People Will Still Die In Anti-Abortion States That Have ‘Lifesaving’ Exceptions

Strict anti-abortion laws often include an exception when abortion can save a patient, but some life-or-death scenarios are not so black and white.
At what point is the life of the mother endangered enough to perform an abortion? Who gets to decide?
At what point is the life of the mother endangered enough to perform an abortion? Who gets to decide?
Illustration: Damon Dahlen/HuffPost; Photos: Getty

In late October 2012, a 31-year-old woman visited a hospital in Galway, Ireland, for the second time that day, complaining of terrible pain. The medical staff informed her she was miscarrying her pregnancy at 17 weeks. Their plan was to wait for her body to expel the fetus naturally.

The following day, the still-hospitalized woman asked about getting an abortion but was told that under Irish law she could not terminate the pregnancy until a fetal heartbeat could no longer be detected in her womb. She and her husband continued to wait until her teeth started chattering — she was cold. A few hours later, she began vomiting. Over six hours then passed before the woman was diagnosed with sepsis and permitted a medication abortion, but the medicine was never delivered because she went into “spontaneous delivery,” according to a subsequent investigation.

She was moved to an operating room. Then a high-dependency unit. Then an intensive care unit. Several days later, she went into cardiac arrest and died.

The death of Savita Halappanavar helped mobilize the movement against Ireland’s strict anti-abortion rules, which voters discarded in 2018. Now that the U.S. Supreme Court has decided against nationwide abortion access, reproductive rights advocates worry about Americans whose pregnancies may similarly put their lives at risk.

Like Ireland used to, several U.S. states with strict anti-abortion laws have carved out exceptions to preserve the life of the mother, but these “mainly serve to make a draconian policy seem slightly less cruel,” according to the Guttmacher Institute, a research institute that advocates for reproductive rights. One OB-GYN wrote a New York Times opinion article calling such exceptions “medically illiterate.”

They can be found in states like Missouri, Kentucky, South Dakota, Louisiana and Texas, among others, although some have been affected by ongoing litigation and some won’t go into effect for a few more days.

In practice, medical decisions involve weighing risk and potential outcomes, including death. If a pregnant patient receives a cancer diagnosis, for example, the patient may wish to end the pregnancy in order to start treatment at the earliest possible point, which could have a huge effect on their lifespan. There are plenty of other situations in which a pregnant patient may not be in imminent danger but is developing a dangerous condition.

At what point is the life of the mother endangered enough to perform an abortion? What level of risk is acceptable or unacceptable? Is mental health a factor? Who gets to decide?

Dr. Lisa Harris, a researcher and professor of obstetrics and gynecology at the University of Michigan, told HuffPost one example she uses to illustrate the risks is pulmonary hypertension, where “the heart and lungs really just can’t continue to work properly and meet the demands of pregnancy,” potentially leading to heart failure.

“We tend to cite a 30 to 50% chance of dying for people who continue the pregnancy,” Harris said.

“They might actually be OK in the early parts of the pregnancy. But there’s really profound changes that happen in the way the heart and lungs work and the way that the fluids in the body work after delivery,” she went on. “So they may be able to actually deliver a baby, but in those moments right after birth, there’s so many shifts in the fluid and all the blood flow that was going to a placenta and a baby that now is in the woman’s own body and that can produce heart failure and an inability to oxygenate the body.”

“It’s not 100%. Some women will survive,” Harris said, adding: “Is that a high enough percent chance of dying that a woman could request an abortion?”

Pointing out that America already has a high maternal mortality rate, Dr. Iffath Hoskins, president of the American College of Obstetricians and Gynecologists (ACOG), said in a news conference last week that abortion bans with narrow exceptions will only increase that statistic. By how much is difficult to say; if the U.S. enacted a total abortion ban, the country’s maternal mortality rate would increase by 21%, according to researcher Amanda Stevenson.

A pregnant person may be slightly more likely to die based on where that person lives, as some areas are better equipped to handle pregnancy than others. The patient’s race also factors in: Black women die in pregnancy and childbirth at much higher rates than white women.

Compounding matters, the exceptions to strict anti-abortion laws tend to be written in vague terms; lawmakers have refused to define key phrases such as “medical emergency” or “substantial risk of death” in some states, leaving it up to a doctor’s “good faith” judgment on when a patient crosses the line into needing an abortion.

Abortion, after all, is generally an extremely safe path.

Medical and legal experts worry doctors are not prepared for the impending confusion wrought by laws varying widely among the states. Confusion can mean delay, and delay can mean death or significant injury.

“It is a real patchwork out there, and that patchwork itself is a danger to people as they seek essential reproductive health care. If a doctor can’t tell what the law is at the time they’re trying to provide the care, it has a terribly chilling effect on the medical care provided,” ACOG lawyer Megan Meegan said last week.

For doctors ― largely a risk-averse group ― the consequences of making the wrong decision range from disciplinary measures by their employer to losing their license, facing lawsuits and even criminal penalties, which are not covered by malpractice insurance.

Doctors may also have different professional opinions, leaving open the possibility for state prosecutors to argue that an abortion was not warranted because not all consulting physicians agreed the patient’s life was sufficiently at risk.

“It is a real patchwork out there, and that patchwork itself is a danger to people as they seek essential reproductive health care. If a doctor can’t tell what the law is at the time they’re trying to provide the care, it has a terribly chilling effect on the medical care provided”

- Megan Meegan, lawyer for the American College of Obstetricians and Gynecologists

“It’s just another feature of medicine. Doctors always disagree, right?” Harris said.

In some places, like Missouri, the onus of justifying an abortion is on the medical providers themselves, shifting the burden of proof from state prosecutors to the shoulders of already overburdened health care workers.

As a result of these harsh new restrictions, for some who are pregnant, whether or not they can get an abortion will likely be decided by hospital attorneys.

It already happens. Dr. Lori Freedman, a reproductive science professor at the University of California, San Francisco, told HuffPost that many hospitals have restrictions on abortion in place that are “more narrow than the law.”

“And then they have certain authorities they have to run their case by,” such as a hospital lawyer and a hospital chairperson, she said.

Dr. Jen Gunter, who wrote the Times editorial, recalled the absurd situation she found herself in while treating a woman in her first trimester who was at risk of kidney failure. Saving the woman’s kidneys “would prevent a cascade of medical events that could end her life prematurely in the long term,” Gunter wrote. Under Kansas law, however, she was uncertain whether the woman’s life was endangered enough for an abortion to be legal, so she called the hospital’s attorneys, who also did not know. The attorneys set her up on a call with the legislator who created the state’s abortion policy and who quickly told her to go ahead with whatever course of action she thought was best.

The situation could have easily gone differently, Gunter said.

ACOG’s CEO, Dr. Maureen G. Phipps, voiced concern about such scenarios last week, saying that such narrow exceptions “allow state legislators to tell physicians what care they can and can’t provide to their patients.”

Abortion restrictions are not new for religiously affiliated hospitals ― arguably to the detriment of quality health care for pregnant patients. Religious facilities commonly have ethics committees guided by theology that decide whether an abortion may be warranted to save the patient’s life, Freedman said.

But with more states adopting extreme bans within their borders, patients have fewer options. If a Catholic hospital refused to terminate a pregnancy because the patient’s life was not sufficiently endangered, the patient who could previously transfer to a different hospital to end their pregnancy no longer has that choice when every facility in the state can only provide an abortion under the same narrow circumstances.

Plus, Harris told HuffPost that she has heard “countless stories” about religiously affiliated hospitals that have strict rules against ending pregnancies unless it’s an emergency. People at risk of infection due to ruptured membranes may have to wait until the infection arises.

“So even though it would be predictable that over time someone’s outcome would be worse, health care teams wait for the person to get worse rather than treat them early,” she said.

“There needs to be space for women’s values and preferences,” Harris argued,
“and to be part of these decisions along with their loved ones.”

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