As state laws concerning abortion shift in the aftermath of the Supreme Court’s decision to overturn Roe v. Wade, some medical professionals have questioned whether they can treat high-risk pregnancies without fear of legal retribution.
At a Senate committee hearing on the issue Wednesday, experts outlined their concerns surrounding penalties for performing emergency abortions — like in the case of an ectopic pregnancy or miscarriage — in states with laws criminalizing abortion. Yet senators were split on party lines as to the problem’s severity, with Democrats airing worries the laws put pregnant people at high risk and Republicans arguing they include protections in place for the life of the mother.
In states like Texas and Oklahoma, civilians can sue individuals and providers who aid and abet in abortion procedures for up to $10,000. In Arkansas, providing an abortion is a felony and punishable by up to 10 years in prison and a fine of up to $100,000. Exceptions are in place for procedures done to save the life of a pregnant person, and the law only targets providers, shielding patients from penalties.
Without clear standards and guidance, the patchwork state laws mean medical professionals are being told to “sit on your hands until women are at dire risk before you can do what is medically necessary,” Health, Education, Labor and Pensions Committee Chairwoman Patty Murray, D-Wash., said during the hearing.
“It's very unclear what these laws mean for providers on a day-to-day basis,” Kristyn Brandi, board chair of advocacy group Physicians for Reproductive Health, testified to HELP.
For instance, if a pregnant patient’s water breaks at 18 weeks of pregnancy, it's unlikely the baby will be able to make it full-term. Without treatment the mother could develop an infection, become septic and potentially end up in the intensive care unit, Brandi said.
“We want to follow the standard of care and that would be to intervene at that moment, but these laws don't really specify and it's very confusing for the people on the ground,” she said.
Brandi pointed to a June paper in the New England Journal of Medicine that interviewed 25 clinicians in Texas to gauge the impact of its abortion law. The study found that the law had a chilling effect, confusing providers and leading them to delay medical care until pregnancy conditions became life-threatening.
Senator Roger Marshall, R-Kan., a former practicing OB-GYN, said new state laws will still allow healthcare providers to treat ectopic pregnancies and miscarriages, and that they all include exceptions for saving the life of the mother.
But “when abortion is difficult or impossible to access, complicated health conditions can worsen and even result in dealth,” Jamila Taylor, director of healthcare reform at the Century Foundation, testified.
In the weeks since Roe was overturned, pharmacists too have been reluctant to dispense certain drugs that can induce abortion though are prescribed to treat other conditions like lupus, lawmakers said during Wednesday’s hearing.
On Tuesday, the HHS published guidance for retail pharmacies reiterating their obligation to supply prescribed medications under federal civil rights law.
The agency also instructed doctors in a Monday letter that they are legally required to provide emergency medical care to patients, which may include abortions, regardless of state laws.
In the letter, HHS Secretary Xavier Becerra said the Emergency Medical Treatment and Active Labor Act, commonly referred to as EMTALA, “protects” the clinical judgment providers may take in treating pregnant patients.
“Any state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the EMTALA statute,” Becerra said in the letter.