bottom line is that none of these exceptions are designed to be used,” Nash says. “Abortion opponents see any exception as a loophole, so they craft these exceptions to be as narrow as possible.”
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If the state disagrees with a clinician’s choice, the stakes can be high. In Alabama, performing an abortion could land a provider in prison for life, unless there’s a serious health risk to the pregnant person. In Arkansas, it could result in a 10-year sentence and/or a $100,000 fine, unless the abortion is deemed to be lifesaving. In Texas, a 2021 law made it easier to sue anyone who helps a person get an abortion after about six weeks of pregnancy.
“Abortion and pregnancy outcomes are under a microscope…in a way we haven’t seen in years past,” says Heather Shumaker, director of state abortion access at the National Women’s Law Center. Shumaker says she would be surprised if doctors’ decisions weren’t questioned at some point, particularly in states hostile to abortion.
It’s one thing to take personal risks to save a patient in a clear life-or-death situation—like with his ectopic pregnancy patient who was bleeding out, Nichols says. It’s harder when there’s a gray area. “You could get charged with a felony. You could have your license revoked. That’s your entire livelihood, the thing that we’ve spent our entire lives training for,” he says.
It’s not always just one provider who has to decide whether they’re willing to take a risk, adds Dr. Maria Rodriguez, a professor of obstetrics and gynecology at Oregon Health and Science University School of Medicine. A lifesaving procedure might require multiple nurses, an anesthesiologist, and others—all of whom are taking on potential liability, depending on how their state’s law is written and interpreted. Rodriguez practices in Oregon, a state where abortion access is protected. But during her training, she worked in a Catholic hospital that restricted abortion services, and she remembers trying to convince colleagues to help her save a woman hemorrhaging from a miscarriage.
“Nobody wants their doctor on the phone to the hospital lawyer as they’re hemorrhaging,” Rodriguez says. In those situations, a delay of even a few minutes can mean the difference between life and death.
If a physician is forced to grapple with whether a patient meets the legal criteria for receiving an abortion, they may also miss opportunities to prevent their condition from getting worse, says Dr. Louise Perkins King, an ob-gyn and director of reproductive bioethics at Harvard Medical School Center for Bioethics. Some conditions require quick decisions in order to prevent devastating complications. There’s not always time to run medical decisions by legal departments. “The problem with these laws is that they don’t allow us to act,” King says, “to prevent us from getting to the point when it’s clear someone’s life is at stake.”
Dangerous complications can happen suddenly. “In a really harrowing experience I had in residency, we had a woman with sepsis [after delivery], where she ended up with gangrene in her extremities. She ended up with only a torso,” King says. “The minute that we can intervene and have a path forward to help someone, we should institute that as fast as possible, so that we’re not caught in these every-second-counts situations.”
Read More: The State of Abortion Rights Around the World
Laws that permit abortions in cases where the fetus has a severe genetic defect will also be difficult to navigate, King says. For example, if a fetus develops hydrocephalus—in which fluid puts pressure on the brain—expectant mothers who were unable to terminate the pregnancy early enough could require a c-section, since delivering a baby with an enlarged head vaginally becomes impossible.
“You’d have to find a way to deliver a grossly abnormal and enlarged fetal head intact, which might be a very, very risky surgery compared to a normal cesarean section,” King says. “None of this makes any sense to me from a medical standpoint, because the fetus will not survive. And then you’ve quite severely injured the pregnant person.”
Mental health should also be a consideration, Rodriguez adds. Suicide is a major cause of maternal and postpartum mortality, she says, so performing an abortion to ease severe psychological distress could ultimately be lifesaving. Whether states agree, however, is another question.
“Each law is so different,” Shumaker says. “Most of them are fairly ambiguous about when abortion is permissible and how it can be determined.”
Given all the legal uncertainty, Rodriguez says hospitals can’t leave clinicians to make these decisions alone. “We need hospitals’ lawyers, administrators, and management thinking through these issues now and messaging out clearly what their teams can and can’t do,” she says. That way, providers aren’t forced to make difficult decisions with a patient potentially dying in front of them.
Shumaker adds that clinicians should keep detailed notes about why any abortions they perform were medically necessary, in case those decisions are later challenged legally.
It’s incumbent upon legislators and attorneys general to clarify the laws and make clear to healthcare providers what will and will not be prosecuted, King says. “These laws are written by legislators who didn’t take the time to understand what they were writing laws about,” King says. “They have a moral duty to go in and fix that and change these laws so they are clear, if they don’t want people to die because of them.”
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Contributor: Jamie Ducharme and Tara Law