Facing a rupture of membranes before fetal viability – a condition in which water breaks too early – a pregnant patient in Texas desperately needed an abortion. She risked infection, sepsis, excessive bleeding and even death.
But her healthcare provider’s hands were tied by Senate Bill 8, a near-total ban in effect since September 2021, preventing her from accessing that potentially life-saving care in her home state. Despite the risk associated with air travel, she boarded a plane to obtain the procedure out of state. Her obstetrician cautioned that she could go into labor in-flight and give birth to a stillborn 19-week fetus. “If you labor on the plane, leave the placenta inside of you,” the doctor warned.
Even before Roe v Wade was overturned last month, paving the way for a pre-Roe ban to take effect in Texas, a different state abortion ban dramatically limited care after the detection of embryonic cardiac activity, typically around six weeks of pregnancy.
Despite a carve-out for medical emergencies, the law endangered the lives of high-risk pregnant patients, according to Texas researchers documenting its consequences in a recent New England Journal of Medicine study. Some patients needed to be “at death’s door” to receive pregnancy termination under the law, the paper found, underscoring how abortion bans create dangerous repercussions for complicated pregnancies.
The law, SB 8, offers no exception for rape, incest or severe fetal abnormality and has barred in-state care for the overwhelming majority of Texas abortion patients. For months after it was enacted, it was widely considered the strictest abortion ban in the US. Now, as nearly half of US states have either banned abortion or are about to, Texas offers an unsettling harbinger of what is to come.
“What we have seen in Texas could very well be a preview of what we will see elsewhere,” Dr Whitney Arey, lead author of the paper and researcher with the Texas Policy Evaluation Project, a group that tracks the impact of state reproductive health policies, told the Guardian. “These narrow exceptions in abortion bans create a climate of fear for providers, which will be really dangerous for some of the most vulnerable patients and put many lives at risk.”
In an effort to address the problem, the Department of Health and Human Services (HHS) on Monday issued guidance making clear that abortion must be available in emergencies, regardless of state restrictions.
But experts stress the rule will be only symbolic without strong government enforcement and public awareness. The Texas law’s exception for “medical emergencies” is not well-defined, leaving hospitals and clinicians often erring on the side of caution, and it is unclear whether the HHS rule will change that. The law empowers anyone to sue a provider or someone who “aids or abets” an illegal abortion for damages of at least $10,000, creating a “chilling effect” on health care professionals.
“Even if the guidance is pretty clear, I think some doctors in these situations will still find it a really challenging decision to make,” said Mary Ziegler, a professor at the University of California, Davis who specializes in the legal history of reproductive health. “They may continue to be uncomfortable – especially considering some of the harsh penalties in state abortion laws, including life in prison.”
‘They are waiting until heart failure’
In Texas, patients with medically complex pregnancies or preexisting medical conditions are being forced to delay abortion care until their situations become life-threatening or until fetal cardiac activity is no longer detectable, according to the study, which was conducted by abortion providers, researchers and maternal-fetal medicine specialists, who interviewed 25 clinicians and 20 patients with high-risk pregnancies.
One ob-gyn recalled only a single patient who was able to obtain an abortion at their hospital under the law’s exemption, after her severe cardiac condition had worsened to the point that she was admitted to the intensive care unit. In “multiple cases”, treating physicians sent patients home, only to see them return with signs of sepsis, the paper notes.
“Some doctors are no longer offering termination when there is risk of death for the pregnant patient,” Dr Lorie Harper, chief of maternal-fetal medicine at the University of Texas at Austin Dell Medical School, said. “They are waiting until heart failure, waiting until hemorrhaging, waiting until a patient needs to be intubated, or is [having organ failure]. Patients have to be a lot sicker before they receive life-saving care – and not every patient who becomes that critically ill will recover.”
The researchers worry about a rise in cases of maternal mortality as a result of pregnant people being denied care. Texas already holds a maternal death rate higher than the US average, with Black women disproportionately affected. Overall, the US has the highest maternal death rate among similarly developed countries and is the only industrialized nation where such deaths are rising.
Fearing lawsuits and potential loss of medical license, some Texas clinicians believe they are not allowed even to inform patients about abortion in cases of increased maternal risks or poor fetal health, provide any information about out-of-state abortion clinics or transfer patient records to those clinics.
The study recounts the story of a 39-year-old woman who, after receiving a fetal diagnosis of spina bifida and a chromosomal disorder, was “shocked” that her doctor would not even inform her about termination options. “When you already have received news like that and can barely function, the thought of then having to do your own investigating to determine where to get this medical care and to arrange going out of state feels additionally overwhelming,” she told them.
In an amicus brief to the supreme court, two dozen health care organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, underscore that abortion bans with narrow exceptions force clinicians to make an “impossible choice” between upholding their ethical obligations and following the law. “In forcing physicians to wait until a patient is close enough to death that they will risk their license to practice medicine to save her life by providing needed abortion care, the state indefensibly jeopardizes patients’ health,” they write.
A 1925 pre-Roe abortion ban is now in effect in Texas after it was upheld by the state supreme court. It bars all abortions with rare exceptions for the life of the mother. Abortion providers are challenging that century-old ban in court, but they are also up against a “trigger” law set to take effect at some point this summer, which would have a similar impact.
Texas researchers hope their work provides a cautionary tale to other states navigating the post-Roe landscape.
“It is really frustrating to not be able to offer patients the full range of healthcare information and services,” said Harper. “I fear that this all could get much worse under these trigger laws. I really fear for patients’ lives.”
