Despite rising deaths, why don’t doctors use legal abortion exceptions in 2024?

With the upcoming election and recent revelations that Amber Nicole Thurman and Candi Miller lost their lives under Georgia’s abortion ban, it’s tempting to stick to partisan political scripts when pregnant women come forward. According to liberals, conservative legislators cannot explicitly write exceptions to abortion bans. Liberals argue that they make a habit of writing off vague exceptions as a smokescreen. To conservatives, liberals characterize the exceptions as vague and confusing to sway voters to support abortion rights, which leads to cowardly doctors refusing to perform abortions.

What I do know is this: More women died than Amber and Candi. The numbers paint a bleak picture. In Texas alone, the child mortality rate increased by 12.9 percent following the abortion ban; In states without a ban, the rate was only 1.8 percent. Even before Dobbs, more than 80 percent of pregnancy-related deaths were preventable. According to the KFF survey, 68% of obstetricians and gynecologists report that the Dobbs decision makes it difficult for them to respond to pregnancy-related emergencies. These bans have made matters worse for Black women, who already die from pregnancy-related causes at three times the rate of white women.

Even if we elect Harris as the next president, nearly half of the states will maintain restrictive abortion bans. This problem will not go away.

Today, doctors, lawyers, ethicists, activists, journalists and others are grappling with this tragedy. Now is the time to take action instead of shaking hands and blaming. We must go beyond narrative and envision a solution, no matter how imperfect. To quote Angelica Schuyler in Lin-Manuel Miranda’s “Hamilton”: “You want revolution? I want a revelation!”

The solution requires the use of exceptions that are already written and augmented by guidance from court decisions, Attorney General (AG) opinions, and other directives. I’m tired of people saying it can’t be done. If Dr. If Henry Morgentaler could practice civil disobedience and change national laws by performing an abortion in Canada, today’s medical professionals could figure out how to do it. interpret legal terms such as “serious”, “significant”, “irreversible” and “reasonable medical decision”. If American women without clinical training can perform abortions underground, against the law, American doctors can fulfill the Hippocratic Oath despite legal language covering a variety of medical scenarios. The laws are written to be detailed with case law and guidance from the executive branch. Abortion law is no exception.

Especially, No state has ever sued a physician to perform an abortion.

Critics may argue that the absence of prosecutions does not eliminate occupational risk. They point to potential medical licensing investigations, hospital privilege reviews and civil liability. But these fears overlook basic protections. State medical boards generally respect doctors’ “reasonable medical judgment”; This is the same standard used in abortion exemptions. Hospital ethics committees can provide institutional support for emergency care decisions. Medical malpractice insurance generally covers care provided under statutory exclusions. Greater risk of liability may actually result from delaying or denying necessary care.

Emergency Medical Treatment and Labor Law (EMTALA), a federal law that guarantees stabilizing treatment in hospital emergency departments, defines “emergency medical condition” using terms such as “acute symptoms of sufficient severity” and “serious impairment of bodily functions.” Physicians and hospitals have been interpreting this law since 1986, guided by court decisions and the Medicare program; no court has ruled on EMTALA as being too vague or ambiguous.

“Reasonable medical judgment” is a commonly used phrase in medical malpractice law.

Since the Dobbs decision, advocacy groups, obstetricians, and women recovering from pregnancy emergencies have sued states to ban abortions, arguing that the exceptions are unclear. The results are mixed; it is not strong enough to hold out for lawsuits and appeals in all states with abortion bans.

Inside State of Texas v. Zurawski A Texas Supreme Court decision denied relief to two obstetricians and a group of women recovering from harrowing pregnancy complications. Plaintiffs sought to expand the mother’s life exception. The court ruled that the only obstetrician with standing to sue had based his case on hypothetical emergencies, which was fatal to the case. The pro-choice movement accused the court of being misogynistic. But this misses important guidance in the decision. The decision contains some very useful words: “(T)he law does not require that a woman’s death be imminent or that she first suffer a physical disability. By contrast, Texas law allows a woman to address the risk posed by a life-threatening condition before a woman suffers the consequences of that risk…(I)n an enforcement action under the abortion ban, the burden is on the State. Prove that, unless an abortion is performed, no reasonable physician could conclude that the mother has a life-threatening physical condition that puts her at risk of death or that there is a serious impairment of a major bodily function… The law does not require life-threatening physical intervention for a physician to harm the mother’s life or major bodily functions. the situation had already caused damage before he took action to protect it” (emphasis in original).

Judge Lehrmann also quoted with approval an Oklahoma court in the same opinion: “(R)equiring that a patient ‘be in actual and present danger’ or ‘wait until a medical emergency occurs would further endanger the pregnant woman’s life and would constitute a coercive state it does not serve his interest’” (emphasis added). He further stated: “A woman’s right to access life-saving medical care without undue government interference is deeply rooted in our history and tradition, is essential to our Nation’s orderly plan of freedom, and is enshrined in the clear language of the Fifth and Fourteenth Books. Amendments (U.S. Constitution).”

Several other states also provided guidance, including attorneys general in Oklahoma and Kentucky and the Department of Health (DOH) in South Dakota. The DOH included a non-exhaustive list of 14 potentially life-threatening medical conditions under state exemption.

Women are dying, let’s wake up to the truth. Exceptions to the abortion ban are not vague as a general matter; doctors are afraid to use them. The Center for Reproductive Rights even filed an EMTALA complaint against two Texas hospitals for failure to remove ectopic pregnancies in a timely manner, which are expressly exempt from the legal definition of “abortion” in Texas.

What exactly was unclear about terminating an ectopic pregnancy? Furthermore, government guidance (including case law) on exclusions provides some reassurance and should be taken seriously by the medical community.

We need doctors to overcome their fears and stop using rhetoric as an excuse to not provide the necessary care to these women. They must apply the same standard of care to pregnant women as they do to every patient. They must provide appropriate treatment according to each patient’s specific situation. This will involve interpreting legal terms as they have previously been interpreted in other, less politically charged contexts.

Let’s get off the “can’t do” bandwagon and realize that pregnant women deserve proper care and the chance to live and achieve the best outcome in any state in this country.

Gloria Frank recently co-wrote a series of six columns in Arizona Copper Courier About the SCOTUS EMTALA/abortion case and the new domestic terrorism against pregnant women. He previously founded and wrote a monthly publication for healthcare providers: “Credentials and Peer Review Legal Insider,” under the auspices of Brownstone Publishers, New York City. As a health and employment law expert, he has assisted Medicare & Medicaid programs with EMTALA, fraud investigation and prosecution, and other legal matters for over twenty years.