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. The woman arrived at the hospital in stable condition. Nichols checked her and found that she had hemorhaging.
Nichols got her into emergency surgery, where an ob-gyn operated to save the patient’s life. It was obvious that there wasn’t another 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 was stable—“Would I have had to call the lawyer instead of the ob-gyn?” Nichols wonders.
Nichols works in California where it is legal to have an abortion. It is now a reality for some providers in the United States. Following the Supreme Court decision, it is now reality. 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.
Preeclampsia is a condition that can lead to fatal complications in very rare instances. Is it possible for a doctor to intervene immediately if they are concerned that the situation could be life-threatening? Or would they need to wait until they become critical. Ectopic pregnancies are subject to the laws on abortion, as they do not produce viable births. What determines if an abortion can be considered medically necessary? Doctors, nurses, legislators or patients? 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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According to some reports, the confusion may already be affecting patient care. 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 (principal policy associate, Guttmacher Institute) argues that confusions like these are intentional. “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. Arkansas law allows for a 10 year sentence or a $100,000 fine. If the abortion is lifesaving, it can lead to a lifetime prison sentence. A 2021 Texas law makes it easier for anyone to sue someone who assists a woman in having an abortion. This was after six weeks.
“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. It is possible to lose your licence. 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 works in Oregon where abortion access protection is guaranteed. She did her training in the Catholic Hospital that provided abortions, but she recalls struggling to get her colleagues to save a woman who had miscarried.
“Nobody wants their doctor on the phone to the hospital lawyer as they’re hemorrhaging,” Rodriguez says. Even a minute delay can make the difference in these situations.
A physician who has to decide whether or not a patient is eligible for an abortion may miss the opportunity to save their situation. Dr. Louise Perkins King, an obs-gyn at Harvard Medical School Center for Bioethics, said that if they have to deal with this issue, it can lead to a delay in treatment. 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.”
Sudden complications could lead to serious consequences. “In a really harrowing experience I had in residency, we had a woman with sepsis [after delivery]She ended up in the hospital with severe gangrene. 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.”
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King states that laws that allow abortions when the foetus is suffering from a serious genetic condition will be hard to follow. 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.”
Rodriguez says mental health must also be considered. Rodriguez says suicide is one of the major causes of maternal and post-partum death. Thus, performing an abortion in severe mental distress can be potentially lifesaving. It is not clear if states will agree to this.
“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 says that physicians should make detailed notes on why each abortion they do is medically necessary in the event of legal challenges.
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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