Doctors ask ‘What does the risk of death have to be’ to make abortion legal under state bans

Doctors ask ‘What does the risk of death have to be’ to make abortion legal under state bans

July 5, 2022 0 By Ellen Novack

Ectopic pregnancies, in which a fertilized egg attaches outside the uterus, are not terminated by the same medical procedures as pregnancies in which the fertilized egg is inside the uterus. Ah-ha! PolitiFact tells us. This means it’s not abortion!

So, yes: Ectopic pregnancy is commonly treated either through a medication called methotrexate or through laparoscopic surgery, while what we more generally term as abortion is commonly provided either through the medications mifepristone and misoprostol or through vacuum aspiration, dilation and curettage, or dilation and extraction. 

Additionally, if you consider a procedure or spontaneous bodily event to be abortion only if the product of conception is expelled or removed specifically from the uterus, then termination of an ectopic pregnancy is not, by definition, abortion. 

We can talk definitions all day long, but reality is being affected by laws sloppily written by people who do not care about how to properly define the terms associated with medical treatment. For instance, state abortion bans often refer to the “unborn child,” but “that’s a word that means nothing to me as an obstetrician, because I deal in the words of ‘embryo,’ ‘fetus,’ and perhaps ‘neonate,’” Louise Perkins King, director of reproductive bioethics at Harvard Medical School’s Center for Bioethics and a physician at Brigham and Women’s Hospital, told Vox

Fact checkers splitting hairs over the definition of abortion do not help if doctors and pharmacists (and hospital lawyers) are concerned about prosecution for treating an ectopic pregnancy. The reality that doctors and patients face is this: “I am worried that people will sit on very sick, pregnant patients longer than they should, in fear of being prosecuted,” Jeannie Kelly, a maternal fetal medicine specialist at Washington University in St. Louis, told the Kansas Reflector. “This isn’t just our licenses, this isn’t malpractice. This is a criminal felony charge with jail time.”

“When people are unclear about what these laws mean, and you’re talking large penalties for physicians, you know, loss of license, jail time, felony charges,” Amy Addante, an OB-GYN and fellow at Physicians for Reproductive Health, told PolitiFact in the very same piece that led with hair-splitting over whether ectopic pregnancies are treated with abortion. “The delays that are occurring as they seek legal clarity to make sure that they can legally do what they know to be medically right, it’s really dangerous for that patient.”

If you want to understand how easily the treatment of ectopic pregnancy can be twisted to imply that it’s something other than the removal of a nonviable conception causing serious risk of fatality, consider this trash New York Times op-ed, which argues, “From a pro-life perspective, delivering a baby who is ectopic is closer to delivering a baby very prematurely because the mother has life-threatening eclampsia.” There is, as many, many people pointed out on Twitter, no such thing as “a baby who is ectopic,” yet those words made it into The New York Times. While that piece is arguing that ectopic pregnancy treatment is acceptable in an anti-abortion framework, the existence and high-profile validation of language like “baby who is ectopic” is an active danger to people whose pregnancies are ectopic.

Methotrexate is already becoming more difficult to obtain, even though it is rarely used in medication abortions and is widely used for a range of conditions that have nothing to do with pregnancy. Additionally, there have already been cases under existing abortion bans where medical providers hesitated to provide ectopic pregnancy treatment out of fear of the legal consequences, waiting until the emergency was visible and undeniable enough that they were sure they wouldn’t get in trouble—despite the cost to person whose care was delayed. Your abortion ban can leave something officially legal, but if doctors are too frightened to provide it, the effect is the same as if the ban were explicitly written in the law.

These concerns about delayed care don’t just affect ectopic pregnancies. While many abortion bans have exemptions for cases where the life of the mother is endangered, they’re really unclear what that means. 

A Texas abortion provider said, ”My lawyer told me, ‘Unless they are on that table dying in front of you, you cannot do an abortion on them or you are breaking the law.’”

Writing in The New England Journal of Medicine, Lisa Harris, a professor of reproductive health at the University of Michigan, asked, “What does the risk of death have to be, and how imminent must it be? Might abortion be permissible in a patient with pulmonary hypertension, for whom we cite a 30-to-50% chance of dying with ongoing pregnancy? Or must it be 100%?”

“It’s not like a switch that goes off or on that says, ‘OK, this person is bleeding a lot, but not enough to kill them,’ and then all of a sudden, there is bleeding enough to kill them,” Harris expanded on her point to NBC News. “It’s a continuum, so even how someone knows where a person is in that process is really tricky.”

What’s really important and sad is that you really can’t keep the patient’s best interest in mind,” sociologist and associate professor of obstetrics and gynecology at the University of California San Francisco Lori Freedman told Vox. “Her suffering is not accounted for at all. Even if they can keep her from having long-term harm, she’s still going to have worse care. She’s still going to be stalled and scared for longer.”

Abortion bans will kill—not just when people seek unsafe, unregulated care and pay the price, but when doctors look at patients whose lives are genuinely threatened by their pregnancies and … hesitate. Republicans are intimidating doctors away from providing lifesaving care, and “the law has a life-of-the-mother exception” is no defense against the real-world outcomes here.

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