Missouri doctors fear vague emergency exception to abortion ban puts patients at risk
One doctor worried the ambiguity could leave physicians ‘looking over our shoulders wondering if a patient is in enough of a crisis to permit an exception to a law’
Demonstrators rally before the U.S. Supreme Court, which overturned Roe v. Wade, the landmark case that found Americans have the right to an abortion. Missouri doctors worry the state’s new abortion ban could put women with high-risk pregnancies in danger. (Robin Bravender/States Newsroom).
Some Missouri medical providers are fearful that patients with high-risk pregnancies will face delayed care in life-threatening situations because doctors fear prosecution under Missouri’s newly-enacted abortion ban.
“I’m following the rules that are made by people that have no understanding of medicine and science, and that’s extremely, extremely dangerous,” said Iman Alsaden, a doctor and medical director of Planned Parenthood Great Plains.
Under the new law, which went into effect last week after the U.S. Supreme Court overturned Roe v. Wade, abortions are now illegal in Missouri. There are no exceptions for rape or incest.
The procedure is only permitted in a medical emergency, which state law defines as necessary to save the patient’s life or “for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
Health care providers who violate the ban can be guilty of a class B felony, which can result in five to 15 years in prison, and suspension or revocation of their medical license.
But physicians and experts say the statute is so vague that doctors aren’t sure what they can do in the case of some potentially deadly pregnancy complications. Jeannie Kelly, a maternal fetal medicine specialist at Washington University in St. Louis and the medical director of labor and delivery, said there’s concerns physicians will be left feeling “paralyzed” out of fear.
“I am worried that people will sit on very sick, pregnant patients longer than they should, in fear of being prosecuted,” Kelly said. “This isn’t just our licenses, this isn’t malpractice. This is a criminal felony charge with jail time.”
Kelly said doctors may need to terminate a pregnancy in cases of uterine infection, hemorrhaging, ectopic pregnancies or severe preeclampsia — all conditions that can result in death or irreversible harm.
During a virtual town hall with U.S. Congresswoman Cori Bush Thursday night, Colleen McNicholas, chief medical officer of Planned Parenthood of the St. Louis Region and Southwest Missouri, said the exceptions to Missouri’s abortion ban will inevitably lead to dangerous delays in care and “put providers in impossible situations.”
“In order for doctors to avoid prison time, instead of treating a patient before their health condition becomes life threatening, doctors are now contemplating how sick is sick enough before I can provide life-saving care,” McNicholas said. “Care will be delayed and people will suffer unnecessary harm as doctors wait for permission from hospital lawyers to tell them that they can proceed.”
Lisa Larson-Bunnell, a healthcare regulatory attorney with a Missouri hospital, said the confusing statute may cause doctors to delay life-saving care if they don’t think a patient is near enough to disaster.
“It absolutely could mean that there’s going to be delays of care until somebody has essentially gotten worse, gotten much worse,” Larson-Bunnell said.
Medical practitioners say the law is too vague and doesn’t account for the myriad issues that can arise during pregnancy and the speed with which a healthy pregnancy can turn dangerous.
“Though someone may seem fine one minute, if you wait long enough, you know, they’ll really tank,” Alsaden said.
Not only that, lawyers who have analyzed Missouri’s new abortion ban disagree over what the abortion ban prohibits.
Larson-Bunnell said the law lacks a definition of pregnancy. Does it begin at conception? Implantation? Is it measured the same way as gestational age?
“And it might seem to you, and I think a normal person, as, ‘Well duh, a pregnancy, is a pregnancy,” Bunnell said.
But how pregnancy is defined weighs heavily on whether an abortion is legal in an ectopic pregnancy or other emergency situations.
Larson-Bunnell said a woman can have an incomplete miscarriage where a fetus is dying and cannot be saved but might still have heart tones. At the same time, a pregnant woman can be bleeding severely.
She said even a layperson would likely think that’s an emergency. But the statute is narrow and unclear because abortions are only allowed to avert immediate death or serious injury.
One law firm, Spencer Fane, interpreted the law to be so strict as to outlaw Plan B and intrauterine devices, or IUDs. Attorney General Eric Schmitt’s office clarified Wednesday that “Missouri law does not prohibit the use or provision of Plan B or contraception.”
“I think that (Spencer Fane is) trying to show that this is so vague, that there are all of these consequences that can come from it and here is one really extreme way that you can interpret the statute,” Larson-Bunnell said.
Saint Luke’s Health System in Kansas City released a statement expressing the gravity of the situation.
“The ambiguity of the law and the uncertainty even among state officials about what this law prohibits continues to cause grave concern and will require careful monitoring,” the statement said. “This is especially true because the penalty for violation of the statute includes the criminal prosecution of health care providers whose sole focus is to provide medically necessary care for their patients.”
Missouri’s abortion ban will not alter the way providers treat an ectopic pregnancy, said Leslie Carto, a spokeswoman for University Health, Kansas City’s safety net hospital and the teaching hospital associated with the University of Missouri-Kansas City.
Maureen Phipps, CEO of the American College of Obstetricians and Gynecologists, told reporters last week that overturning Roe v. Wade “will leave physicians looking over our shoulders wondering if a patient is in enough of a crisis to permit an exception to a law.”
There are very few situations where a true black-and-white line exists in medicine, said Kelly, at Washington University in St. Louis.
“Potentially per one physician or one lawyer, they fall under that exemption,” Kelly said, “but potentially by someone else’s opinion, they don’t.”
As a high-risk obstetrician, Kelly said she often treats patients with conditions in which the fetus would not survive to term or would lead a short and difficult life after birth. In those instances, some families choose to continue with the pregnancy, whereas others prefer to seek an induction abortion that allows them to deliver and hold their child.
“This is just part of their grieving process,” Kelly said. “And unfortunately because of this ban, this is no longer an option for any patient in the state of Missouri.”
I worry a lot about people that do have those pre-existing conditions and whether they are going to be able to find abortive care.
– Lisa Larson-Bunnell, a healthcare regulatory attorney with a Missouri hospital
Meanwhile, Katy Liu, a family medicine doctor in St. Louis, isn’t as worried about the complexity.
Liu belongs to the American Association of Pro-Life Obstetricians and Gynecologists. She does not support elective abortions when both pregnant woman and fetus are healthy. But she has performed abortions or administered drugs to patients with ectopic pregnancies and other complications.
She believes ectopic pregnancies, infections and miscarriages fall under the exemption and are “clear cut” cases of when a physician could induce labor or terminate the pregnancy based on the gestational age of the fetus.
“I can’t imagine people saying we have to delay it to the point of life or death before we intervene,” she said, adding that she understands the concerns about specificity in the law.
Treatment for an ectopic pregnancy, she said, is terminating it soon after it’s discovered.
“This is not the same as elective abortion where the goal is to end the baby’s life,” Liu said. “The goal is to save the mom in a situation where if nothing is done, both lives would be lost.”
Liu said some additional clarity could be helpful.
It’s also unclear whether a woman diagnosed with cancer during pregnancy could have an abortion in order to receive chemotherapy or radiation.
Larson-Bunnell said she couldn’t give advice on what the statute means in that situation, but she said it’s a question experts are wondering about. She also worries about children who are raped given the abortion ban doesn’t include an exemption for rape victims. Pregnancy, she said, is very difficult on young bodies.
“I worry,” she said. “I worry a lot about situations like that. I worry a lot about people that do have those pre-existing conditions and whether they are going to be able to find abortive care.”
“I don’t know the answer.”
Liu said a former teacher of hers found out during her pregnancy that she had a brain tumor. The teacher postponed treatment and delivered the baby early. The baby survived and she went into remission.
If a woman found out she had a more aggressive cancer and was early in pregnancy, Liu said it wouldn’t run afoul of her beliefs for the woman to have an abortion. While it’s not an immediate medical emergency, Liu said she thought it would be permissible under Missouri’s abortion ban.
It’s not clear whether that’s true.
Besides medical complications, Alsaden said the law ignores mental health. For example, a person with bipolar disorder may take lithium to treat it. But the medication can cause birth defects.
“And so should that person come off their lithium to continue this pregnancy and risk their mental health?” Alsaden said, adding that discontinuing medication can be “life-threatening and dangerous” for people with mental health issues.
Life and death stakes
Over a dozen states have abortion bans in effect or set to soon go into effect, and the increasing restrictions come at a time when the number of maternal deaths in the U.S. have been on the rise.
Over 500 public health and reproductive health experts in an amicus brief filed with the U.S. Supreme Court wrote that: “Put simply, women living in states with the most restrictive abortion policies — and thus the least abortion access — were found to be more likely to die while pregnant or shortly thereafter than women living in states with less restrictive abortion policies, regardless of state-to-state differences in poverty, race/ethnicity, and education.”
Iffath Hoskins, president of American College of Obstetricians and Gynecologists and a maternal fetal medicine specialist, said during a press briefing last week that a woman can develop complications early in pregnancy that may worsen if she is forced to carry the fetus until the pregnancy becomes life-threatening enough for an abortion to be permitted. That may increase the patient’s risk of dying.
Missouri’s maternal mortality rate ranks 44th nationwide, and Black women and women on Medicaid are both four times more likely to die within one year of pregnancy.
Kelly said she’s concerned Missouri’s ban will only worsen those disparities, and McNicholas warned against what’s to come.
“We cannot allow ourselves to adapt to this new normal,” McNicholas said. “Allowing people to slip into avoidable near-death situations is not normal.”
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