HealthNovember 17, 2023

How abortion bans prevent clinicians from providing essential women's health care

With the U.S. Supreme Court’s ruling on Dobbs v. Jackson reversing Roe v. Wade, OB-GYNs and other clinicians providing women’s health must suddenly understand many quickly evolving state and local laws. How can physicians “at first do no harm” without risking lawsuits and even imprisonment? What can clinicians do to navigate the risk to themselves and their patients?

Making sense of state laws restricting abortion

Some states have exceptions for abortions in “medical emergencies” but, as the American College of Obstetricians and Gynecologists (ACOG) explains in “Understanding and Navigating Medical Emergency Exceptions in Abortion Bans and Restrictions,” since clinicians often “make medical decisions in gray areas [with] unique medical considerations,” many are confused about what constitutes an “emergency”:

“How sick is sick enough to intervene? [Clinicians] know how to provide evidence-based and lifesaving care for their patients based on years of training and experience, [so] it is impossible for a law to appropriately capture how or whether a ‘medical emergency’ exception applies. [...] There is no uniform set of signs or symptoms that constitute an ‘emergency.’”

As Bridget Balch writes for the Association of American Medical Colleges, the varied language in these laws makes interpretation difficult for clinicians. In Idaho, for example, “an abortion is legal if the physician determines in ‘good faith [...] that the abortion was necessary to prevent the death of the pregnant woman,’” while in Texas, laws necessitate “a life-threatening condition ‘aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or [...] substantial impairment.’”

Do these laws permit abortion when pregnancy complicates a health condition but is not itself the threat to life? In “Abortion rights are health care rights,” Enze Xing et al. ask:

“How high and imminent must the risk of death be before treatment is allowed? [...] Due to the teratogenic nature of many oncological treatments, therapies may be withheld from these patients while pregnant. For these patients, the risk of death can be dramatically reduced by abortion and immediate cancer treatment; however, life-saving treatment may be delayed for months or even years.”

The ACOG emphasizes the danger of “a finite list of conditions to guide the practice of clinicians attempting to navigate their state's abortion restrictions” because “a patient may experience a combination of medical conditions or symptoms that, together, become life-threatening” and “pregnancy often exacerbates conditions [that] are stable in nonpregnant individuals.”

Do federal laws on patient safety override state laws restricting abortion?

Despite exceptions for abortions in cases where the pregnant patient’s life is at risk, says Balch,

“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. [In actuality,] 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.”

It is crucial to understand superseding federal laws on patient safety. Per the Emergency Medical Treatment & Labor Act (EMTALA), federal law indicates:

  1. “Hospitals must provide an appropriate medical screening examination to determine whether an emergency medical condition exists or whether the person is in labor.”
  2. “If an emergency medical condition is found to exist, the hospital must provide available stabilizing treatment or an appropriate transfer to another hospital that has the capabilities to provide stabilizing treatment.”
  3. EMTALA “requires that all patients receive an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures” including abortion.

Clinicians may not understand that EMTALA overrides state laws, but Balch cites a case where Idaho’s “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 [was] endangered because the law conflicts with EMTALA.”

The impact of Roe v. Wade’s reversal on women’s essential health care

Balch mentions that the bans have led some physicians “to leave states with abortion restrictions, or even the field of OB-GYN altogether.” Balch quotes a 2023 survey that found that 68% of OB-GYNs surveyed said Dobbs “worsened their ability to manage pregnancy-related emergencies” and 40% of OB-GYNs practicing in abortion-restrictive states “felt constrained in their ability to manage miscarriages and pregnancy-related medical emergencies.”

Surprisingly, patients who experience miscarriage are also at risk of punishment as, Xing et al. explain,

“Spontaneous pregnancy loss is clinically indistinguishable from medication-induced abortion [so] patients presenting with bleeding in pregnancy or pregnancy loss are vulnerable to the threat of reporting, arrest, and detention. [...] Despite the lack of legislation requiring reports of suspected self-managed abortion, health care providers have already been demonstrated to be more likely to report pregnant patients who are Black or low income.”

Xing and the other authors say that OB-GYNs “will no longer receive training in pregnancy termination [or] miscarriage management,” limiting patient access to “appropriate surgical management” for either. Patients, they explain,

“Have reported being denied medical and surgical interventions [...] and having to carry their dead fetuses for weeks, sometimes until they were actively febrile. One patient, [a nurse], stated she ‘[fought] with the doctors for a while, but none of them would help me until I was actively sick. I was just dumbfounded. Especially as a nurse, no one comes into an E.R. and we wait to see how sick they can get.’”

Dobbs causes issues for those seeking medical abortions as well as people with unrelated conditions. Xing et al. mention “multiple reports of patients being denied access [by pharmacists] to necessary medications such as methotrexate, misoprostol, and mifepristone,” which not only treat “ectopic pregnancy, miscarriage, and induction of medical abortions, [but] are also routinely used in the management of chronic diseases.”

How can doctors provide care for patients while following laws limiting abortion?

Xing et al. mention that “primary care providers will be on the front lines [for providing] reproductive health care, including contraception counseling, evaluation and diagnosis of pregnancy, and pregnancy options counseling.” They suggest ways for clinicians to care for their patients in light of these restrictive laws, emphasizing that “it is the duty of all medical providers to put aside personal values to prioritize the well-being of our patients”:

  1. “Create a nonjudgmental space for patients to disclose [their] concerns.”
  2. Be “aware of resources within the community.”
  3. “Trust that our patients know what is best for them and empower them to take charge of their reproductive health. [Advocate] for our patients and support them in making the best decisions for themselves.”
  4. “Remain up to date on the management of early pregnancy and abortion complications.”
  5. “Provide the necessary medical care to patients in a timely fashion and avoid reporting patients to authorities, leaving them vulnerable to prosecution. This burden will mostly be felt by people from historically marginalized communities.”
  6. Consider harm-reduction models, promoting “self-administration of misoprostol as opposed to abdominal trauma or self-instrumentation [to reduce] maternal mortality. [Consult on] pregnancy options [with follow-ups] to monitor for medical complications or ongoing pregnancy.”

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