Most Americans want health exceptions in abortion bans. Political infighting keeps blocking them.

Georgia doctor says it’s difficult to determine point to legally intervene

By: - November 7, 2023 1:26 pm

A pregnant woman in the early stages of labor rests in a hospital bed with her arms on her stomach. Getty Images

In early October, an Idaho woman 20 weeks into her pregnancy went to the emergency room after her water broke about five months early.

When the water breaks prematurely, an infection can develop and infect the fetus, placenta and other fluids. At that stage of pregnancy, the threat of infection becomes a ticking clock for everyone involved.

And in this case, time was already running out.

At 20 weeks, there is virtually no chance a fetus can survive outside of the womb even with medical intervention — the heart and lungs are too immature. And once an infection reaches the uterus, it is systemic, so there isn’t enough time to allow the fetus more days in utero.

The condition can progress to a blood infection called sepsis within a matter of hours, then septic shock, which can cause organ failure in as little as 12 hours, according to medical research. More than one quarter of patients who develop sepsis die. And if the patient survives, merely having the infection can leave them with permanent organ damage and other long-term health effects.

In another state, a doctor would be able to induce labor and let the patient deliver if that was their wish, then offer palliative care so the parents could hold their child until it passed.

But in Idaho, a state with a strict abortion ban, the doctor had limited options. The law does not allow for termination to preserve a person’s health, only to prevent death. And hours could pass before the hospital’s legal, administrative and medical teams might approve the decision to terminate the pregnancy and properly care for the infection.

So rather than roll the dice, the doctor ordered the woman transferred in the hospital’s small airplane to Salt Lake City, Utah — a state that has an 18-week ban, but also an exception to preserve the pregnant person’s health.

It’s a scenario physicians have warned about in the year since the Dobbs decision, when 14 states implemented near-total abortion bans. Doctors in ban states, including those with health exceptions, have said the exception language is written so vaguely that it is essentially meaningless, and hospitals have adjusted their policies to protect doctors from potential criminal charges and loss of medical licenses. Several states with a general health exception don’t include fatal or life-limiting fetal anomalies.

On that day in October, the stakes felt especially high for ER physicians in Idaho, because it was during a limbo period when doctors were more at risk for state prosecutions after a court ruling. In the 12-day span of time between the initial ruling and the reinstatement of protection, 11 St. Luke’s patients were transferred for pregnancy-related complications, said spokesperson Christine Myron, which is a typical amount of pregnancy-related transfers in that time frame. Seven were within the hospital’s network and four were sent out of state.

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with bans — Idaho, South Dakota, Oklahoma, Arkansas and Mississippi — have an exception only to prevent death.

In all five states, legislation has been drafted to fix the issue, and in many cases, it is Republican lawmakers who offer such proposals. But with ongoing court battles, partisan fights at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts failed during each state’s 2023 legislative session.

Opposition to health exceptions goes back to Roe-adjacent court case

In Arkansas, Democratic Rep. Denise Garner sponsored a bill in late March adding a health exception to the state’s ban. Garner, a retired oncology nurse, said during the committee hearing that several health care workers shared stories with her about the “devastating effects” on patient health after the ban went into effect. She told lawmakers about a 19-year-old college student who became pregnant while a contraceptive IUD was still inserted, causing the embryo to develop around the device.

Doctors delayed ending the pregnancy, hoping it would spontaneously discharge, Garner said, but four weeks later the IUD perforated the woman’s uterus, causing hemorrhaging and forcing doctors to remove the uterus entirely in a hysterectomy — ending her chances of giving birth to a child of her own.

“I can’t tell you how many times patients were diagnosed with cancer at the time of a pregnancy,” Garner said, and a pregnancy can make it difficult to continue chemotherapy treatments. “Let’s figure out a way to make sure that the specialists are able to do what they’re trained to do and take care of the health care of women who need these abortive treatments.”

The Arkansas Family Council immediately voiced its opposition, saying the legislation would effectively legalize all abortions in the state. During the committee hearing, Republican Rep. Marcus Richmond said he was “sympathetic” to the issue but voted no because he wanted the language to be more narrowly focused.

“It’s going to be such an arbitrary thing that anybody who’s wanting to perform an abortion will be able to make some claim somehow that their health is being affected, and they can find somebody who will support that,” Richmond said.

Jerry Cox, Arkansas Family Council president, told States Newsroom his organization believes cultural issues should have a biblical worldview, including abortion.

He said their opposition to health exceptions stems from the 1973 case of Doe v. Bolton, which was decided on the same day as Roe v. Wade. The U.S. Supreme Court struck down portions of a Georgia law that limited when and where someone could seek an abortion, namely that it had to be within a hospital with specific accreditations, and several layers of administrative and medical staff had to grant permission for the procedure if it met the exceptions for rape, a fetus with severe abnormalities or a life-threatening condition. The court said the requirements were unreasonable and ruled them unconstitutional on the basis of a right to privacy. That ruling invalidated many other state laws with restrictions.

Justices also said the Georgia law could not restrict the definition of “health” to physical health only, and said emotional, psychological, familial and age factors should also qualify.

To anti-abortion activists, the ruling effectively legalized abortion up until birth for almost any reason. The Doe ruling made clear, however, that a statute placing such limits on where abortions could be performed after the first trimester might hold up to constitutional scrutiny.

Prior to the Dobbs decision in 2022 that overturned Roe, less than 1% of abortions in the U.S. occurred after the 21st week of pregnancy. The ones that do happen after that stage are often related to fatal or life-limiting fetal anomalies.

“One would hope that doctors are not going to say, ‘OK, you’re going to start labor next week, but your health is bad, so we’re going to abort,’” Cox said. “I can’t name any cases where that’s happened, but that’s why over the years when people would say, ‘Well, we need a health exception in this abortion law,’ we’ve always resisted that, because it would pretty much then put it all back in the hands of the doctor.”

Cox said he knows doctors have to make judgment calls more often than the public is aware of, but since no doctors have yet been prosecuted under an abortion state law, then maybe the concerns are overblown.

“It makes me wonder if some people might think that’s a convenient way to justify doing the health exception, is to say that well, doctors won’t know what to do. It seems they’ve been able to figure it out pretty well,” Cox said.

Dr. Nisha Verma, an OB-GYN and abortion provider in Georgia, said even though her state includes medical emergencies in its six-week abortion ban, it’s impossible for a law to encompass the nuance and complexity of medical decisions in a patient’s life.

“There isn’t this line in the sand, there isn’t this moment in time where someone goes from totally fine to actively dying, it’s a continuum. It’s really difficult to determine where we can legally intervene,” Verma said.

In the case of a patient’s water breaking before fetal viability, Verma said the risk of maternal death increases by 50% if a doctor waits to treat until the person is sicker, which they often end up doing to protect themselves from legal consequences. One woman in Oklahoma named Jaci Statton was told to wait in a parking lot until her infection was more serious so she could be treated. Statton has filed a federal complaint over the incident, and she is one of several women in Idaho, Oklahoma and Tennessee who have taken action after being denied abortion care in their home states.

“I think these laws are establishing for people what risk is acceptable and what isn’t, and that component of it is really problematic,” she said. “And they’re using these non-medical terms to try to regulate the practice of medicine.”

Women in several ban states have sued over denial of care

Earlier this year, 13 Texas women sued the state after they were denied abortion care despite the fact that they were facing severe, dangerous pregnancy complications. Although Texas’ law includes an exception for the pregnant person’s health, the severity of the ban in place makes doctors feel uncomfortable relying on it, according to the lawsuit. One plaintiff, Amanda Zurawski, said she was forced to wait until her infection became septic to receive abortion care, causing one of her fallopian tubes to permanently close and affecting her future fertility. She spent three days in the intensive care unit.

A Texas district judge issued a ruling in early August saying doctors could use their own good faith judgment in emergencies, but the state immediately appealed it, which stopped the decision from taking effect. The Texas Supreme Court is scheduled to hear arguments on Nov. 28.

In August, a Texas Democratic lawmaker successfully passed a bill allowing doctors to legally terminate a pregnancy in two scenarios: When a pregnancy is ectopic, which is a nonviable condition, and when a pregnant person’s water breaks prematurely and the fetus is not yet viable. Republican Gov. Greg Abbott quietly signed the bill into law in August, and it took effect Sept. 1.

Exceptions in bans are ‘fake,’ Wisconsin Democrat says

For abortion rights advocates, even the states with health exceptions in their ban laws are causing harm, because often the laws lack clarity and do not account for instances of fatal or life-limiting fetal anomalies.

Jillaine St.Michel, an Idaho plaintiff in a lawsuit led by the Center for Reproductive Rights, was 20 weeks into her second pregnancy when her fetus was diagnosed with multiple developmental abnormalities of the organ and skeletal systems at a routine scan. It was so severe that the doctors asked St.Michel if she worked in a factory around any dangerous chemicals. She didn’t.

St.Michel had to spend three days in Seattle with her husband and 3-year-old child, which made her feel like she was doing something wrong.

“To have to go through that procedure and then go back to an unfamiliar hotel room, and have to heal and go through that process not in the comfort of your own home felt really degrading,” she said. “It felt really insulting that we had to go through that in such a demeaning way.”

Democrats in states like Wisconsin, which had a complete ban without exceptions until a recent court ruling prompted Planned Parenthood to resume its abortion services, think most Republican-proposed bills to add health exceptions are drafted in bad faith.

“The idea of exceptions to abortion bans, it’s absolutely fake, it’s false,” said Sen. Kelda Roys, a Democratic legislator in Wisconsin. “It’s intended to do one thing, and that is to give political cover to anti-abortion politicians who realize how deeply unpopular their position is and are desperately trying to scramble to appear less extreme.”

Wisconsin Republicans proposed legislation with a health exception in March, but Democrats immediately rejected it, calling it a publicity stunt that came just a few months after Republicans nationwide performed poorly in the 2022 midterm elections. It also came a little more than two weeks before a significant state supreme court election, which Justice Janet Protasiewicz went on to win in April. Protasiewicz openly campaigned in favor of abortion rights.

Wisconsin Gov. Tony Evers, a Democrat, also vowed to veto the bill if it passed, after which the bill died. While it passed the House, Republican Senate Majority Leader Devin LeMahieu said at the time that the Senate would not hear the bill because, “This is not a topic to use as a political football.”

As political minorities in ban states, Democrats sometimes protest exception bills

In most states with abortion bans, Republicans dominate the legislature in both chambers, and a lack of Democratic support for a bill typically won’t determine whether a bill advances or passes into law. For that reason, in places like Idaho and South Dakota, proposals to add health exceptions have drawn support and ire from Democrats at the same time.

In South Dakota, Democratic Rep. Erin Healy responded to a health exception proposal drafted by Republican Rep. Taylor Rehfeldt by saying she heard anecdotes from women in her life who had pregnancy complications and were affected by the vague laws, but health exceptions are just a small carveout to what is still a violation of individual privacy and doctor-patient relationships.

“Democrats really believe that there shouldn’t be just exceptions, that abortion should be an option for women, and that bodily autonomy is important,” Healy told the Mitchell Republic in January.

Rehfeldt did not respond to requests for comment.

In Idaho, Democratic legislators were angry after health exceptions were dropped from the bill that ultimately passed the legislature in April. Republican Rep. Brent Crane withdrew the version that included that language after opposition from Right to Life of Idaho and state Republican Party Chairman Dorothy Moon.

Rep. Brooke Green, a Democrat, said her caucus decided to walk out of the House chambers when the bill came up for a vote as a form of protest because it only included ectopic pregnancies and miscarriages as exceptions.

“It was one of those situations where we were damned if we do, and damned if we don’t,” Green told States Newsroom. “When you have an environment where you’re the super, super minority, these are the circumstances that play out.”

Crane said he is still working to find the right language for a bill that could pass during the 2024 legislative session, which begins in January. Rehfeldt has vowed to keep fighting for her bill in the next session as well.

National Right to Life helps guide legislative language to keep exceptions narrow

Ingrid Duran, director of state legislation for National Right to Life, also cited the Doe v. Bolton case as one of the reasons why the organization is typically opposed to legislation that adds a health exception to an abortion law. Because the court in that ruling said that a physician could use their own medical judgment to determine what qualifies as “health,” any exception related to health must be narrowly tailored if it is to earn the NRLC’s support.

From Right to Life’s perspective, during the time of Roe, doctors were providing abortions after viability for arbitrary reasons, even in states where the procedure was more tightly regulated after about 22 or 24 weeks of pregnancy.

“This is a tale as old as time, as far as the different medical associations — or maybe just a pro-choice senator or representative — that will introduce language that would make it not as narrowly tailored and kind of leave it open and vague to the person performing the abortion’s interpretation of what ‘health’ could mean,” Duran said. “I think when we do that, it is very akin to the wolf looking after the sheep.”

Right to Life was heavily involved in the passage of a narrow health exception in Tennessee’s abortion ban earlier this year. The Tennessee Medical Association supported an initial version of the bill that included fatal fetal anomalies and allowed physicians to provide an abortion if in their “good faith” judgment it would prevent serious health consequences.

After Right to Life’s objections, a different version passed without fetal anomalies and instead said the physician must act with “reasonable” medical judgment. Duran said that term is preferable because to her, it reflects a consensus of the medical community. Objections from the medical community must be taken with a grain of salt, in her view, because groups like Right to Life believe physicians profit from providing abortions.

“If you had a very terrible abortion doctor like Kermit Gosnell, you wouldn’t want to leave it up to him to determine what is his good faith medical judgment,” Duran said, referring to a former physician and convicted serial killer.

For attorneys like Peg Dougherty, deputy general counsel for St. Luke’s in Idaho, that distinction is important from a legal standpoint when advising medical staff. Dougherty would prefer to see “good faith” wording because in other areas of medicine, physicians are trusted to provide the appropriate training and expertise to a patient. If it is specific to a doctor’s “reasonable judgment,” she said, it is easier for prosecutors to find witnesses who might testify that a course of treatment wasn’t what they would consider reasonable.

“Doctors are treating patients and providing the best care for their patients that they can and they’re also working with their patient. They’re not trying to fabricate reasons for their patient to do something, ever.”

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Kelcie Moseley-Morris
Kelcie Moseley-Morris

Kelcie Moseley-Morris is an award-winning journalist who has covered many topics across Idaho since 2011. She has a bachelor’s degree in journalism from the University of Idaho and a master’s degree in public administration from Boise State University.

MORE FROM AUTHOR