Emergency abortion care leaves legal questions unanswered

Almost a year since the landmark Supreme Court ruling that allowed states to ban abortion, confusion and fear reign as clinicians confront the risks of criminal charges amid evolving rules and uneven enforcement of laws that sometimes contradict each other.

“We have chaos, and we just have to live with the chaos,” said Harvard Law School professor and former Maine Attorney General James Tierney (D). “Physicians and hospitals are very nervous. They don’t know what to do.” The legal cases that ensue will take years to litigate, and the underlying uncertainty isn’t likely to abate until the high court weighs in again.

Providers warned that sweeping abortion bans would limit their medical arsenal and harm patients beyond those seeking to terminate unwanted pregnancies. Those predictions are bearing out in states with the strictest limits on abortion care. Hospitals are actively reviewing abortion to conform with new laws. During emergencies, that includes determining when a patient’s life is at-risk enough to warrant an abortion, a practice at odds with standards of care and with federal law.

In Texas, where abortion is banned at all stages of pregnancy without exceptions for rape or incest and is punishable by a life prison sentence and civil penalties up to $100,000, a woman 18 weeks pregnant with a nonviable fetus was told she would have to carry the pregnancy or leave the state to seek an abortion, according to a lawsuit filed by five patients and the Center for Reproductive Rights. In Missouri, where abortion is completely banned except when necessary to save the mother’s life, federal authorities allege a hospital refused to perform an abortion after a patient’s amniotic membrane ruptured when she was 18 weeks pregnant, risking infection, hemorrhage and death.

These incidents have sparked lawsuits and federal investigations that seek to clarify how doctors should proceed during emergencies. Some states are also backpedaling on tough abortion laws in response to backlash. Rather than promote clarity, however, policy shifts tend to reinforce the threat of legal repercussions.

State, federal laws conflict

State laws restricting abortion are colliding with federal law, as interpreted by President Joe Biden’s administration, in clinical settings. In August, Freeman Health System in Joplin, Missouri, and the University of Kansas Hospital in Kansas City, Kansas, each declined to perform an abortion on a patient who required emergency stabilization, in accordance with state laws.

Then the Centers for Medicare and Medicaid Services declared the hospitals had violated the Emergency Medical Treatment and Labor Act of 1986 by doing so, although federal authorities have not penalized them. This was meant as a warning to all hospitals that federal laws supersede state laws, Health and Human Services Secretary Xavier Becerra wrote to hospitals May 1.

“While many state laws have recently changed, it’s important to know that the federal EMTALA requirements have not changed, and continue to require that healthcare professionals offer treatment, including abortion care, that the provider reasonably determines is necessary to stabilize the patient’s emergency medical condition,” Becerra wrote.

Nevertheless, state governments are pressing on. North Carolina’s Republican-led General Assembly passed a bill to ban abortions after 12 weeks this month. Gov. Roy Cooper (D) vetoed the measure on Saturday, but the legislature voted to override his veto on Tuesday.

The newly minted North Carolina law uses an arbitrary timeline and doesn’t account for medical conditions that can emerge during pregnancy, said Dr. Beverly Gray, division chief of women’s community and population health at Duke Health in Durham. “There are so many things that are unclear in this legislation as it’s written, it will make it very challenging for healthcare providers to interpret it, to understand who will merit care after 12 weeks and who won’t,” she said.

Other states are instituting wraparound laws to make it difficult to receive abortions in states where it remains legal. Last month, Idaho passed a first-in-the-nation law that forbids anyone from helping minors travel to other states to receive abortions. Legislatures in Arkansas, Missouri, South Dakota and Texas are considering similar policies.

These laws threaten to prosecute doctors practicing in states where abortion is legal, and raise constitutional questions on the interstate commerce clause and federalism that could have consequences beyond abortion, said David Honig, a healthcare attorney at Hall Render.

Backtracking

New measures emerging from state legislatures aim to anticipate emergency abortion care. But these proposals and new laws fail to provide the clarity providers need, which will lead to unintended consequences, Honig said. And states will continue tinkering with their abortion policies, extending the uncertainty, he said.

Last month, Tennessee amended its total abortion ban to say doctors may use “reasonable medical judgment, based upon the facts known to the physician at the time” to perform abortions when necessary to prevent harm during ectopic and molar pregnancies.

The Tennessee law does not create a blanket exemption for ectopic and molar pregnancies, but merely offers a potential legal defense for physicians who perform emergency abortions. As such, it’s unlikely to diminish reluctance on the part of doctors confronted with patients who may need abortions to preserve their lives or health, Honig said. “It is not enough to know that eventually you may be acquitted if people accept your affirmative defense, if you are subject to a criminal prosecution,” he said.

In Louisiana, the “trigger law” that predates the Supreme Court ruling requires the health department to develop a list of conditions that warrant exemptions to the state’s abortion ban, to which the agency is already scrambling to add exceptions that cover more circumstances.

Prosecutorial discretion

Perhaps the most significant question is how prosecutors in different jurisdictions will choose to enforce abortion laws. When the Supreme Court’s Dobbs v. Jackson ruling granted states the authority to enact abortion bans and restrictions, local district attorneys gained wide discretion, Tierney said.

“There is no way to predict anything on the criminal side at all,” Tierney said. Prosecutors will approach these cases differently based on their views on abortion rights, he said. For example, Nashville District Attorney Glenn Funk (D) will not prosecute doctors under Tennessee’s abortion ban.

“We live in a country of elected prosecuting attorneys,” Honig said. “Each of them does their job as required by their state constitution, their individual mandate and their constituency.”

That creates political tension for doctors in fast-paced critical care settings, Honig said. “Emergency room physicians don’t have time for that. They’re just trying to take care of the people that are coming through the door.”