WASHINGTON — The state laws enacted since the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization have come in rapid succession: A doctor in South Dakota accused of inducing an abortion could be guilty of a Class 6 felony punishable by two years in prison.
A doctor in Texas, meanwhile, could face life in prison and fines of up to $100,000 for aiding in an abortion. A doctor who violates Florida’s 15-week abortion ban could receive up to five years in jail.
In all, 18 states have enacted laws that would punish doctors who perform abortions with jail time in the wake of the Supreme Court ruling overturning the federal right to an abortion — and doctors worry that helping to medically treat a miscarriage, too, will put them at risk of prosecution.
Idaho, North Dakota and Wyoming all have abortion laws on the books with similar punishments that the state has not yet implemented. A 19th century law in West Virginia would make abortion a felony, but the status of the law, which predates the 1973 Roe v. Wade Supreme Court ruling that established a right to an abortion, is still in flux. Wisconsin and Arizona face similar situations, with pre-Roe laws that would criminalize the procedure.
But doctors are concerned that the procedures used to treat miscarriages can be similar to those used to terminate a viable pregnancy — often a prescription for the medication abortion drugs mifepristone and misoprostol.
“Just being accused is a huge risk. Even if you’re completely in the right and you’re being very careful to follow laws,” said Karen Meckstroth, an OB-GYN and professor at University of California, San Francisco.
Alina Salganicoff, director for Women’s Health Policy at the Kaiser Family Foundation, cautioned that these laws will make it more difficult for doctors to decide the course of care when a woman begins miscarrying, and the risk to the woman’s health is still unknown.
“And just the decision is going to be in many cases shaped by whether the doctors have concerns about their liability, either civil or criminal, depending on the state,” Salganicoff said.
Last week President Joe Biden issued an executive order to ensure emergency medical care for women experiencing pregnancy loss.
Health and Human Services Secretary Xavier Becerra followed up on Monday, sending a letter to health care providers clarifying physician responsibilities under the Emergency Medical Treatment and Labor Act, a 1986 law that requires emergency departments to care for patients in unstable medical conditions regardless of their ability to pay. Becerra said if a woman comes into an emergency room while miscarrying and needs an abortion to stabilize her, the law would require doctors to save her life. He also said that the federal act preempts any state abortion restrictions.
Enforcement of the federal law is a complaint-driven process, and Becerra said any hospital or physician found in violation of the federal law could be subject to exclusion from Medicare and state health care programs.
Laws restricting abortion in Alabama, Texas, Arkansas and Ohio all include carve-outs to allow for abortions of ectopic pregnancies, which is when a fertilized egg implants outside the uterus and requires removal. Such pregnancies are not viable and can threaten the life of the woman.
But other state abortion restrictions do not explicitly mention it.
It can take time to confirm a miscarriage, said Meckstroth.
When people who have what she described an an inevitable miscarriage — situations where a person is bleeding heavily or has an open cervix — time can be of the essence and the health risks from continuing the pregnancy can outweigh the small chance the pregnancy continues to term.
This can include situations like when an amniotic sac bursts before 37 weeks and the woman develops a life-threatening infection; when the woman has a partial molar pregnancy, which occurs when the embryo has too many chromosomes and cannot continue to term; or during a cesarean scar pregnancy, a pregnancy that is implanted on or in a scar from a prior cesarean birth, which has a very high risk of massive hemorrhage.
In these situations a complete birth is unlikely, but risk to the woman is very high, Meckstroth said.
March for Life President Jeanne Mancini dismissed such concerns, warning about “fear-mongering” and noting that all state abortion restrictions include exceptions when the woman’s life is at risk.
Physicians often include ectopic pregnancies in that definition, but policy experts say state laws need to be more clear so physicians don’t have to worry about litigation or jail time.
“Because the law hasn’t been clarified, there’s potential for concern and potentially a real chilling effect on how care is provided,” said Elizabeth Nash, principal policy associate of state issues for the Guttmacher Institute, a research and policy organization that aims to advance sexual and reproductive health and rights. “And without clarification, the provider is put in a very difficult position.”
One way physicians can protect themselves against litigation when assisting in routine miscarriage management is to take copious records of their patients, said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
But because state laws are changing so rapidly, what’s legal now may not be legal in a few weeks.
HIPAA, the health privacy law, has exceptions that permit disclosure of patient information for law enforcement and judicial purposes. But those exceptions require some sort of court enforceable paperwork such as a subpoena or a warrant.
In the wake of the Supreme Court decision, Becerra advised that disclosure of personal health information to law enforcement officials is only allowed in very narrow circumstances, such as to avert a serious safety threat.
“Do not be proactive about your disclosure of patient information, and if enforcement comes knocking, ask to see the paperwork,” Shachar said.
The American College of Obstetricians and Gynecologists, along with more than 75 other health care organizations, released a joint statement on July 7 opposing legislative interference and warning about a decline in trust when a doctor can’t fully care for their patient.
“Patients form trusting relationships with their health care professionals, but when health care professionals are prevented from providing the full spectrum of care by threat of legal action, the quality and scope of care they can provide is limited, endangering both patient care and the patient–clinician relationship,” the health group wrote.
The situation, already in flux, is still changing, and analysts warned that many decisions will occur over the next several months.
“This is a seismic change in abortion access in this country. But what we are starting to do is feel the aftershocks of this earthquake on a wide range of issues that in many cases have nothing to do with abortion,” Salganicoff said.
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