Doctors in Texas say that the state’s newly enacted abortion law have left them with an urgent question: in cases where a patient’s pregnancy is endangering their life, is it legal to save them with an abortion?
Although the state’s health and safety code permits abortions in “medical emergencies,” the law’s language has left physicians unsure of what constitutes an emergency, and what they will do when their duties to care for a patient conflict with the liability the law opens them up to in such cases.
“We stand at a point where, as a physician, myself and many others are frankly scared,” said Dr. Shanna Combs, an obstetrician and gynecologist in Fort Worth.
Doctors, legal scholars, and reproductive health experts said it’s unclear exactly when an emergency abortion can be performed in Texas under the law.
When someone has an ectopic pregnancy, if their water breaks before the fetus is viable, and in other rare but potentially fatal situations, an abortion of the fetus is often or always the recommended course of action, experts said. Now, in cases where fetuses have a heartbeat or cardiac activity, it’s unclear if those abortions would be legal.
There are “some cases where the only reasonable option is to the end the pregnancy, and the presence or absence of cardiac activity or a heartbeat isn’t relevant to the medical decision making, because the woman’s life may be in danger and that pregnancy has zero potential of resulting in live birth of a surviving child,” said Dr. Stephen Chasen, an expert in high-risk pregnancies and a professor of obstetrics and gynecology at the Weill Cornell Medical College in New York City.
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This typically happens when a person is about six weeks pregnant, although that does not mean the person has actually been pregnant for a full six weeks.
Pregnancy is measured from the first day of a woman’s most recent menstrual cycle, not from the time of fertilization. So a woman who is considered four weeks pregnant hasn’t been pregnant for four weeks; rather, it’s been four weeks since the first day of her last period.
Last year, 84% of Texas residents who had an abortion did so when they were 10 weeks pregnant or sooner, according to state data. In Tarrant County, at least 4,943 county residents had an abortion last year, according to the state. Nationwide, the U.S. abortion rate has declined in the last decade, according to national data.
‘There’s definitely been some fear’
The Texas Health and Safety Code allows abortion in cases of an ectopic pregnancy or during a “medical emergency,” when a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” puts the woman in danger of dying, according to the code.
But because the definition is not stated in the new law, and because of the law’s specifications around cardiac activity, doctors are now unsure what might open them up to a lawsuit and force them to defend their medical decisions in court.
Two of the more common cases in which an abortion is recommended are ectopic pregnancies or when a woman’s water breaks before the 20 week mark, doctors said.
An ectopic pregnancy is any pregnancy that happens outside of the uterus. These pregnancies are not viable and cannot result in the birth of a surviving child, said Chasen, the maternal-fetal health expert. Ectopic pregnancies must be removed immediately, Chasen said, because if the pregnancy continues to grow intside the fallopian tube, it can cause the tube to burst, and cause internal bleeding and be life-threatening. The frequency of ectopic pregnancies in the U.S. is difficult to calculate, but most estimates indicate that between 1 and 2% of reported pregnancies in the U.S. are ectopic.
State code says removal of an ectopic pregnancy is not considered an abortion. But the new law’s specifications cloud that designation, as the law says any fetus with cardiac activity is protected. In some cases, ectopic pregnancies can have cardiac activity.
“Sometimes (ectopic pregnancies) have a heartbeat as well,” Combs said. “And so, you know, there’s definitely been some fear among physicians as to whether or not that qualifies under this bill.”
Melissa Murray, a constitutional law and reproductive rights expert, said the law still leaves doctors subject to lawsuits, even if an abortion they perform is ultimately deemed an emergency and thus legal.
“I think it would be down to doctors to make a judgment about whether it is an emergency,” said Murray, who is a law professor at New York University. “And then it will be subject to whether some other person thinks that it’s medically necessary.”
The way the law is written allows any individual, even someone who overhears a doctor talking about providing an emergency abortion, to file a lawsuit. Then, the doctor must hire a lawyer and defend themselves against any lawsuit filed, even if the abortion is ultimately determined to be legal, Murray said.
“If I were a judge, I think (ectopic pregnancies) would clearly fall within the rubric of a medical emergency that required an abortion,” Murray said. “I think the bigger problem, and what the issue is, is that there’s still a deterrence.”
Dr. Abigail Aiken, an associate professor with the LBJ School of Public Affairs at the University of Texas at Austin, said the concerns physicians have raised “highlight a lack of clarity and the need for clear information so that they can practice medicine and care for their patients without fear of being sued. The fact that there are these concerns and possible confusion I think tell us a lot about the chilling effects of the bill.”
Combs, the Fort Worth physician, also raised questions about preterm premature rupture of membranes, which refers to when the amniotic sac, or “water,” breaks before 37 weeks of pregnancy. In cases where a pregnant person’s water breaks very early in pregnancy, before the 20 week mark, it is unlikely the fetus’s lungs can develop without the amniotic fluid and the pregnant person risks a life-threatening infection if they continue the pregnancy.
Other cases, like fatal fetal anomalies or hydrops, are rare conditions that are almost always life-threatening and almost always prevent a healthy child from being born. In those cases, too, Chasen said most doctors acting in the patient’s best interest would recommend ending the pregnancy.
“When we see conditions like this, that are lethal in most cases, and can result in severe harm to the mother, then ending the pregnancy before it gets to that point is really the safe thing to do,” Chasen said.