Doctor who sued Idaho says chaos reigns as abortion bans go into effect

Over the past week, the landscape around abortion in Idaho dramatically changed — and the rest of the country is watching, particularly in Washington, now receiving many abortion patients from its eastern neighbor.

Idaho’s Legislature already had passed laws restricting, then almost totally banning, abortion. But the laws had not yet taken effect, in part because of federal abortion protections, overturned in June by the U.S. Supreme Court, and in part because of three lawsuits filed by the sprawling Seattle-based Planned Parenthood affiliate and a rural Idaho doctor, Caitlin Gustafson.

Due to an Idaho Supreme Court ruling on Aug. 12, medical professionals who provide an abortion after a fetal heartbeat is detected, typically about six weeks into a pregnancy, now can be sued for a minimum of $20,000. Providers of such an abortion can be criminally prosecuted for a felony beginning Friday, except in cases of a medical emergency, rape or incest.

At the same time, an Idaho law known as the “Total Abortion Ban” is scheduled to go into effect Aug. 25 unless a federal court grants a preliminary injunction. The state Supreme Court declined to do so.

That law, making it a felony to provide almost all abortions, does not have exceptions, per se, but allows providers to defend themselves in court if a pregnancy resulted from rape or incest reported to law enforcement — or if an abortion was necessary to prevent the death of a pregnant patient.

Lawsuits over these laws are pending, with the U.S. Department of Justice suing Idaho as well as Planned Parenthood and Gustafson.

Confused? Many providers and patients are, says Gustafson, who has a private family medicine practice about 100 miles north of Boise and works on a per diem basis for Planned Parenthood.

We talked with her this week about how she’s navigating laws that will curtail abortions not only for residents of her state but also, as Washington Attorney General Bob Ferguson pointed out this week while filing a friend of the court brief, for Washingtonians visiting, working and studying in Idaho. Clinics in Washington are likely to be strained by an influx of abortion patients, Ferguson said.

Gustafson spoke quickly, in passionate bursts, edited here for length and clarity. An abortion provider for 16 years, she said she never spoke about this part of her practice publicly until Idaho’s abortions laws, some of the most restrictive in the nation, prompted her to file suit.

Could you walk me through what you do when you get on the phone with a patient? Do you say: How far along do you think you are?

Exactly. I just did this today. A call comes through to the front desk. A patient who’s had a home pregnancy test. She’s had previous pregnancies.

The conversation is around: How far along do you think you are? This is where we are. But I want you to come in. I can still do laboratory testing. I can do an ultrasound.

I want the patient to know that they have an intrauterine pregnancy, that they don’t have some other medical complication going on, and then we’ll go from there.

Was this patient seeking an abortion?

She wasn’t sure. But she was asking, you know: Is it available? I’m hearing things. I think I might want an abortion. What do I do?

So a person comes in. After an ultrasound, you can say how far along she is and then determine whether you can do an abortion in state or not, is that right?

Yes.

If not, is there any penalty you can face for referring someone out of state?

That’s not part of the statute as we interpret it. But certainly we have concerns.

Other states have laws that extend to people other than the provider, so-called aiding and abetting. Even if I didn’t perform the abortion, would that be considered aiding and abetting? There are lots of questions circulating about that. Again, that is not written into any of the statutes we are currently dealing with. Currently, criminal and civil charges can only be brought against a provider who directly performs or induces an abortion. But there’s fear in the provider community.

Right now, we have situations in which patients with miscarriages, patients with tubal pregnancies (a form of ectopic pregnancy, in which a fetus grows outside the uterus) — there is concern about treating them and staying within the letter of the law. A good example is the use of methotrexate, which is the standard treatment for ectopic pregnancy. (The drug ends the pregnancy.)

I have been on hours of meetings with physicians and lawyers trying to interpret this, and whether this care could potentially result in a criminal investigation.

Is it (ectopic pregnancy) life-threatening to the woman in the moment it’s diagnosed? Sometimes. It’s on the verge of rupture, or it’s already rupturing. She’s bleeding into her abdomen. But ectopic pregnancies need to be treated so that they don’t cause that.

Can we treat them before the medical emergencies? Or do we have to sit on them?

Can you tell me about the atmosphere in Idaho?

There’s all this confusion. We are dealing with multiple laws, passed over multiple years, some of which have overlapping restrictions and different effective dates, with different language around exceptions and affirmative defenses. It’s essentially just a chaotic situation.

What will you do if the Total Abortion Ban goes into effect?

We’re going to obviously follow the letter of the law, but the problem is that the ban is so vaguely written that it puts us in a position of not really knowing. In real time, we’re trying to think of all these clinical scenarios in which we feel like care could go forward and we’d be protected. But once again, it’s not guaranteed.

So I think there will be a lot more transfers of patients to other states in situations in which time allows for that. There will be inherent delays while doctors caring for patients feel there is a window to wait for symptoms to become life-threatening. That is a horrendous situation for the patient and the doctor.

You talk about fear. Were you fearful at all about bringing a lawsuit?

Abortion has been stigmatized in this country. I think it’s hard to speak out as an abortion provider because of that stigma. But I think the time for me personally was now because I feel like that’s partly how we got to this place — because abortion care has been treated as something that isn’t part of the normal continuum of reproductive health care, even though it is.

My physical safety is part of my responsibility and something that I think about all the time, because of the history of the anti-abortion movement, which has on multiple instances been violent. I’ve always tried to be protective of myself and my family, despite providing this care, and I think about that every day.

What happened after you filed a lawsuit?

The reaction that I’ve heard, personally, has all been positive. Thank you for standing up for our essential health care. Thank you for being willing to put yourself out there.

A lot of these are patients of mine, longtime patients of mine, some of whom never probably even knew that I provided abortion care, because it never came up. I think that’s representative. I truly believe that the majority of Idahoans don’t want the government to interfere [with] their health care no matter what their personal ethics or personal beliefs are around abortion.