Jun 28, 2022 - Health

Defining "life-threatening" can be tricky in abortion law exceptions

Illustration of two gloved doctor's hands holding a speculum, with handcuffs on their wrists

Illustration: Annelise Capossela/Axios

While most state abortion bans include some sort of exception when the life of the mother is at risk, it will fall to doctors to prove whether a patient qualifies in an emergency, or possibly face charges.

Why it matters: Every case is unique — and the murky wording of some of the laws could create confusion and put pregnant women's lives at risk, experts say.

What they're saying: "What these laws do is they place physicians in an untenable position not knowing that if they serve the medical interests of their patients, whether they'll be subject to criminal liability," Lawrence Gostin, a law professor at Georgetown University, told Axios.

  • "At best, it will make physicians hesitate to save the life of a woman; at worst, outright refuse to."

State of play: The language of abortion bans and their exceptions varies from state to state, with some laws dating to the 1800s while more recent ones use benchmarks such as "detectable cardiac activity."

  • They are "often incorrect, not clinically meaningful, and therefore confusing to those practicing medicine," said Jen Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists (ACOG), said in a statement.
  • In some cases, the life of a pregnant person may be in imminent danger, but in other cases, the risk of death may be harder to quantify, Villavicencio said. "It also doesn't take into account the varying risk thresholds of the individual patients."
  • An ectopic pregnancy can reveal "cardiac activity" in the fetus, as can a miscarriage, Lori Gawron, a Salt Lake City obstetrician and officer for Utah's ACOG section told Axios. Intervening in such situations could run afoul of so-called heartbeat laws that ban abortion after six weeks. "How soon can [a doctor] intervene before the patient gets super sick or needs blood transfusions or other interventions to save her life?" she said.

Between the lines: There are some clear-cut cases where a woman is acutely hemorrhaging or involved in a trauma situation where continuing the pregnancy puts a woman's life at risk.

  • "That usually is pretty straightforward and I think most providers would feel comfortable acting in that setting," Gawron said. "But that's not the reality of most maternal life risks."
  • Gawron pointed to a scenario like a ruptured membrane in the second trimester which greatly increases the risk of infection to the mother. "If the infection progresses to sepsis, the maternal life is absolutely at risk. But we can't say how long that will take or how severe the infection will get in that individual," she said.
  • Other scenarios, like maternal cardiac issues, present a growing risk to a mother the further her pregnancy progresses, but might not pose a clear "imminent" risk. Or in the case where a mother is diagnosed with cancer, it might not be clear whether termination of her pregnancy would be allowed in order for her to pursue treatment such as chemotherapy.
  • "So much of medicine is a gray area. We can talk about a certain proportion of patients having an adverse outcome but we can't say 100% it will happen to the person in front of us and how long it will take to happen," Gawron said.

The other side: Anti-abortion advocates say the exceptions offer adequate protection for medical emergencies.

  • "I don't see any doctor that is going to hesitate and think he's not going to treat his patient because there might be some law," Carol Tobias, president of the National Right to Life Committee told U.S. News recently. "That's why the exception is written in there. If the mother's life is in danger, he's not going to be charged with anything," she said.
  • In some states, such as Wisconsin, some anti-abortion advocates want exceptions for the life of the mother eliminated completely.

The consequences of violating a ban could be severe, ranging from the possibility of life in prison in Alabama to misdemeanor charges or the loss of a license in other conservative states.

What to watch: Medical societies in some areas have begun trying to reach a consensus around what scenarios are appropriate to terminate a pregnancy to protect the life of a mother in anticipation of legal challenges.

  • "It's a sensible thing to do because it gives health care professionals a sense they are acting in unison and that they'll have their back," Gostin said. "Hopefully, if it's a medical consensus, the courts will respect that."
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