Unclear Language Of Abortion Ban Exceptions Risks Patient Health

In September 2022, Senator Lindsey Graham (R-SC) proposed legislation for a 15-week national abortion ban, with few exceptions. Similar to those implemented in other states with total bans, this bill proposes to only permit abortion to “save the life of a pregnant woman whose life is endangered by a physical disorder” as determined by a physician’s “reasonable medical judgment.” It is imperative to clarify these laws and outline definitive treatment options for health care providers to safeguard patient health.

As physicians, our “reasonable medical judgment” is that all pregnancies come with risk, especially in the United States. Most states do not explicitly name conditions that qualify for life endangerment exceptions. The federal law Emergency Medical Treatment and Labor Act (EMTALA) names abortion as “stabilizing medical treatment necessary to resolve emergency conditions” regardless of state law. However, on a spectrum between life-threatening emergency and guaranteed safety, almost all pregnancies exist in the middle. With inadequate guidance, the minutes, hours, or days potentially needed for clarification come with consequences.

Some states, such as Arkansas, name exceptions for abortion due to ectopic pregnancy—a pregnancy occurring outside the uterus. The most common site of ectopic pregnancy is within the fallopian tube, which cannot result in a live birth. If allowed to continue, the pregnancy ruptures the fallopian tube, leading to potentially fatal internal bleeding. An ectopic pregnancy carries risk without reward, making decision making for providers and patients straightforward.

An uncommon form of ectopic pregnancy, but one we see in our hospital several times per year, is cesarean scar pregnancy. Here, the pregnancy embeds into the uterine scar from a prior C-section. Because the pregnancy is inside the uterus, it may not be considered a true ectopic—but can also have devastating consequences. The uterus may rupture before the baby can survive, putting the patient at high risk for internal bleeding, hysterectomy, and potential death. However, unlike tubal ectopics, the uterus may be able to accommodate the pregnancy and a live birth is possible. The placenta may also grow through the uterus and attach to nearby organs to cause a condition called placenta accreta. In such instances, removing the uterus is usually required at the time of C-section to manage life-threatening bleeding. In our state of New Jersey, where access to abortion is not restricted, we provide patients with all of this information and they decide whether or not to continue their pregnancies. Prohibiting the option to end this type of pregnancy would prioritize fetal life over the life of the patient, contrary to good medical practice. In states with unclear exceptions to total bans, how should physicians apply the law to cesarean scar pregnancies?

There are other clinical situations where delivering a live child is possible but puts the pregnant person at significant risk. For example, we recently cared for a patient whose water broke before the fetus could survive outside the uterus. After counseling, she chose to continue her pregnancy and ultimately delivered a living child at just 23 weeks but developed an infection that required a long intensive care unit stay after a life-saving emergency hysterectomy. Another patient may have ended her pregnancy to prevent such complications. Informed choice is essential and requires legislation that provides sufficient guidance so that patients may be offered options that protect their lives from unnecessary harm.

It is unclear how the language of law applies in these scenarios. In Louisiana, the law only permits abortion for prevention of “serious risk of the substantial and irreversible impairment of a major bodily function.” Does loss of one’s uterus count as a substantial impairment or major bodily function? If so, what risk of hysterectomy is permitted—10 percent, 50 percent, 99 percent? Vague advice to use “best medical judgment” leads to ambiguity that requires physicians to consult lawyers and ethics committees to determine patient care. If each patient is subject to the biases of individual lawyers, courts, and physicians, the law is bound to be applied unevenly. What happens to someone brought by ambulance to a hospital that prioritizes fetal life, when another hospital would have intervened for the sake of the pregnant person?

Instead of judging each case individually, certain conditions should be clearly and unambiguously codified into state law. Lawmakers should collaborate with maternal-fetal medicine and complex family planning specialists to create a list of high-risk scenarios, allowing clinicians to care for patients with clearer guidelines. We recommend that any state considering an abortion ban be required to commission a cohort of medical experts in these fields who currently practice in that state. This group would be tasked with crafting explicit language in a comprehensive format describing the many scenarios that could apply under the “life endangerment” exception—including ectopic, placenta accreta spectrum, previable rupture of membranes, pre-viable pre-eclampsia with severe features, severe pre-existing health conditions, and more. One mechanism to accomplish this could be through state legislatures establishing committees with regional districts of the American College of Obstetricians and Gynecologists with support from high-risk obstetricians in the Society for Maternal-Fetal Medicine to develop unambiguous guidelines for care. This is not dissimilar to the idea of individual states creating guidelines created for provision of health care during the COVID-19 pandemic. While it may be difficult to include every single applicable situation, providing more detailed descriptions of conditions that would apply—such as maternal hemorrhage or sepsis—could provide further clarity. If these conditions are embedded into the law, discrepancies and uncertainties can be more easily avoided.

Putting together such guidelines will not be a trivial undertaking. For example, those with a history of peripartum cardiomyopathy, a condition causing heart failure during pregnancy or after delivery, are at risk of recurrence in subsequent pregnancies—which puts the pregnant person’s life in danger. However, risk of recurrence depends on whether there has been a recovery of heart function or not. Committees would need to establish what level of risk would justify termination of pregnancy in their state so procedures can occur without unnecessary delay or need to judge each case individually. Any delay could bring a pregnancy past a gestational age in which an abortion would be permissible for any reason, further jeopardizing a patient’s health.

While we denounce legislation that restricts abortion access, we encourage states seeking bans with exceptions for life endangerment to critically engage with physicians to create unambiguous laws that allow us to protect our patients’ health.

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