Doctors in abortion-ban states fear prosecution for treating patients with life-threatening pregnancies

Dr. Nikki Zite explained the situation to her patient: Her pregnancy could kill her.

The 37-year-old patient, who was nine weeks along, had suffered damage to her heart during her last pregnancy, and her chances of heart failure this time were somewhere between 25% and 50%.

With three children to raise, the patient decided that was a risk she could not bear. Zite performed an abortion.

That was in 2018. Today, the Tennessee obstetrician-gynecologist isn’t sure terminating such a pregnancy would even be legal.

Like the other 11 states that have already banned abortion since the Supreme Court overturned Roe vs. Wade last month, Tennessee makes an exception when a pregnant person’s life is in jeopardy. But that determination often comes down to a judgment call.

How much risk is enough to justify an abortion? What if a patient develops a dangerous infection like sepsis? What if their kidneys show signs of failure? How long is it necessary to wait to see whether things improve?

The laws are vague on those questions. In Tennessee, doctors must prove “by a preponderance of the evidence” that an abortion is “necessary to prevent the death of pregnant woman or prevent serious risk of substantial and irreversible impairment of major bodily function.”

Zite said her hospital in Knoxville now requires at least two physicians to agree an abortion is warranted.

“I fully intend to follow the law, but I worry about my interpretation,” she said. “Even if the whole hospital team agrees, I don’t have assurance that the attorney general will agree.”

She recently took an American Board of Obstetrics and Gynecology exam to update her credentials, and though she knew the correct answers regarding medically necessary abortions, it occurred to her that following those standards might now be illegal in her state.

“Until someone is arrested, we won’t know what these laws mean,” Zite said. “That’s a hard way to practice medicine.”

The penalties for doctors can be severe, with fines up to $100,000 and prison sentences as long as 15 years — with Texas set to make the maximum punishment life behind bars.

In interviews, doctors said that fears of prosecution are muddling their ability to exercise their medical judgment.

“The scrub tech, the nurse, and the anesthesiologist could all go to jail if they make the wrong call,” said Dr. Rebekah Gee, a gynecologist who headed the Louisiana Department of Health from 2016 to 2020. “I went to Harvard and Cornell and spent eight years refining my clinical judgment, and now a lawyer with no medical knowledge is deciding a patient’s fate.”

“We doctors were not trained to wait until she’s nearly ready to breathe her last breath,” she said.

Gee predicted that some people who need abortions will die because doctors will be hesitant to perform them — and that the victims will disproportionately be low-income women of color.

Those are the patients least likely to be able to travel out of state for immediate care. Black, Latino and Native American women already die from pregnancy-related causes at two to three times the rate that white women die, because of preexisting health disparities and lower-quality care, according to the U.S. Centers for Disease Control and Prevention.

“These politicians’ intentions were to prevent elective abortion, but what they did here goes far beyond that,” Gee said. “I believe it will take women dying to get these unsophisticated laws changed.”

Dr. Valerie Williams, an obstetrician-gynecologist in New Orleans, said in a sworn affidavit this month that a hospital lawyer prevented her from using the preferred method — known as dilation and evacuation — to remove a nonviable fetus from a patient whose water broke at 16 weeks.

“Going back into that hospital room and telling the patient that she would have to be induced and push out that fetus was one of the hardest conversations I’ve ever had,” Williams wrote.

The patient lost nearly a liter of blood and “was screaming — not from pain, but from the emotional trauma,” the affidavit said. “This was the first time in my 15-year career that I could not give a patient the care they needed. This is a travesty.”

In perhaps the best-known abortion case since Roe was overturned, a 10-year-old rape victim in Ohio traveled to Indiana in late June to end her pregnancy. The ban in Ohio makes no exceptions in cases of rape or pregnant children, though doctors say that giving birth at such a young age poses numerous risks to a patient’s life.

Even clear-cut cases have gotten bogged down in the bureaucracy of the new legal landscape.

Dr. Mae Winchester, a maternal-fetal medicine specialist in Cleveland, said she recently had a patient who was 19 weeks pregnant show up at the hospital with a fever, a climbing heart rate and a white blood cell count that had doubled in 12 hours — all signs of sepsis.

It would be five more weeks before the fetus had any chance of surviving outside the womb — and Winchester knew the woman needed an abortion to save her life. But the doctor couldn’t proceed until she had campaigned for second opinions and received final approval from a hospital lawyer.

Even then, the hospital required Winchester to ask the patient whether she wanted to hear the heartbeat. The woman cried as she listened on the ultrasound machine.

A study published recently in the New England Journal of Medicine found widespread variation in how doctors in Texas interpreted legal exceptions to the law that took effect there last fall effectively banning abortions after six weeks.

Some physicians said they believed they could end a pregnancy if the patient’s water were to break before the fetus was viable. Others believed they would need to wait until the patient developed a life-threatening infection.

“In multiple cases, the treating clinicians — believing, on the basis of their own or their hospital’s interpretation of the law, that they could not provide early intervention — sent patients home, only to see them return with signs of sepsis,” the authors wrote.

The only patient able to obtain an abortion at one hospital was a woman whose “severe cardiac condition progressed to the point that she was admitted to the intensive care unit.”

In another case, a woman whose water had broken early said her doctor instructed her to fly to another state, and told her that if she went into labor on the plane, she should “leave the placenta inside [her body].”

“You’re going to have to deal with a 19-week fetus outside your body until you land,” the doctor said, according to the woman.

After the Texas law took effect, some doctors began using a procedure known as a hysterotomy to end dangerous pregnancies. It involves cutting through the wall of the uterus, and carries an increased risk of complications compared with dilation and evacuation, the standard of care for abortions after 15 weeks. But it is less likely to be construed as an elective abortion.

Unlike in other states, the law in Texas specifies that doctors are permitted to end an ectopic pregnancy, a dangerous condition in which a fertilized egg implants outside the uterus. The pregnancies almost never result in viable fetuses, and can rupture fallopian tubes if left untreated.

But some doctors in the state are still hesitant to perform any abortions, instead recommending that patients travel out of state, according to Dr. Lorie Harper, a maternal-fetal medicine specialist in Austin who helped conduct the New England Journal study.

She said she worries about patients with pulmonary hypertension, which carries up to a 50% risk of maternal death during pregnancy or in the six months after delivery. Because cardiac events can be sudden, there is no margin to simply wait and watch for signs of distress.

“My medical opinion is that it’s high-risk,” she said. “I don’t know what the law would say.”

Though the laws are open to interpretation, Harper said the alternative — a finite list of high-risk conditions for which abortion is allowed — would be worse, because it couldn’t account for the nuances that inevitably arise in individual cases.

In at least one respect, the laws are clear: Several states explicitly exclude mental illness and even the possibility of suicide or other self-harm as a legitimate reason to terminate a pregnancy.