In Wisconsin, a group of doctors and lawyers is trying to come up with guidelines on how to comply with a newly revived 173-year-old law that prohibits abortion except to save the life of a pregnant woman. They face the daunting task of defining all the emergencies and conditions that might result in a pregnant woman’s death, and the fact that doctors could be punished with six years in prison if a prosecutor disagrees that abortion was necessary.
A similar task force at an Arizona hospital recommends having a lawyer on call to help doctors determine whether a woman’s condition threatens her life enough to justify an abortion. Already, the hospital has added questions to its electronic medical forms so they can be used to argue that patients who had abortions would have died without them.
And in Texas, oncologists say they now wait for pregnant women with cancer to get sicker before they treat them, because the standard of care would be to abort the fetus rather than allow treatments that damage it, but a state law allows abortion only “at risk of death.” Some hospitals have established committees to evaluate whether a pregnancy complication is severe enough to justify an abortion.
Two months after the Supreme Court overturned Roe v. Wade and the constitutional right to abortion, the medical consequences extend far beyond abortion clinics and women seeking to end unwanted pregnancies. Doctors who never thought of themselves as “abortionists,” to use the language of the court’s decision, say the criminalization of abortion is changing how they treat women who arrive in emergency rooms and on labor and delivery floors with wanted but complicated pregnancies.
During the 50 years of Roe, abortion became the standard of care in many medical situations. Now, laws ban it or make it unavailable in about half the states, usually with exceptions only for rape and incest or to save the life of the pregnant woman. While a few states have attempted to specify conditions that qualify, the laws are generally vague and have failed to account for every possibility. With lawmakers attempting to regulate medical procedures, medical providers say they have to think like lawyers.
“A lot of us go into emergency medicine because of the imperative to take care of every patient — the person without housing and a CEO — and we’re really proud of that ethical obligation to say, ‘Here’s the patient in front of me and I’m going to do everything I can for them,’” said Dr. Alison Haddock, an emergency physician in Houston and chair of the board of the American College of Emergency Physicians. Now, she said, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”
Physicians would more typically talk to hospital lawyers about guardianship when caring for elderly or psychiatric patients, Haddock said. Now, when patients arrive with ectopic pregnancies, miscarriages or hemorrhaging — all situations where abortion has been established as standard care — the questions for the lawyers are more pressing: “Do we wait until the fetus is definitely dead, or is mostly dead good enough?” she asked. “If they’re telling us to wait for the condition to be fully emergent, how much bleeding is too much?”
“Having to consult a lawyer in an emergent situation is a whole new ballgame,” she said.
Doctors in Texas began dealing with the questions even before the Supreme Court overturned Roe with its decision in Dobbs v. Jackson Women’s Health Organization. A law that took effect a year ago effectively banned most abortions after six weeks.
Some hospitals have instituted policies requiring one or two additional physicians to review the decision before an abortion can proceed. In states including Indiana and Louisiana, the law requires two doctors to certify that a woman faces life-threatening risk before she can get an abortion.
Dr. Julie Kwatra, an obstetrician in Scottsdale, Arizona, faced so many questions from doctors and nurses the weekend of the Dobbs decision in June that she and others at her hospital formed a committee to come up with guidelines to protect patients’ health and doctors from liability. A court has blocked one state law banning abortion, and the governor said abortion was still legal. But the state’s attorney general said he intended to enforce a ban that was written before Arizona became a state, so providers have almost entirely stopped.
The confusion, Kwatra said, was “eminently predictable,” given the number of situations where physicians have to terminate pregnancies to protect the health or life of the pregnant woman. But even she was surprised at the number and range of hospital employees who have emerged with concerns.
Forensic nurses who care for sexual assault victims in the emergency room said they would no longer provide morning-after contraception for fear it would be considered an abortion drug. Because the old law punishes those who “aid and abet” an abortion, an anesthesiologist worried that he might be prosecuted for putting a patient to sleep for an abortion. A neonatologist worried about liability for declining to resuscitate a fetus judged no longer viable.
“We already work under a cloud of getting sued. That’s what we signed up for,” Kwatra said. “This is different. This is criminal liability, not civil liability. This is jail time.”
Some anti-abortion doctors argue that the concerns about not being able to provide lifesaving abortion care are overblown — “blatantly absurd,” as Dr. Christina Francis, the chair of the American Association of Pro-life Obstetricians and Gynecologists, said at a congressional hearing in July.
“Not a single state law restricting abortion prevents treating these conditions,” Francis argued, because they make exceptions for any life-threatening emergency.
Anti-abortion groups contend that life-threatening conditions are rare in pregnancy and can be treated by inducing labor or performing a C-section rather than an abortion. “Even if the baby does not survive,” wrote Dr. Ingrid Skop, an obstetrician and the director of medical affairs at the Charlotte Lozier Institute, an anti-abortion group, “these humane procedures allow a grieving family to show love and say goodbye.”
Several high-profile cases of women denied care have captured headlines and set doctors on edge. But doctors say these extreme cases are not isolated; hospitals are routinely refusing or delaying care. One study of two Dallas hospitals in the nine months after the Texas ban took effect found that women had to wait an average of nine days for their conditions to be considered life threatening enough to justify abortion. Many suffered serious health consequences while they waited, including hemorrhaging and sepsis, and one woman had to have a hysterectomy as a result.
The Biden administration wrote medical providers in July, reminding them that they had to comply with a federal law known as the Emergency Medical Treatment and Labor Act. The law requires emergency rooms to provide stabilizing treatment to any patient who arrives with an emergency condition or in labor, or transfer them to a hospital that can provide it. That, the letter said, meant they “must provide” an abortion, even in states that ban it, if it is required to stabilize a woman’s health.
The Justice Department also sued Idaho, saying its new ban on abortion made it impossible for providers to comply with the federal law. A brief filed by a coalition of states in support of the lawsuit enumerated cases across the country where emergency physicians have had to perform abortions to save women’s lives. Well beyond common complications like miscarriage or a separated placenta, they included heart conditions, kidney disorders, sickle cell anemia, acute leukemia and at least one case of preeclampsia so severe that the woman’s liver began to fail.
But Texas’ attorney general, Ken Paxton, sued the administration for its guidance on the federal law, accusing it of an end-run to “turn hospitals and emergency rooms into walk-in abortion clinics.” Courts in the two states reached different conclusions: A federal judge in Texas agreed with the state and temporarily blocked implementation of the federal guidance on emergency treatment; one in Idaho agreed with the Biden administration and blocked the state law.
“There’s such confusion,” said Dr. Allison Linton, an obstetrician in Milwaukee, “and when doctors are hearing this risk of a felony charge, they’re erring on the side of fear.”
Roe, which prohibited states from banning abortion before viability, allowed doctors to offer patients options of how they wanted to be treated. “Now that patient autonomy has gone away,” said Dr. Abigail Cutler, an obstetrician-gynecologist at the University of Wisconsin-Madison.
“I’m compelled by my conscience to provide abortion care, and I have the training and the skills to do so compassionately and well,” she said. “And so to have my hands tied and not be able to help a person in front of me is devastating.”