Doctors have a code, a set of principles meant to guide their practice: Give care. Act justly. Respect patients. Do no harm. But for Texas doctors, especially obstetrician-gynecologists, following those seemingly straightforward principles has become a legal and ethical minefield.
Physicians are finding themselves torn between providing medically appropriate care and staying in compliance with the state’s draconian anti-abortion laws. The stakes couldn’t be higher: risking major fines and up to life in prison for doctors on one side, and on the other, often putting women’s lives at risk because of delays in care or refusals to provide formerly routine procedures. As a result, medical decisions regarding pregnancy complications now involve a host of new stakeholders—hospital administrators and lawyers—who may put questions of institutional risk above patient well-being.
Dr. Shanna Combs, an OB-GYN, waded into that minefield a few months ago while on her shift at a maternity care hospital in Fort Worth. Her patient, 19 weeks along in her first pregnancy, was in bad shape. Her water had broken prematurely, and she’d gone into labor much too early. By the time Combs got to her, she’d been laboring for 48 hours. Her child had a heartbeat but was several weeks away from being strong enough to survive outside the womb.
“Previously, we would call this an inevitable miscarriage or inevitable pregnancy loss and offer the patient options to help the process along in order to minimize risk of infection for the mother,” Combs said. Those options include counsel for pregnancy termination through a surgical procedure as well as the prescription of Misoprostol, a labor-inducing medication that is also used as an abortion medication in the first trimester.
But now, “Basically when the mother’s water breaks before viability, if there’s a heartbeat, you’re not allowed to do anything,” Combs explained. She could only coach her patient—emotionally distraught and physically in pain—through another 12 hours of labor to deliver a baby that couldn’t and didn’t survive.
“She really had to suffer,” Combs said. Unsurprisingly, the woman developed a serious infection that kept her in the hospital for another day.
For many expectant mothers, the state’s abortion laws have turned what is already a devastating reality—the loss of a wanted pregnancy—into an even more excruciating and sometimes life-threatening process. The laws have not only prohibited access to elective pregnancy termination, but they’ve also obstructed the path for timely and medically appropriate care for many Texans experiencing pregnancy complications.
Combs and other doctors said they are now forced to provide a lower quality of medical care to patients. She and her colleagues are left with “a lot of anger and frustration, and feeling like patients are not able to get the care that they deserve.”
Although treatment for pregnancy complications and abortion access might be perceived as entirely different things, medically speaking they’re not. Doctors often treat patients experiencing pregnancy loss by using the same tools and procedures that they would in an elective abortion: by prescribing labor-inducing medication or performing a dilation and curettage or evacuation (D&C or D&E) to remove remaining pregnancy tissue.
Under Texas’ abortion ban, it’s this type of standard of care treatment for pregnancy loss and other pregnancy complications that has fallen under scrutiny. The law provides an exception, permitting abortions when a patient faces “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” But the vague language paired with a hefty criminal penalty for doctors—up to $100,000 in fines and life in prison—has had a chilling effect, leaving interpretations up to doctors and their lawyers and effectively discouraging the use of treatments that would once have been routine.
“When it became criminal, that’s where the line was drawn,” Combs said. “That’s your livelihood. That’s who you are as a person. You could go to jail. You will have to pay fines; you’ll lose your license. If you get out of jail, you won’t be able to practice medicine.”
Attorney Blake Rocap of Austin provides counsel to abortion advocacy groups around the state. “We’re in a situation where lawyers are also providing a lot of risk analysis,” he said. “They’re telling their clients, ‘We don’t really know how this is going to be interpreted, we think this [abortion] is protected activity, we think this qualifies as under the medical emergency exception, but no one knows for sure.’”
Rocap said such legal uncertainty discourages doctors from providing care. They know, he said, that “if they don’t do anything, they’re certainly going to be in compliance.”
In the months since the passage of the state’s trigger law, media reports have detailed stories of pregnant Texans denied miscarriage care, sent home to bleed in their bathtubs, offered care only after a patient has deteriorated enough to develop a life-threatening condition such as sepsis, or forced to cross state lines for treatment.
Even when a doctor believes an abortion is medically necessary to save a woman’s life, often the best advice that lawyers can offer to that doctor is that it “probably” is legal, Rocap said. “When the penalty is 20 years to life, ‘probably’ is not good enough.”
See here and here for similar stories. I drafted this one a few days after the Slate story that I blogged about, and on the same day as the announcement of the Observer’s demise, which thankfully turned out to be premature. I had opened a tab for this and had been thinking about blogging it, but this one was right on the heels of the Slate story, and it didn’t make me think of any new angles, just more examples of the same damaging truth. I then decided I had to blog this as a tribute to the Observer. There’s less urgency to that aspect of it now, but the story should remain in the forefront of our minds. So here it is, with a slightly more complicated backstory than I originally intended.