Abortion laws in Texas, Wisconsin forcing pregnant women to wait for care

·7 min read

Three days after the Supreme Court overturned Roe v. Wade, Melissa Janssen’s water broke.

But Janssen, 35, was just 18 weeks pregnant, too early for the baby to have a good chance of survival.

“I was in absolute shock and just kind of numb,” she said.

Doctors told Janssen she had two options. First, she could wait and see, although the baby most likely would die and she’d be at increasing risk for sepsis, a dangerous infection.

Melissa Janssen with her husband, Mijail Constante. Janssen's water broke when she was just 18 weeks pregnant, most likely too early for the baby to survive. (Courtesy Melissa Janssen)
Melissa Janssen with her husband, Mijail Constante. Janssen's water broke when she was just 18 weeks pregnant, most likely too early for the baby to survive. (Courtesy Melissa Janssen)

Her other option was to terminate the pregnancy. But Janssen lives in Wisconsin, which immediately banned nearly all abortions once Roe was overturned in late June.

“It was just mind-blowing,” she said. “I just couldn’t believe this was happening and this was me.”

Janssen wanted to terminate; she was already showing symptoms of an infection, including a low-grade fever and tenderness in her belly, and the baby’s heart rate was becoming elevated. But the change in the law meant her OB-GYN, Dr. Jordan Crow, faced a dilemma. In Wisconsin, the only exception allowing for an abortion is when the mother’s life is in danger. Without symptoms of a full-blown infection, legally it was a tough call to make.

“To be a doctor in that position, then to be in this situation where you’re uncertain, you think, will the hospital let me do this? Will the DA go after me and I end up fined or in jail?” Crow said. “It’s this feeling of helplessness and utter confusion for everyone involved.”

Janssen’s case is a living example of the struggle doctors across the country now face.

Melissa Janssen holds a paper card with her child's hand and foot prints. (Courtesy Melissa Janssen)
Melissa Janssen holds a paper card with her child's hand and foot prints. (Courtesy Melissa Janssen)

Ten states have near-total abortion bans. Four other states prohibit the procedure after six weeks. While all of them have exceptions for the life of the mother, doctors say that what constitutes imminent death has remained vague under the laws, which could put pregnant patients in grave danger.

The situation has been playing out in Texas for nearly a year since Senate Bill 8 was enacted in September, banning abortions as soon as cardiac activity is detected, which is typically around six weeks.

A July study in the American Journal of Obstetrics & Gynecology found that the bill has had dire consequences for some pregnant women who faced serious complications, like Janssen.

“Prior to SB8, most providers would offer the patient an opportunity to induce labor or have a procedure in order to prevent those complications from happening,” said Dr. Anitra Beasley, an OB-GYN and associate professor at Baylor College of Medicine, who wasn’t involved with the research. “And now we’re waiting till the complications are happening. It can be really dangerous. That’s the reason why it’s not something we want to do.”

The study, from researchers at the University of Texas Southwestern Medical Center, looked at 28 women whose water broke before 23 weeks into their pregnancies, too early for the fetuses to be viable. The women were made to wait nine days on average before doctors would intervene and terminate the pregnancies. Nearly 60 percent of the women experienced serious complications, including infection and hemorrhaging — nearly double the proportion of those in states without bans.

“As time goes on, those risks increase,” Beasley said. “So the worse the infection is when you’re developing sepsis, that can be life-threatening. When you’re having really heavy bleeding, that can be life-threatening, and that’s our concern.”

UT Southwestern declined to grant any interviews about the study. It said in a statement that “the findings speak for themselves.”

Beasley is a co-author of a perspective paper published in the New England Journal of Medicine that described SB8 as having “a chilling effect” on patient care.

Beasley and co-authors interviewed 25 clinicians and 20 patients across Texas.

“We found that the definition of emergency care is a little bit vague,” she said. “And so the interpretation of what’s going on means that patients, pregnant patients, aren’t able to get the evidence-based care that they need, want and deserve until they are often really sick — so until their emergency has turned into something that’s often life-threatening.”

Houston residents Elizabeth and James Weller experienced that firsthand in May.

Elizabeth Weller was pregnant with their first child when her water broke at 18 weeks.

Her doctor wasn’t hopeful.

“She told me that you must understand that the likelihood of her being able to reach the week of viability is very low,” Weller said. “And if she does reach the week of viability and we’re able to deliver her, the fact of the matter is that your baby is going to be born with horrible physical disabilities that will completely deplete her quality of life.”

With Weller at risk of sepsis and scared that their baby would suffer, she and her husband agreed that terminating the pregnancy was the best option.

“I just couldn’t imagine having to put my baby through that type of suffering,” Elizabeth Weller said. “And for the rest of that night, we just held each other and we cried over my belly, knowing that we were having to come to terms with the fact that we were choosing to terminate a pregnancy.”

But the next day, their doctor told them the hospital wouldn’t allow it. Weller wasn’t showing symptoms of infection and therefore wasn’t immediately at risk of dying.

“She and the nurses essentially told me you’re being sent home to develop the signs of an infection,” Weller said. “Because due to the laws and due to the conversations that are being had right now, because this is during the time of the Roe v. Wade leak, we’re in a position to where the administration will not give us the clearance for this.”

So she went home and waited to get sicker.

Four days later, she experienced a foul-smelling yellow discharge, a symptom of infection. Just as she got to the emergency room, she learned that the hospital’s ethics committee had finally given approval to terminate the pregnancy.

“I still had to go through this ordeal, even with the outline that there was an exception for when my life was in danger,” she said, referring to SB8. “But the thing is, where is that threshold of danger? Where does that come up? Is knowing that I’m going to get to that point enough for them to act, or is me having really to come in with a uterus in danger? Is that the line that we have to draw?”

Republican state Sen. Bryan Hughes, the author of SB8, said he finds stories like the Wellers’ concerning.

“A doctor should follow the standard of care, and the standard of care and Texas law says if the mother’s life is in jeopardy, or serious risk to a major bodily function, which clearly would be the case you just described,” he said. “The doctors should do their duty to treat their patient. Nothing in Senate Bill 8, nothing in Texas law, prevents the doctor from giving that treatment.”

He said he has reached out to the Texas Medical Association and other medical groups to clear up confusion about the law and is considering making the statute more specific. “When the Legislature comes back into session, we’ll be looking at that,” he said.

Since the Roe v. Wade decision, doctors look at what’s happening in Texas as a preview of what could come in states with bans, like Wisconsin.

“I don’t think it’s just a warning,” said Crow, Melissa Janssen’s doctor. “It’s a clear indication of what is coming.”

In Janssen’s case, Crow knew that terminating the pregnancy was the best treatment both medically and ethically, and he wasn’t going to give up easily.

Crow consulted with two other physicians, who agreed that terminating the pregnancy was the best course. The hospital eventually approved, too. But it still took hours of waiting before Crow could act.

“I’ll be damned if some law is going to stop me,” he said he remembers telling Janssen. “I don’t know what the consequences will be, but if it means someday this goes all the way to the Supreme Court in Wisconsin, then so be it.”

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