How Doctors Are Weighing the Legal Risks of Abortion Care
Editor’s note: The names of the doctors in this story have been changed at their request due to fear of legal repercussions and/or professional retaliation.
July 26, 2022 – When an Ohio OB/GYN had a patient in need of an abortion this month, he knew he had to move quickly.
Daniel, who also sees patients at an abortion clinic, was treating a woman who came in for an abortion around 5 weeks into her pregnancy. And after going through the mandatory waiting periods, the required ultrasounds at each appointment, the consent process, and the options counseling, she was set for a surgical abortion the following Monday.
But on Monday, pre-op tests showed that her blood pressure was very high, posing a serious health risk if Daniel proceeded with the surgery.
Before the Supreme Court overturned Roe v. Wade in June, Daniel would have sent the patient home with instructions on how to lower her blood pressure over time. But the patient now had just four days to show the necessary improvement.
In this case, everything worked out. The patient returned Thursday and was able to have the procedure. But this is just one of the many day-to-day medical decisions abortion providers are now having to make, with the changing legal risks being as top-of-mind to doctors as the safety of their patients.
Daniel said he doesn’t want the Ohio abortion law to change the way he communicates with his patients. As far as he knows, it’s still legal to talk to patients about self-managed abortions, as long as everything is unbiased and clearly stated, he says.
“But I don’t think I would get a lot of institutional support to have those conversations with patients because of the perceived legal liability,” says Daniel. “I will still have those conversations, but I’m not going to tell my employer that I’m having them and I’m not going to document them in the chart.”
Daniel is aware that having these kinds of discussions, or entertaining the possibility of omitting certain information from patient records, runs the risk of legal and professional consequences. Enforcement of these rules is foggy, too.
Under the Ohio law, if a fellow staff member suspects you of violating a law, you could be reported to a supervisor or licensing body., Abortion providers are aware they must be cautious about what they say because anti-abortion activitists, posing as patients, have secretly recorded conversations in the past, Daniel says.
Enforcement: The Past, Present, and Future Legal Risks
Before Roe, enforcement of illegal abortion was spotty, says Mary Ziegler, JD, a professor at Florida State University College of Law, who specializes in the legal history of reproductive rights. At the start of the late 19th century, the doctors who provided illegal abortions would, in most cases, be prosecuted if a patient died as a result of the procedure.
A doctor in Ashland, PA, named Robert Spencer was known for providing abortions in the small mining town where he practiced in the 1920s. He was reportedly arrested three times – once after a patient died as a result of abortion complications – but was ultimately acquitted.
For many doctors performing abortions at the time, “it was very much a kind of roll of the dice,” Ziegler says. “There was a sense that these laws were not enforced very much.”
Carole Joffe, PhD, a sociologist with expertise in reproductive health, recalls that there were very few doctors arrested, given the sheer number of abortions that were performed. The American College of Obstetricians and Gynecologists estimates that, in the years leading up to the original Roe decision, a about 1.2 million women in the U.S. had illegal abortions – a number that exceeds today’s estimates.
Among the most notable cases of a doctor being detained was the arrest of gynecologist Jane Hodgson in 1970. Hodgson intentionally violated Minnesota law, which prohibited all abortions except in cases that were life-threatening to the patient.
After performing an abortion on a patient who had contracted rubella, also known as German measles, Hodgson was arrested, sentenced to 30 days in jail, and put on a year-long probation. She did not end up serving any time in jail, and her conviction was overturned after the Roe decision in 1973.
Now, the abortion restrictions being passed in many states have authorized much more sweeping penalties than those that existed in the pre-Roe era. According to Joffe, there is one key reason why we can anticipate more doctor arrests now.
“There simply was not the modern anti-abortion movement that we have come to know,” she says. “In the old days, there was not that much legal surveillance and things were very unsafe. Fast forward to the present, we have much safer options now – like mediation abortion pills – but we have a very different legal environment.”
Carmel Shachar, JD, a law and health policy expert at Harvard Law School, also expects that we will see more frequent prosecutions of doctors who provide abortion.
“There’s so much more data available through medical record-keeping and information generated by our phones and internet searches, that I think it would be much harder for a physician to fly under the radar,” Shachar says.
Also, Shachar emphasizes the power of prosecutorial discretion in abortion cases, where one prosecutor may choose to apply a law much more aggressively than another prosecutor in the next county over. Such has been seen in DeKalb County, Georgia, which includes parts of Atlanta, where District Attorney Sherry Boston says she plans to use her prosecutorial discretion to address crimes like rape and murder, rather than “potentially investigat[ing] women and doctors for medical decisions,” Bloomberg Law reported. State Sen. Jen Jordan, the Democratic nominee for Georgia attorney general, has also said that, if elected, she would not enforce the state’s new 6-week abortion ban.
Is There a Legal Path Forward for Abortion Care in States that Forbid It?
Robin, an OB/GYN, became a complex family planning fellow in Utah to seek out further medical training and education in abortion care. Her plan was to solidify this as an area of expertise, so that, upon completing her fellowship, she could move back to her home state of Arizona to provide services there.
In Utah, where she currently practices, abortion is banned after 18 weeks. In Arizona, abortion is still allowed up to 24-26 weeks, until a pregnancy reaches “viability” (when a fetus is developed enough that it is able to survive outside the uterus with medical assistance). But new restrictions in Arizona may go into effect as early as September, which would prohibit abortions after 15 weeks.
Despite the uncertain future of abortion access in Arizona, Robin still plans on moving there after her fellowship, but she hopes to travel to surrounding states to help provide abortion care where it’s less restricted. Even if she isn’t able to provide abortions at all, she says that there are still ways to help patients get safe, above-board abortions so as not to repeat the dangerous and often gruesome outcomes of self-induced abortions or those done by illegitimate practitioners before Roe.
“One of the roles that I think I can have as a physician is helping people with wraparound care for self-managed abortion,” says Robin. “If they can get the [abortion] pills online, then I can do the ultrasound beforehand, I can do the ultrasound after, I can talk them through it. I can help them with all the aspects of this care, I just can’t give them the pills myself.”
Whether a doctor can be penalized for “aiding and abetting” abortions that happen in different states remains an open question. In Texas, for example, Senate Bill 8 – which took effect September 1, 2021 – not only established a fetal heartbeat law, but added language that would allow private citizens to sue anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” or anyone who even intends to do so.
That’s what happened to Alan Braid, an OB/GYN based in San Antonio. He confessed in a Washington Post op-ed that he had performed an abortion after cardiac activity had been detected in the pregnancy. Aware of the legal risks, he has since been sued by three people, and those cases are still underway.
But Ziegler says the chances of a doctor from a progressive state actually getting extradited and prosecuted by a state with restrictive abortion laws is pretty low – not zero, but low.
Like Robin, Natalie – an OB/GYN in her early 30s – is a complex family planning fellow in Massachusetts. After her fellowship, she wants to return to Texas, where she completed her residency training.
“I’m at the point in my training where everyone starts looking for jobs and figuring out their next steps,” says Natalie. “The Dobbs decision introduced a ton of chaos due to the vagueness in the laws and how they get enforced, and then there’s chaos within institutions themselves and what kind of risk tolerance they have.”
Looking towards her future career path, Natalie says that she would not consider a job at an institution that didn’t allow her to teach abortion care to students, speak publicly about abortion rights, or let her travel outside of Texas to continue providing abortion care. She’s also preemptively seeking legal counsel and general guidance – advice that Ziegler strongly urges doctors to heed, sooner rather than later.
In states that have strict abortion bans with exceptions for life-threatening cases, there is still a lack of clarity around what is actually considered life-threatening enough to pass as an exception.
“Is it life-threatening in the next 6 hours? 24 hours? Seven days? One month?” Robin asks. “In medicine, we don’t necessarily talk about if something is life-threatening or not, we just say that there’s a high risk of X thing happening in X period of time. What’s the threshold at which that meets legal criteria? Nobody has an answer for that.”
Robin explains that, in her patients who have cancer, a pregnancy wouldn’t “necessarily kill them within the span of the next 9 months, but it could certainly accelerate their disease that could kill them within the next year or 2.”
Right now, she says she doesn’t know what she would do if and when she is put in that position as a doctor.
“I didn’t go to medical school and become a doctor to become a felon,” says Robin. “Our goal is to make as many legal changes as we can to protect our patients, and then practice as much harm reduction and as much care as we can within the letter of the law.”
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