After the Supreme Court overturned Roe v. Wade and states across the country banned or severely restricted access to abortions, some doctors are delaying care for miscarriages, ectopic pregnancies and other pregnancy complications over fears they'll be criminalized.
A week after Roe fell, Dr. Mae Winchester, a maternal-fetal medicine specialist practicing in Cleveland, Ohio, was standing in front of a patient whose water broke at 19 weeks gestation. The patient, who gave Winchester permission to share her experience, initially wanted to continue her pregnancy, despite significant risk to both her health and the health of the fetus, who at 19 weeks gestation could not survive outside the uterus.
"She became very ill," Winchester told TODAY. "She had a life-threatening infection in the uterus as a result of her water breaking so early, so we had to do an abortion at 19 weeks to save her life."
After the Supreme Court struck down Roe v. Wade and ended the constitutional right to an abortion, Ohio passed a 6-week abortion ban with no exceptions for rape or incest, but with exceptions for the life of the pregnant person.
But these exceptions, Winchester and other experts say, are vague, and have caused confusion among OB-GYNs and other maternal-fetal specialists as to just how actively a patient needs to be dying in order for physicians to be able to legally intervene.
Winchester knew her patient's life was at stake, but still left her patient's side to call her lawyers.
Since Roe v. Wade had been overturned the week prior, "I just had to double check, to see if there’s anything different I had to do now," she explained. "Just to make sure the patient is protected as best as we can protect her, and that I am also protected."
"It's only getting worse"
Winchester's husband also works in medicine, as do many of her friends.
"Most of the time they've never spoken to a lawyer about the care they've had to provide," she said. "They think it's wild that I have my lawyer's cell phone number in my phone and that I can call them at any time of the day because emergencies walk through those doors regardless of business hours."
For OB-GYNs and abortion providers in states that restricted abortion access prior to Roe being overturned, delaying or denying medically necessary care is nothing new.
"This question of 'When can we intervene with an abortion?' and 'When is it life-saving enough?' has always been a conundrum and ethical problem in Texas," Dr. Ghazaleh Moayedi, an OB-GYN an abortion provider in Texas and Oklahoma, told TODAY.
Texas enacted a 6-week abortion ban prior to the end of Roe v Wade, and in early July the state's Supreme Court ruled Texas can enact a total ban that puts providers at legal and financial risk, the Texas Tribute reported. Oklahoma has banned abortion after "fertilization," enacting the most restrictive ban in the country.
Before Texas passed a 6-week abortion ban and before the end of Roe v. Wade, Moayedi cared for a pregnant patient experiencing heart failure.
"We know that heart failure worsens during pregnancy, but that person was denied an abortion because their heart failure wasn't significant enough," she recalled. "This has been a long-standing problem in Texas, and it's only getting worse."
A recent study of two Dallas hospitals published in the American Journal of Obstetrics and Gynecology found that a reported 28 patients whose water broke or who were experiencing other serious complications before 22 weeks gestation were denied medical intervention by their physicians until there was an “immediate threat” to their lives or fetal cardiac activity stopped. The incidents occurred after Sept. 1, 2021, when Texas enacted its 6-week ban.
The patients waited an average of nine days for medical intervention, and 57% ended up experiencing serious infections, bleeding or other medical problems, according to the study.
"This is taking a huge toll on our mental health," Moayedi said. "Many of my colleagues have left the state or are preparing to leave the state. Many of us are struggling with what it means to leave or not leave — I know I am. I love living here in Texas. I've always encouraged people to come train, provide here and try and make things better. And even for me right now, I don't feel ethically or morally right, encouraging people to come train here. I'm actually worried for our trainees that we endanger them by encouraging them to train here."
Rupali Sharma, senior counsel and director of The Lawyering Project, a group that represents abortion providers, has been working for 10 years to protect abortion providers across the country from criminalization.
"Most of these bans, unfortunately, across the country are criminal bans. So you're not just looking at losing your job, which I think was horrifying enough, but you're looking at being thrown in jail," Sharma told TODAY. "A lot of our providers, they have families. They have young children."
Sharma explained that every physician's training directs them to keep their patients from "being close to death" and to "preserve their healthy and safety as soon as they walk in the door. "
"(These bans) have exceptions, so I guess they seem like they're not as heartless as they are," she added. "But the exceptions can't be used in practice, and that's what we hear from providers all of the time."
A new study from University of Colorado Boulder found that a nationwide abortion ban, which is being considered by some Republican lawmakers, will increase the nationwide maternal mortality rate by 24%. For Black people, the same research found the maternal mortality rate would increase from 18% to 39%.
"It’s an impossible choice"
Joanna Wright, a lawyer and partner at national law firm Boies Schiller Flexner, is currently in litigation in Louisiana on behalf of abortion providers and other doctors who may need to provide abortion care to save the life of a patient.
"There's three trigger bans (in Louisiana), and they are not written clearly," Wright told TODAY. "It's not clear to doctors what medical care they can provide to save the life of the (pregnant person), what medical care they can provide in the case of fetal anomalies or what medical care they can provide unrelated to pregnancy but to pregnant women, like cancer treatments, for example."
Louisiana is one of 13 states with trigger laws that banned abortion after Roe v. Wade was overturned. In July, a state judge temporarily blocked the ban from being enacted. The state's attorney general, Jeff Landry, criticized the ruling and vowed that he "will not rest" until "the rule of law is followed," adding that "unfortunately, we will have to wait a little bit longer for that to happen."
On Thursday, a Louisiana state court issued a preliminary injunction blocking the state's trigger bans from taking effect while litigation continues, the Associated Press reported. Currently, doctors can continue to provide abortion care.
As Wright and her colleagues continue litigation, she said the confusion caused by the state's abortion bans — including how often they've been blocked and reinstated — continues.
"There’s a story from a doctor who had a patient whose water had already broken long before viability, so the fetus had no chance of surviving outside of the uterus," Wright explained. "The typical standard of care is to perform a procedure called the (dilation and evacuation) that removes the fetus before the woman experiences complications." (TODAY.com reviewed a legal brief verifying this story.)
Wright explained that this patient was experiencing the life-threatening pregnancy complication during the 72 hours in which the trigger bans were not blocked.
"So the doctor left the room with the patient and was told by her lawyer she was not permitted to conduct the D&E," she added. "As a result, the patient had to deliver a 16-week fetus that could not survive outside of the uterus, and during that she hemorrhaged and lost at least a liter of blood before the doctors could stop the bleeding."
Dr. Cole Greves, a maternal-fetal medicine specialist practicing in Orlando, Florida, who specializes in treating people in high-risk pregnancy scenarios, including those with fetal anomalies, said his state's 15-week abortion ban is also vague and inhibiting his ability to adequately care for his patients and their pregnancies.
"They wrote the statute in such a way that for cases that are called 'fatal fetal abnormalities,' there can be consideration to go beyond that 15-week gestation," Greves told TODAY.
The issue with the verbiage, Greves says, is the use of the word "fatal" versus "lethal."
"The way it's worded would suggest that this has to be imminently death-causing," he explained. "I don't know if there was a lot of word-smithing done when they crafted the statute or not."
Greves said that the vague language "further restricts" physicians, and "sets up a situation where none of us know what that means, by statute."
"Until it's tested in the court system, through some type of court proceeding, we're not going to know," he added. "It really sets up a very large gray area for all of us as maternal fetal medicine specialists and certainly general obstetricians. We're not attorneys, and we're not politicians. We're care providers who are deeply invested in the health and welfare of our patients and the pregnancies that they're going through."
"Doctors are being forced between providing the standard of care and healing people, which is what they signed up to do, and withholding care or facing up to 15 years in prison," Wright said of physicians in Louisiana. "It's an impossible choice in an already stressful profession and an increasingly hostile environment."
"Most people would never consider how an abortion ban would effect them"
When asked what advice she'd give to people who are considering getting pregnant and live in states with abortion bans or severe restrictions, Moayedi said there's a few things people should consider in order to make sure they receive the best care possible.
"If there's a complication, first and foremost, is (their hospital) a Catholic hospital or not? Because these problems have always existed in Catholic hospitals," she explained. "We're just, again, seeing it more."
For example, in 2013, the American Civil Liberties Union and the ACLU of Michigan sued the United States Conference of Catholic Bishops on behalf of a then-30-year-old woman, who said she was denied adequate care after suffering a miscarriage at 18 weeks gestation due to the hospital's religious concerns. The case was dismissed in 2015 on the grounds that the Michigan federal courts had no jurisdiction in the case and could not interfere in religious doctrinal decisions.
Moayedi also advised people to consider who in their life they can trust and call on, should they need to leave their state to receive abortion care or require an advocate in the hospital room.
"It makes zero sense to say like, well, people just shouldn't get pregnant, right?" she added. "The reality is that most of the people I take care of would never consider how an abortion ban could affect them. It's not until you're in that moment that it really becomes clear, and that remains true even for such a national news story."
Winchester agreed, adding that there is no blanket advice she can give anyone considering trying to conceive right now, especially because every body and every pregnancy is different, and pregnancy complications can occur quickly.
"Pregnancy is inherently risky to the life of the (pregnant person), even if you are completely healthy," she said. "As we saw with my patient when her water broke at 19 weeks, she was very healthy, and all of a sudden her life was in danger because of pregnancy."
While she said patients can travel to "blue states" for care, like New York or California, that's often impossible for many people who are not "geographically lucky."
"Our patients deserve that same level of care and accessibility as these blue states," Winchester stressed. "To make someone travel halfway around the country? And the cost of those terminations are insane — thousands and thousands of dollars.
"It's very scary," she added. "I don't know how I could sit with myself if me debating with a lawyer or me debating with some hospital administrator led to my patient getting really sick and something really bad happening to them."