Lack of clarity in state abortion laws creates uncertainty for doctors

·Reporter/Producer
·8 min read

At least 12 states, many of which had so-called trigger laws in place, have completely banned or severely limited abortions since the Supreme Court overturned Roe v. Wade, the 1973 decision that established abortion as a constitutional right.

But more states are expected to ban the procedure. According to the Guttmacher Institute, a think tank that supports abortion rights, 26 states are certain or likely to ban abortion now that Roe has been repealed.

Many of the abortion laws that went into effect after the reversal of Roe on June 24 make no exceptions for rape or incest. The only exception carved out is one that allows the termination of a pregnancy to preserve the life and health of the mother. However, in some states, these exceptions are even narrower, allowing abortion only in cases of medical emergencies. But what constitutes an emergency, doctors say, is not clearly defined in any of the legislation.

The ambiguity in the language used in these provisions has raised concerns among doctors, legal experts and abortion advocates. They say these laws complicate medical decisions for pregnant women and therefore increase their risk of death, in a country whose maternal mortality rate is already the highest among developed countries.

Dr. Lisa Harris, an ob-gyn and medical ethicist at the University of Michigan, Ann Arbor, told Yahoo News that the “language is vague to the point of being meaningless.”

“I think the language is intentionally vague to scare doctors into not doing abortions. I think that the people who write these want them to be used as little as possible, if ever,” said David S. Cohen, a law professor at the Drexel Kline School of Law in Philadelphia.

Dr. Jen Villavicencio, an obstetrician-gynecologist who leads equity and inclusion efforts at the American College of Obstetrics and Gynecologists (ACOG) said that because those who write anti-abortion laws are not medical experts, the restrictions are often not based in science.

“The language is often incorrect, not clinically meaningful, and therefore confusing to those practicing medicine,” Villavicencio said. “I worry so much that instead of being able to dedicate all of my expertise, mental energy and attention to treating my patient in front of me, I have to also think about whether or not I will face consequences, some criminal, for offering the most appropriate, individualized and evidence-based care.”

The method for enforcing almost all the laws is to prosecute the medical professional performing the abortion. In Missouri, for example, doctors who break the law could face up to 15 years in prison and have their license revoked or suspended.

An anti-abortion activist props up two signs saying, in part, Abortion, outside the Supreme Court.
An anti-abortion activist protests outside the U.S. Supreme Court on June 27, 2022, in Washington, D.C. (Kevin Dietsch/Getty Images)

The anti-abortion laws, doctors say, do not make it clear when a physician can determine that a mother's life is in danger, and how great the risk of death must be before a doctor can act. They also don't reflect medical realities.

Villavicencio explained that the progression of pregnancy and the complications associated with it are usually gradual. “In some cases, the life of a pregnant person may indeed be imminently in danger, but in other cases, that line may be harder to identify,” she said, adding that the laws also don’t take into account “the varying risk thresholds of the individual patients.”

Harris agreed, saying that “medicine is all about nuance and subtle judgment calls.”

“The idea that we need to be 100% certain or have a very high level of certainty that someone would die, that just doesn't fit with how medicine works, because there will always be someone who's had an isolated, different experience,” she said.

She added that a doctor’s goal is always to intervene earlier in a process rather than later, when something has already gone wrong. “If someone has an infection, you want to treat them very early in the course of their infection, you don't want to treat them when they are septic and having multiple organs fail, because it's very hard and sometimes impossible to reverse the process then," Harris said, adding that these abortion laws “don't seem to allow for early, rather than late intervention.”

In states where abortions were recently banned, doctors and their patients are already facing difficult situations. In Missouri, there have been reports of health care providers who have had to delay medical treatment for ectopic pregnancies, due to confusion over whether or not this is allowed under the state’s new abortion law.

In an ectopic pregnancy, a fertilized egg is implanted outside the uterus, usually in a Fallopian tube. Such pregnancies are not viable, and if left untreated, can cause the tube to burst, causing major and potentially life-threatening internal bleeding.

Harris explained that early treatment is essential in ectopic pregnancies but that the new abortion laws leave some doctors uncertain whether they can legally operate on their patients.

“If you diagnose an ectopic pregnancy at five or six weeks, but the risk of rupture isn't until eight or 10 or 12 or 14 weeks, which happens sometimes with certain kinds of ectopic pregnancies, can you go ahead and treat that?” she said.

Harris says some uncertainty remains whether terminating an ectopic pregnancy should be considered an abortion.

“In my estimation and people in the institution where I work, an ectopic pregnancy is never an abortion because it's never a pregnancy that could continue to result in birth. But that's not how everybody's interpreting it,” Harris told Yahoo News.

The Michigan ob-gyn said that on Saturday, her colleague treated a patient who was diagnosed with an ectopic pregnancy in a state where abortion had just become illegal.

“The care team in that other state would not treat the ectopic pregnancy, and they needed to come here,” Harris said.

An abortion rights protester holds a sign saying, Ohio, Keep Abortion Safe & Legal!!
Supporters of abortion rights protest on June 24, 2022, at a rally in Columbus, Ohio, after the Supreme Court reversed the landmark Roe v. Wade decision. (Reuters/Megan Jelinger

In Ohio, following the SCOTUS ruling, a federal judge lifted a three-year-old block on an anti-abortion law, dubbed the “heartbeat bill,” which bans abortions at six weeks, a time when fetal cardiac activity is usually detected but when many women don’t even know they are pregnant.

Dr. David Hackney, who practices medicine in the Cleveland area, is a maternal fetal medicine specialist and Ohio chair for the American College of Obstetrics and Gynecologists. He told Yahoo News that he was on call for emergencies last weekend when the “heartbeat bill” became law on Friday evening.

“I'm the person who, if not performing the abortion myself, I’m usually standing at the center of the medical decision making. It's a Friday night, and all of a sudden, the legal ground has entirely changed beneath my feet,” he told Yahoo News.

Hackney said that although he knew about the bill and was expecting it to go into effect after the ruling, he hadn’t realized it could happen so quickly. He also said there was no buffer or waiting period to prepare and determine how to comply with the new law.

“I am not [a] lawyer, you know. I've read the bill, but it's not my area of expertise to try to interpret [the law]. We really need counsel to do so, and a counsel, in turn, needs time to interpret it and come up with an opinion,” he said.

Hackney, a high-risk obstetrician, said his biggest fear last weekend was to receive a patient who needed immediate attention and not to be able to help her.

“My thoughts were ‘What if I have a pregnant patient going into heart failure tomorrow?’ I mean, it's uncommon, but it certainly happens,” he said. To date, he and his hospital are still working out the details and trying to figure out processes, as are other physicians across the state, he said.

Another concern for Hackney and other medical providers is that, in their view, many of the abortion laws in their states don’t carve out exceptions for fetal anomalies. This means that the mother may be forced to carry and give birth to a fetus that has no chance of living outside the womb.

“If I have a perfectly healthy mother and there is, say, the worst of the worst in terms of birth effects, you know, lethal anomalies, lethal genetic conditions. Sometimes you have anencephaly, where the child has no brain at all. My understanding is that there are essentially, no fetal circumstances in which an abortion can be performed,” Hackney said.

Harris said that there is no question that carrying to term a pregnancy with a baby that has no chance of living after birth involves more risk to the mother than ending the pregnancy.

She told Yahoo News that data from the Centers for Disease Control and Prevention has shown that the risk of dying from childbirth is 50 to 130 times greater than dying from an abortion. For women of color, Harris said, that risk is “two to three, even a little more than three times greater than for a white woman giving birth.”

In an article published in the New England Journal of Medicine, Harris wrote that, in a post-Roe world, maternal mortality will likely “increase, because abortion is far safer than childbirth.”

At the moment, she said, care for pregnant women will depend on the level of risk a doctor is willing to assume.

“There's uncertainty that will result in harm to pregnant women and likely preventable death,” Harris said.