One year ago today, the U.S. Supreme Court made the unprecedented decision to end the constitutional right to abortion, striking down the 1973 Roe v. Wade ruling that legalized abortion nationwide. Last year's decision in the case of Dobbs v. Jackson Women's Health Organization upheld a Mississippi law that banned most abortions after 15 weeks of pregnancy. The decision gave each state the individual right to enforce their own abortion restrictions, many of which had so-called "trigger laws" with six-week abortion bans.
Chaos ensued as many state statutes made providing an abortion illegal, rather than prosecute those getting them. Depending on the state, the result could be penalizing abortion care providers with a high fee — or sometimes, slapping on prison sentences. While there were some exceptions, such as cases of life endangerment for the mother, the language in many states was intentionally vague.
Today, the status of abortion care continues to vary state by state, creating a fractured and dangerous landscape for maternal health care. Access to abortion can change often, as legal appeals and legislation passing shifts the permissible.
According to a new KFF survey of about 570 OBGYNs across the nation, 64 percent think pregnancy-related mortality has worsened post-Dobbs, while 42 percent of OBGYNs say they are "somewhat" or "very" concerned about their own legal risk when it comes to making a decision about abortion necessity.
However, this figure rises to 59 percent in states with gestational limits and 61 percent in states with abortion bans. More than half of the OBGYNs surveyed said they have seen an increase in patients seeking some form of contraception — including 43 percent who sought sterilization. One in five said they have personally felt constraints on their ability to provide care for miscarriages.
Last year, right after Dobbs, Salon spoke with Dr. David Hackney, a Cleveland-based maternal fetal medicine specialist and chair of the American College of Obstetrics and Gynecologists Ohio chapter. He expressed concerns about one particularly troubling scenario: What if an otherwise healthy pregnant person found out their fetus had a lethal fetal anomaly, and would not be able to survive outside of the uterus? Would that person be forced to carry that pregnancy to term, despite knowing the fetus wouldn't survive?
Salon caught up with Hackney again, nearly one year later, to see how those predictions panned out.
This interview has been condensed and lightly edited for clarity.
First, tell our readers what you do as a maternal fetal medicine specialist.
We manage high-risk pregnant patients. But high-risk is not always cleanly defined. It can be a little bit more gray in terms of how we define risk, but globally, we manage patients who are pregnant, and there's either a health problem with moms — such as pregnant patients who have diabetes, high blood pressure or lupus. Basically, any health problems that a human has, or there's some sort of fetal problem or fetal concern — birth defects or genetic disorders.
Last year when we spoke, you said you felt like the legal ground had "entirely changed beneath my feet." How are you feeling today, one year later?
Well, SB23, the law which went into effect on the day of the Dobbs decision itself was in effect for about a three month period, and has been under injunction ever since. And then we have a ballot initiative coming up in November here [in Ohio], so I feel like after Dobbs, one national story became fifty different stories with a different story in every state. I feel as though our story in Ohio is very unique, in the sense that we were under a lot between between a three and four-month period. But then we've also been out of it for several months and are not under it now. So we both experienced a life under that law. We know how bad it was. We know what it feels like, but we're not under it now. And we're also the only state that's going to have a ballot initiative in 2023. We are sort of both actively in the middle of a fight in that regard, and have a potential light at the end of the tunnel.
"There's no medical need for a 24-hour waiting period."
I feel like when I talk to colleagues from other states, people are in one of two boats. Either they're in a very safe blue state and they're doing work and they're concerned, but there's not sort of an active, if you will, fight going on at that time. Or there are states in which the scenario is far worse than ours, both they're under laws — and we're currently fortunately under injunction — or they may not have a clear path forward, like a ballot initiative.
When the Dobbs decision came down, I felt as though Ohio was a particularly rough state to be in, especially that day since a lot of change that very day, right? Now, I'm actually quite happy to be here because we're both not under SB 23, and we have an active path forward. We have an active fight on our hands.
So, currently, abortion is still legal up to 22 weeks in Ohio?
Yes. Of course, all the laws which existed before Dobbs are still in place — many of which are harmful or not needed. The world under Roe, before Dobbs, was certainly not an optimal circumstance itself. We have a 24 hour waiting period. You have to offer patients to listen to the heart rate. We have a ban on procedures for the intent of Trisomy 21 [one of the characteristics of Down syndrome], and the 22 week limit. So I would definitely not want to characterize things as exactly as good as they should be here. But SB 23 is not under enforcement at this time.
"You enter obstetrics, certainly aware of the potential for civil liability. And that always is a concern that hangs over your head."
So are you concerned about your own legal risk, as many OBGYNs are in the country?
Right now, I'm not concerned about my own legal risk. Certainly we had a tremendous quantity of concern about our legal risks while we were under SB 23. Specifically, it was vague and a lot of the exceptions or areas in which we have to be under in an affirmative defense for maternal health conditions were unclear, and the risks that we face and that many of my colleagues in high risk obstetrics and other states right now face, are criminal charges. And criminal charges is very much a zebra of a different stripe.
You enter obstetrics, certainly aware of the potential for civil liability. And that always is a concern that hangs over your head. But from a sort of emotional psychological standpoint, you get used to it over time. You learn about it, you do your best to prepare for it, yourself or colleagues may go through it. But then when the potential for criminal liability comes along, that's something totally different and totally new. And so we don't have a background. We don't have a track record. We don't have case law. The consequences are greater. So that specter has been incredibly stressful to be under.
Can you share more about those three months — what was that like for you?
Yeah, you can divide a lot of the cases where our care maternal-fetal medicine intersects with abortion into fetal or maternal cases. Of course, sometimes it's both. For the fetal cases, the circumstances were tragic, but legally straightforward. The law SB 23 made no exceptions for any fetal conditions, including birth defects which are lethal. In those cases, it was stressful and it was tragic, but there was no question about what we could do and what we were able to do.
We did try our best in those circumstances to get those patients out of state. Of course, out of state care is complicated, especially because a lot of other states have waiting periods.
"The law SB 23 made no exceptions for any fetal conditions, including birth defects which are lethal."
There's no medical need for a 24-hour waiting period. And especially if the patient has to go out of state, especially if the 24-hour clock will not start until the patient is out of state and standing in an office, then you're usually going to look at a day of travel and then start the 24 hour clock when they arrive. And then often they'll need cervical dilation or surgical preparation procedures, which may take 24 hours. And then you have the procedure after that. So between travel and administrative boundaries, that can turn into days. And if it turns into days, then even patients who have the economic means to do so may not be able to do so, if it means time away from family or time away from work. But that's the fetal half.
The maternal half was stressful and not straightforward. If you're looking at the potential need to end a pregnancy for maternal health indications, those are usually circumstances in which the patient's not going to be able to travel. SB 23 listed five maternal health exceptions. There was language regarding health and life, but the language was vague and certainly we did not receive a lot of specific guidance.
For example, what would we do if we had a pregnant patient who had cancer? The word "cancer" did not appear anywhere in SB 23. The Attorney General issued a "explainer" on SB 23 also did not include the word cancer. So what you do with patients who have cancer is unclear. And likewise, there was an affidavit which was issued in conjunction with a ruling from the judge in Cincinnati placing the injunction on SB 23, which detailed two patients in the states who were pregnant and had cancer and did not receive cancer care.
That's so horrific. Last year, going back to the fetal part, you said going down the path of being forced to carry a fetus with a lethal anomaly would be an "unequivocal nightmare" for you. It sounds like you had to face that nightmare scenario within those three months then?
"It's not some sort of cruel mistake. It's difficult to even conceive of. It really does feel like there's a legal definition of torture. It feels like it would meet that bar."
I can't really talk about specific patients or circumstances, but I can say definitely that my colleagues in Ohio did. In media reports, which are public, there were reports of patients with birth defects, serious ones, as well as publicly available cases of the old birth defects in other states, such as Florida and Texas and other areas where they had to be forced to continue.
And I certainly know talking to colleagues in many of those similar states and those have been in the circumstances that they have been in. It's definitely occurring. We definitely knew that it would occur. Again, this was explicitly written into the law. It's not some sort of cruel mistake. Or something along those lines. It's difficult to even conceive of. It really does feel like there's a legal definition of torture. I'm not a lawyer, but it feels like it would meet that bar.
What do you wish more people understood about where we are one year post-Dobbs?
Everything that we worried about would come true. SB 23 was debated in Ohio back in 2019. It was passed in 2019. And then it was just held up in injunction until the Dobbs decision.
I wrote an editorial against it in 2019, which was published in the Columbus Dispatch and I was curious the other day, and I pulled my 2019 editorial, I read it and everything came true. All of the bad things which we said would happen, happened.
