Louisiana is fighting to become a leader in the race to criminalize doctors who allegedly provide abortions, since the US supreme court ended federal abortion protections.
In doing so, the state may also become an example of how abortion bans could worsen maternal health in America, as criminal penalties across the US redefine where and how doctors are willing to practice.
In turn, that is likely to worsen a leading reason some states are more dangerous places to give birth – lack of hospitals, birthing centers and obstetricians.
“It should be no surprise that in a lot of the states where there’s a [trigger ban], there’s a strong correlation [with maternity care deserts],” said Stacey Stewart, president and chief executive of the March of Dimes, an organization that advocates for maternal and infant health and is strictly neutral on abortion.
Many of the same states hostile to abortion have also pursued intersecting policies that can worsen health overall for residents, such as refusal to expand a public health health insurance program for the poor, called Medicaid.
Now, the severe criminal penalties and extraordinary civil liability doctors are exposed to under such anti-abortion statutes could become fundamental to how and where healthcare providers decide to practice.
“There’s been an unprecedented encroachment of the legal world into these medical decisions,” said Dr Rebekah Gee, an obstetrician and gynecologist in New Orleans, chief executive of the family medicine practice Nest Health, and former secretary for the Louisiana department of health. Louisiana’s trigger law allows for fines of up to $250,000 and 15 years in prison for wrongly inducing an abortion. “These are penalties people have for rape and armed robbery,” said Gee.
About half of US states are expected to try to ban abortion from conception or very early in pregnancy, the result of a cataclysmic supreme court decision that ended nearly 50 years of federal protection for abortion rights.
“Forget the fines – people are afraid to go to prison,” said Lisa M Wayne, executive director of the National Association of Criminal Defense Lawyers (NACDL). NACDL has fielded calls from reproductive rights groups, medical associations and even other attorneys in recent days, trying to sort out the kind of legal exposure they may face state-to-state.
“Nobody wants to sign up thinking their freedom or liberty is going to be interfered with,” said Wayne.
Louisiana provides an especially salient example of how the geography of medicine could be affected. If the trigger bans in Louisiana and neighboring states go into effect, as expected, the nearest state without an abortion ban would be hundreds of miles away in Illinois.
Louisiana’s would also be especially punitive, allowing prosecutors to seek lengthy prison sentences and felony charges. The state law also provides no exemption for victims of rape or incest.
Abortion bans will probably cause “even greater workforce challenges in certain areas, particularly if obstetrician-gynecologists are unable to live and work in states with restrictive abortion laws”, said Dr Jen Villavicencio, lead for equity transformation at the American College of Obstetricians and Gynecologists.
For now, the state’s trigger law has been blocked by a state court, but state officials such as the Republican attorney general, Jeff Landry, have argued in favor of the ban. Nevertheless, the court case to stop the law has created a record of how doctors say a climate of fear and confusion has settled on the state and is certain to affect care.
“Frankly, I am worried I could go to prison just for handling a miscarriage as I always have,” said Dr Nina Breakstone, an emergency doctor in Terrytown, Louisiana, in an affidavit in opposition to the state’s trigger ban.
In another affidavit, an emergency medicine doctor said colleagues were scared of reporting miscarriages on patients’ charts because, medically, a miscarriage is described as a “spontaneous abortion”.
“Providers like myself are left with absolutely no direction on how to resume their practice or what, if any of their actions may subject them to prison time and enormous fines,” said Dr Rebecca Perret, an ob-gyn in Orleans parish, in another affidavit.
By the admission of the state’s own health department, Louisiana has among the worst maternal mortality rates in the nation, in which Black patients are four times more likely to die than their white counterparts. The state also struggles to attract doctors to care for pregnant patients. About one-third of counties, called parishes, lack an obstetrician, according to court documents.
In 2019, for every 100,000 births, 33 women died. That is well above the US national average of 20 deaths for every 100,000 live births. Louisiana’s rate is more than five times the rate of maternal mortality in the United Kingdom, and according to another report in the American Journal of Obstetrics and Gynecology, on par with those of Kyrgyzstan.
“Where you live matters,” Dr Juanita Chinn, a demographer and expert in population health at the National Institute of Child and Human Health Development, told the Guardian. “A geographic barrier in the ability to access care will likely only heighten the risk of experiencing a severe maternal morbidity event or a maternal mortality.”
Many parishes are “maternity care deserts”, or places where there is no hospital, birthing center or obstetrician, according to a 2020 report from the March of Dimes. That lack of doctors has already become a driving factor in the risks pregnant patients face in Louisiana, research shows.
In court documents, doctors said Louisiana’s decision to attempt to enact severe penalties for alleged abortions has already dissuaded some from practicing in the state, has hospital administrators worried about staffing shortages and medical school professors concerned about the future workforce.
Other doctors said in affidavits that such a climate is likely to have enormous knock-on effects for patients in Louisiana, as medical residents choose other states in which to practice and doctors look elsewhere for work.
“I am concerned maternal mortality rates will only get worse if the trigger ban [goes] into effect,” said Dr Jennifer Avegno, an emergency medicine doctor and director of the New Orleans health department, in a court document. In part, she said, maternal mortality would get worse because patients, especially in rural area, would need to travel further for care.
“One of the main reasons women are more likely to die in Louisiana is because they are forced to travel long distances for care in many areas of the state due to lack of healthcare providers,” said Avegno.
Dr Clarissa Jo Beutler, a family medicine doctor, wrote to the court that she worried about ripple effects on general medicine, as doctors often prescribe medications that can cause a miscarriage or pregnancy complications for depression, migraines and autoimmune disorders.
Dr Valerie Williams, an ob-gyn in Orleans parish and an assistant professor at Louisiana State University Healthcare Network, said in an affidavit she worried the trigger bans would impact the “number and quality” of obstetric residents who choose to train in the state, thereby impacting the state’s future workforce. Already, the ban has dissuaded one provider from coming to Louisiana.
“When helping find a replacement for my former position, an amazing candidate applied who was very motivated to practice in Louisiana,” said Williams. “Once she heard Louisiana has trigger bans with severe penalties for physicians, however, she backed out.”
