Hospitals and doctors are struggling to toe the line between providing life-saving measures for women and wading into a legal gray area that’s emerged in the absence of abortion rights.
In the weeks after the Supreme Court’s decision to overturn Roe v. Wade leaked, a pregnant woman visited Katie McHugh, a gynecologist and abortion provider in Indiana. The patient, who was between eight and 12 weeks pregnant, was bleeding and cramping. An ultrasound showed that a miscarriage was inevitable, but the woman had to cross state lines for treatment because her doctors in Kentucky refused to terminate the pregnancy.
That's because Kentucky is one of 22 states that had trigger laws to ban abortion in all or most cases when Roe was overturned. And in those states, physicians who violate the law can be prosecuted for a felony and face fines up to $100,000 and years in jail.
“They’re worried for their own legal safety, for their careers," said McHugh.
Though Kentucky allows exceptions for abortion when it will save a mother’s life, conflicting state and federal guidance has left doctors struggling to figure out how the bans — and exemptions — apply. In pregnancy emergencies, doctors have to weigh how rapidly a patient's health is deteriorating and make snap decisions to prevent a situation from becoming fatal.
Now physicians are grappling with the added stress of having to determine when it's legally OK to intervene. There's also the question of what happens when a patient has to undergo a treatment like chemotherapy, which can be toxic to a fetus.
“There's many gray areas that happen in medicine,” said Rebekah Gee, a former secretary of Louisiana’s health department and founder and CEO of primary-care company Nest Health. “The human body is very complicated. These laws are not gray, they're black and white.”
Many of the new abortion bans remain tied up in court — Kentucky's included. On Monday, the U.S. Department of Health and Human Services issued guidance saying that through its Emergency Medical Treatment and Active Labor Act, if an emergency abortion is necessary, the doctor “must provide that treatment.”
Even with the latest HHS guidance, Gee said doctors take laws like those in her home state of Louisiana seriously, and “given the grievous penalties will continue to practice in fear.”
“That fear of punishment aligned with the lack of clarity can lead to devastating consequences,” she said.
Sylvia Law, a New York University law professor who studies the intersection of the law and the U.S. health-care system, said that she hopes “the new guidance will make a difference. But, it will depend on the individual doctors, the hospitals for which they work and the lawyers who advise them.”
Law said doctors in states where abortion is banned may not be able to perform the procedure even if it’s the best way to remove a dead fetus, putting the patient at risk for septic shock. “There’s nothing in the Supreme Court’s opinion that tells you anything,” about such situations, she said.
It’s all left doctors to try to figure out when to provide critically needed care without violating state laws, according to Katrina Green, an emergency-room physician in Nashville, Tennessee. She and other providers have been in discussions with lawyers on how to navigate the state’s new law that banned abortions almost entirely unless it’s to save a mother’s life.
“Where is the line where we can intervene?” Green said. “If we intervene too early, then a lawyer might come after us.”
Women are also having trouble filling prescriptions for pills they’d normally take for a miscarriage as well as for other medications that carry the risk of ending a pregnancy. It’s even ensnaring women who aren’t pregnant.
Jacqueline McLatchy, an obstetrician and gynecologist in Georgia — which is expected to soon enact a ban of its own — often prescribes her patients misopristol, one of the two prescription drugs used for a medicinal abortions that also treats other conditions. McLatchy says it has gotten harder to prescribe since Roe was overturned, with local pharmacies turning away two of her patients who needed the medication.
One patient needed the pill after an incomplete miscarriage, and the other required it to expel tissue that was still in the uterus after a miscarriage.
Two different pharmacies told her patients they didn’t carry the medication, McLatchy said. But when she called to figure out why, the pharmacists told her a different story. Her understanding was that “until there is better clarification,” of the abortion rules, the pharmacists “do not want to cross any boundaries.”
One commonly prescribed drug that doctors say is becoming harder to get for patients is methotrexate. It treats chronic diseases like rheumatoid arthritis but it raises the risk of birth defects and pregnancy loss. In doses that are higher than those used for chronic diseases, it can be used to treat ectopic pregnancies.
Jennifer Crow, who lives in Tellico Plains, Tennessee, began taking methotrexate in the spring for inflammatory arthritis and a neuromuscular disease called myasthenia gravis. She got an automated call from her CVS pharmacy in early July saying that her refill for methotrexate was pending a response from her prescriber. Eventually, her doctor resolved the issue but the delay in taking the drug led to her joint pain coming back, making it painful to even get dressed in the morning.
“This is an unnecessary nightmare for so many people,” she said. Even more frustrating for Crow was that she had a hysterectomy before she began taking the drug, so there was no chance of her getting pregnant in the first place.
A CVS spokesperson did not comment specifically on Crow's case, but said “before filling a prescription for methotrexate or misoprostol in certain states, we instruct our pharmacists to validate that the intended indication is not to terminate a pregnancy. We encourage providers to include their diagnosis on the prescriptions they write to help ensure patients have quick and easy access to medications.” It was unclear whether this was a new policy for the post-Roe world.
Walgreens said it was amending its policies in the wake of the Supreme Court decision. “We're prepared to adhere to new federal and state laws and regulations, and will update any protocols as a result of the Supreme Court decision,” a spokesperson said. “Our pharmacy team members work with prescribers to ensure that any prescription medications, including pregnancy-ending medications, are dispensed in compliance with applicable laws.”
Rosalind Ramsey-Goldman, the Gallagher Research Professor of Rheumatology at Northwestern University Feinberg School of Medicine, is concerned that denying patients access to methotrexate will reverse decades of medical progress. In the 1980s, patients with rheumatoid arthritis developed significant deformities when methotrexate wasn’t used in treatment early on.
“This is what the rheumatologists are distraught about, especially those of us that been around for a while,” she said. “To go back to what was happening in the ‘80s and before, that is just unbearable.”
