With the election looming and recent revelations about Amber Nicole Thurman and Candi Miller having lost their lives under the Georgia abortion ban, it is tempting to stick to the partisan political scripts when pregnant women become emergent. According to liberals, conservative legislators cannot write clear abortion ban exceptions. Liberals argue they habitually write unclear exceptions as a smoke screen. According to conservatives, liberals label exceptions as vague and confusing to scare voters into supporting abortion rights, which results in fearful physicians refusing to perform abortions.
This is what I know: More women besides Amber and Candi have died. The numbers paint a grim picture. In Texas alone, child mortality jumped 12.9% in the year following their abortion ban – compared to just 1.8% in states without bans. Even before Dobbs, more than 80% of pregnancy-related deaths were preventable. Now, according to a KFF survey, 68% of obstetricians and gynecologists report the Dobbs decision has made it harder for them to respond to pregnancy-related emergencies. For Black women, who already die from pregnancy-related causes at three times the rate of white women, these bans have made a dire situation worse.
Even if we elect Harris as the next president, nearly half of states will maintain restrictive abortion bans. This problem will not disappear.
Today, physicians, attorneys, ethicists, activists, journalists and others are grappling with this tragedy. Now is the time for action rather than hand-wringing and blaming. We must move beyond narrative and envision a solution, however imperfect. To quote Angelica Schuyler in Lin-Manuel Miranda’s “Hamilton”: “You want a revolution? I want a revelation!”
The solution requires using the exceptions as currently written, augmented by guidance from court decisions, Attorney General (AG) opinions, and other directives. I’m sick of hearing people say it can’t be done. If Dr. Henry Morgentaler could practice civil disobedience in Canada by performing abortions, and change national law, today’s medical professionals can figure out how to interpret statutory terms such as “serious,” “substantial,” “irreversible,” and “reasonable medical judgment.” If American women with no clinical training could provide underground abortions in defiance of the law, American physicians can uphold their Hippocratic Oath despite statutory language covering a variety of medical scenarios. Laws are written to be fleshed out by case law and executive branch guidance. Abortion law is no exception.
Notably, no state has prosecuted a physician for performing an abortion.
Critics may argue that the absence of prosecutions doesn’t eliminate professional risk. They point to potential medical license investigations, hospital privilege reviews, and civil liability. However, these fears overlook key protections. State medical boards typically defer to physicians’ “reasonable medical judgment” – the same standard used in abortion exceptions. Hospital ethics committees can provide institutional backing for emergency care decisions. And medical malpractice insurance generally covers care provided under legal exceptions. The greater liability risk may actually come from delaying or denying necessary care.
The Emergency Medical Treatment and Labor Act (EMTALA), a federal law guaranteeing stabilizing treatment in hospital emergency departments, defines “emergency medical condition” using terms such as “acute symptoms of sufficient severity” and “serious impairment of a bodily function.” Physicians and hospitals have interpreted this law since 1986 with court decisions and guidance from the Medicare program; no court has struck down EMTALA as too vague or imprecise.
“Reasonable medical judgment” is a phrase commonly used in medical malpractice law.
Since the Dobbs decision, advocacy groups, obstetricians, and women who have survived pregnancy-related emergencies have sued states with abortion bans arguing that the exceptions are unclear. The results have been mixed—not strong enough to wait for litigation and appeals in all states with abortion bans.
In State of Texas v. Zurawski , a Texas Supreme Court decision denied relief to two obstetricians and a group of women who survived harrowing pregnancy complications. The plaintiffs sought to expand the mother’s life exception. The court ruled that the one obstetrician with standing to sue had based her lawsuit on hypothetical emergency situations, which was fatal to the lawsuit. The pro-choice movement vilified the court as misogynist. However, this overlooks crucial guidance in the ruling. The decision includes very helpful verbiage, such as: “[T]he law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk…[I]n an enforcement action under the [abortion ban], the burden is the State’s to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or of substantial impairment of a major bodily function unless the abortion was performed…The law does not require the life-threatening physical condition to have already caused damage before a physician can act to preserve the mother’s life or major bodily function” (emphasis in original).
In her concurring opinion, Justice Lehrmann quoted an Oklahoma court with approval: “[R]equiring a patient ‘to be in actual and present danger’ or ‘to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest’” (emphasis added). She further stated: “A woman’s right to access life-saving medical care without undue interference by the government is deeply rooted in our history and tradition, essential to our Nation’s scheme of ordered liberty, and enshrined in the explicit language of the Fifth and Fourteenth Amendments [of the U.S. Constitution].”
Several other states have provided guidance, including the attorney generals in Oklahoma and Kentucky and the Department of Health (DOH) in South Dakota. The DOH included a non-exhaustive list of 14 medical conditions that are potentially life-threatening under the state’s exception.
Women are dying, let’s wake up to reality. Abortion ban exceptions are not unclear as a general matter; physicians are afraid to use them. The Center for Reproductive Rights even filed EMTALA complaints against two Texas hospitals for failure to timely remove ectopic pregnancies, which are explicitly exempt from the statutory definition of “abortion” in Texas.
What exactly was unclear about aborting an ectopic pregnancy? Moreover, state guidance—including case law—on exceptions provides some assurance and should be taken seriously by the medical community.
We need doctors to overcome their fears and stop using the rhetoric as an excuse to not provide the necessary care to these women. They need to apply the standard of care to pregnant women as they would to any patients. They should provide the proper treatment based on any patient’s particular circumstance. This will involve interpreting statutory terms as they have previously been interpreted in other, less politically charged, contexts.
Let’s get off the “it can’t be done” bandwagon and understand that pregnant women are deserving of proper care—and a chance to live and achieve the best outcome – in any state in this country.
Gloria Frank recently co-wrote a series of six op-eds in the Arizona Copper Courier on the SCOTUS EMTALA/abortion case and the new domestic terrorism against pregnant people. Previously, she founded and wrote a monthly publication for healthcare providers, “The Credentialing & Peer Review Legal Insider,” under the auspices of Brownstone Publishers in New York City. A healthcare and employment law expert, she assisted the Medicare & Medicaid programs for over two decades on EMTALA, fraud investigation and prosecution, and other legal topics.
