Since June 2022, when the Supreme Court of the United States ruled that the U.S. Constitution does not confer a right to abortion, more than a dozen states have enacted a ban on the procedure. And while elective abortions at any point during pregnancy are now illegal in nearly a third of all U.S. states, clinicians and policymakers have sparred over the legality of abortion procedures in cases where a pregnant patient’s life is in danger.
Even though every state has an exception that allows for an abortion needed to save the life of the pregnant person, some physicians report that the political rhetoric around the issue has caused a chilling effect, scaring doctors away from providing needed emergency care. Many physicians fear that if they provide a medically indicated abortion, they will lose their medical license, be sued, or — in some states — be charged with a felony.
There have been several nationally publicized incidents where women experiencing pregnancy complications were turned away at hospitals due to fear that performing an abortion would be ruled as illegal. In those highly publicized cases, some of the women went out of state for the procedures; others had to wait until their physical condition deteriorated to receive an abortion; and others carried the pregnancies until their babies with severe — and, in some cases, fatal — medical conditions could be delivered preterm.
To date, no physician has been criminally prosecuted in any state for providing an abortion that was due to a medical emergency. Still, some doctors say that the exceptions to abortion bans are not clear enough to dissuade their fears of repercussions should they perform an abortion. And some physicians have opted to leave states with abortion restrictions, or even the field of OB-GYN altogether, as AAMCNews reported in August.
Lack of clarity on qualifying exceptions
In the flurry of changing legislation on abortion and ongoing court challenges since the Dobbs v. Jackson Women’s Health Organization Supreme Court decision last year, many hospital systems and clinicians are uncertain about under which circumstances they can legally perform an abortion, says Molly Meegan, JD, chief legal officer and general counsel for the American College of Obstetricians and Gynecologists (ACOG).
“The laws are drafted in a way that is very confusing, vague, and open to interpretation,” she says. “Our doctors are doctors, they’re not lawyers… without guidance from a hospital or employer, it is almost impossible for a clinician to know what the lines are.”
Adding to the confusion, each state law varies its wording for exceptions. In Idaho, for example, an abortion is legal if the physician determines in “good faith medical judgment and based on the facts known to the physician at the time that the abortion was necessary to prevent the death of the pregnant woman.”
Texas allows abortions when “in the exercise of reasonable medical judgment” the pregnant person has a life-threatening condition “aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
In April, Tennessee’s governor signed a bill that clarified some exceptions to its abortion ban, allowing a physician to use “reasonable medical judgment” to determine when an abortion is necessary to prevent death or severe impairment to a major bodily function. The new bill also clarifies that treatment for ectopic pregnancy – when a fertilized egg implants outside of the uterus, which, without removal, can result in the death of the pregnant person – and miscarriage management are allowed under the law.
Shortly after the Supreme Court issued its Dobbs ruling last June, ACOG published a series of questions that hospital system leaders should consider in light of the changing laws, including: questions about creating task forces (much like existing ethics committees); what kinds of experts should be on those task forces; and how a hospital might prepare to either transfer complex cases out of state, or in states with fewer restrictions, receive more complex cases from other states.
In August 2022, ACOG also published guidance for physicians navigating “emergency abortions” in states with abortion bans, emphasizing the need for clinicians to exercise their medical expertise specific to the circumstances and stating that, “it is impossible to create an inclusive list of conditions that qualify as ‘medical emergencies.’”
A Kaiser Family Foundation survey conducted in spring 2023 found that 68% of office-based OB-GYNs said that the Dobbs ruling has worsened their ability to manage pregnancy-related emergencies and 40% of OB-GYNs practicing in a state with a ban said they personally felt constrained in their ability to manage miscarriages and pregnancy-related medical emergencies.
The legal confusion is further compounded by the fact that those physicians who decline to provide an abortion when the pregnant person’s life may be at risk for fear of running afoul of state law could be in violation of federal law.
In May 2023, the U.S. Department of Health and Human Services (HHS) issued a letter to hospital and provider associations across the country reminding them of their legal requirement under the federal Emergency Medical Treatment & Labor Act (EMTALA), which requires medical providers to stabilize a patient in an emergency — including performing an abortion when necessary. The HHS investigated two hospitals: one in Missouri, where abortion is illegal “except in cases of medical emergency”; and one in Kansas, where abortion is legal up until 22 weeks of pregnancy. The investigation found that both hospitals violated federal law for refusing an abortion to a woman whose water broke at 17 weeks. The woman, who was turned away from both hospitals, ended up traveling to Illinois to obtain an abortion.
In Idaho, the state Supreme Court ruled that emergency physicians could not be prosecuted under the state’s abortion law when providing an abortion to a pregnant patient whose life is endangered because the law conflicts with EMTALA. The state attorney general argued that the ruling was unnecessary, since the law already allowed for such exceptions, but a federal judge upheld it, saying that the law was vague enough to cause confusion that could result in delayed emergency care for a pregnant person.
That confusion calls for better education on the application of these laws so that physicians feel more confident in providing appropriate care to their patients, says Christina Francis, MD, an OB-GYN and CEO of the American Association of Pro-Life Obstetricians and Gynecologists, an anti-abortion medical organization.
“There is not a single law in this country that protects life that prevents physicians from being able to act immediately when a patient’s life is in danger,” she says. “Hospital lawyers and systems need to do a better job of educating their physicians about what their state law says.”
Francis, who has been a practicing board-certified OB-GYN for 15 years, says that she sees the laws as consistent with how she has practiced medicine throughout her career.
In difficult cases, Francis says she closely monitors her patients and intervenes by inducing birth or by emergency cesarean section (C-section) if necessary.
“If you have good training in obstetrics, you do understand when you need to make that call,” she says. “It doesn’t require waiting until a woman is on her deathbed to intervene.”
Advising patients in the most difficult situations
But for Sarah Osmundson, MD, a maternal-fetal medicine specialist and associate professor of Obstetrics & Gynecology at Vanderbilt University School of Medicine in Nashville, the Tennessee abortion law does not seem so cut-and-dried.
Life-threatening pregnancy complications are rare. Ectopic pregnancies make up less than 2% of all pregnancies; molar pregnancies — when abnormal tissue grows from a genetic error during fertilization, resulting in a dangerous, nonviable pregnancy — occur in 1 out of every 1,000 pregnancies; and Preterm Premature Rupture of Membrane (PPROM) — when a pregnant person’s water breaks before 37 weeks, putting them at risk of infection — occurs in less than 10% of pregnancies. However, Osmundson, and other maternal-fetal medicine specialists at major academic health centers, see the rare cases on a regular basis.
“Unfortunately, we have patients who have very desired pregnancies, but for whatever reason cannot continue for maternal [complications],” Osmundson says. “Before the law, these were always difficult discussions to have. Now, it’s complicated by the overarching situation.”
Osmundson says that she and many of her colleagues have agreed amongst themselves that they will provide whatever lifesaving care they believe is necessary and will refer their patients out of state for abortions that don’t fall under the exceptions in the law. Should there ever be a situation where she is criminally charged for providing what she saw as medically necessary care, Osmundson is depending on a strong defense from her institution’s legal team. However, she knows not all physicians have that option.
“I feel for physicians practicing by themselves who don’t have the backing of a large organization,” she says. In the last year, she’s noticed she’s getting more referrals of complicated pregnancies than she has in the past. She attributes it to other physicians worrying about having to defend a medical judgment call in court.
“It puts physicians in a horrible situation,” Osmundson says.
She adds that she appreciates the Tennessee law clarifying that an abortion performed to save the pregnant person in an emergency is legal, but would like further clarity from lawmakers on cases where abortion is not needed to immediately save the pregnant person, but could increase their chances of survival in the long-term, such as when the pregnant person has cancer or is at risk of infection from PPROM.
“A lot of my patients don’t even realize that what they’re asking for is an abortion,” she says. “We would love to make this a decision that happens between patients and physicians and leave everyone else out of it.”
Uniting the field behind patient care
To Matthew Wynia, MD, MPH, director of the Center for Bioethics and Humanities at the University of Colorado Anschutz Medical Campus, the current climate surrounding medically indicated abortions is part of a larger trend of right-wing politicians attacking the integrity and authority of the medical field.
“When we had debates before, such as about improving access to care, politicians on either side didn’t generally accuse the medical community of bad intentions or of being untrustworthy,” he says. “These were political disagreements about how to spend money and differing values. But now it's really a very targeted attack on the medical profession.”
Last September, Wynia published an article in the New England Journal of Medicine calling on the medical profession to collectively discuss whether there should be a civil disobedience movement — where physicians, as a group, agree to disobey a law if they believe it is endangering their patients.
So far, however, no such movement has taken off, he says. He believes many physicians are making judgment calls that may or may not fall under state abortion law exceptions, but they are doing so quietly. He also points out that state attorneys general and local district attorneys are not jumping to prosecute physicians. Though future criminal and civil action against physicians is possible, Wynia believes both prosecutors and physicians are treading carefully because of the sensitivity and nuances around the issue.
“No one wants to be that test case,” he says. “Everyone's involving their lawyers [in medical practice] and the consequences there are that, tragically, some women are undoubtedly being put at more risk in order to protect against the potential for legal risk of the institution.”
Another challenge physicians face is that their malpractice insurance doesn’t cover potential criminal charges, Wynia says. He believes this is something that insurance providers will have to address as the medical field adjusts to the developing legal landscape around abortion.
And although he supports the repeal of abortion restrictions, in the meantime, Wynia says the medical field should band together to practice within the current framework for the sake of the patients.
“We get to set the standard for medical practice,” he says. “And yes, we're trying to operate within the bounds of these laws, but the laws don't tell us what counts as necessary to save the life of the mother, so we get to set those standards until it gets taken away from us. That is our authority and we should exercise it responsibly.”