Post-Roe, doctors worry about what constitutes lifesaving care

Physicians worry state laws do not provide a common definition of procedures that fall under the umbrella of life-saving care

Rep. Michael C. Burgess, R-Texas, an OB-GYN, said he has never seen confusion over what is considered life-saving in the field. (Tom Williams/CQ Roll Call file photo)
Rep. Michael C. Burgess, R-Texas, an OB-GYN, said he has never seen confusion over what is considered life-saving in the field. (Tom Williams/CQ Roll Call file photo)
Posted July 20, 2022 at 12:35pm

Health care providers say the decision to overturn Roe v. Wade has led to increased confusion over what sort of emergency and life-giving care they can provide to patients facing a pregnancy-related health crisis. 

They say the rapid shift in state abortion laws, combined with how those laws are being enforced has led many to wonder what types of procedures and medications they can provide in the aftermath of the June 24 Dobbs v. Jackson Women's Health Organization decision, which overturned the nearly 50-year-old legal precedent establishing a legal right to an abortion. 

State laws, they say, are often vague and do not provide a common definition of what procedures and medications fall under the umbrella of life-saving care when it relates to reproductive health. State laws are often vague and may not clarify if, for example, they would apply to an abortion for mental health reasons or for pregnancy complications in earlier its stages.

Testifying at a House Energy and Commerce Subcommittee on Oversight and Investigations hearing Tuesday, Leah M. Litman, assistant professor of law at University of Michigan Law School, testified that “broadly worded laws might potentially prohibit" practices once considered life-saving care.

Litman pointed to the Texas Medical Association, which recently issued a complaint to the Texas Medical Board that the implementation of the state’s abortion bans have delayed miscarriage care and other emergency procedures.

The subcommittee hearing, the last of five congressional hearings since last week examining the impact of the Supreme Court decision overturning Roe v. Wade in June, saw both parties at odds over the interpretation of these state laws and what was permitted under those laws, despite both sides agreeing that treatment for caring for an ectopic pregnancy or miscarriage was necessary.

“All of us who are physicians would be committing medical malpractice if we didn't intervene to save a woman's life and again, that's what I have done every day for my 14-year career and I don't see how that would need to change," said Christina Francis, CEO-Elect of the American Association of Pro-life Obstetricians and Gynecologists. "I will still be able to intervene to save the life of my patients.”

Nisha Verma, a fellow with Physicians for Reproductive Health, disagreed.

“I think that these restrictions are going to affect people seeking abortion care for all reasons, including life-saving abortion care and medical emergencies," she said.

Verma, an obstetrician-gynecologist in Georgia, said she has treated patients with pulmonary hypertension, which can increase the risk of death during pregnancy to 50 percent.

“But under these laws, if that person comes to me at six or seven weeks before they've got that chance to get treated, can I do their abortion or do I have to wait until they get sick?” she said. "That idea of having to wait for someone to get sick is just counterintuitive to what we are trained to do as physicians.”

Rep. Michael C. Burgess, R-Texas, said he has never seen confusion over what is considered life-saving in the field.

“I consider myself a pro-life OB-GYN in practice for 25 years. Never once did I hesitate to take care of a patient who had suffered a spontaneous incomplete miscarriage,” said Burgess, who said he has been or is still a member of American Association of Pro-life Obstetricians and Gynecologists, the American College of Obstetricians and Gynecologists and the American Medical Association.

But the AMA said it is fielding a wide range of questions about patient health and potential prosecution from members since the Dobbs decision.

“Physicians are struggling everyday, and these are not rare examples,” said Jack Resneck Jr., AMA’s president. “Physicians have been placed in an impossible situation — trying to meet their ethical duties to place patient health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of patients.”

Pharmacies

The confusion is not limited to physicians, he said. Both patients and pharmacists are unclear on what medications can be dispensed and taken because of these bans and some pharmacists have cited their state’s abortion bans as a reason to not dispense certain drugs that can function as an abortifacient. 

Resneck pointed to challenges with methotrexate, a common and effective oncology and rheumatology drug that he said can also be used to treat an ectopic pregnancy. Because of this and changing laws, some pharmacies refuse to dispense the drug and some physicians refuse to prescribe it.

“Physicians are concerned that their clinical judgment will be second-guessed by other hospital staff or prosecutors. The AMA expects that many of these situations unfortunately will end up being litigated, so there will not be clear answers for some time,” said Resneck.

The administration issued guidance last week clarifying that pharmacists cannot deny prescriptions because of their views on abortion or contraception.

Rep. Earl L. "Buddy" Carter, R-Ga., who spoke out against the guidance during House floor debate last week about abortion legislation, sent a letter to the administration on Tuesday, criticizing the guidance.

Carter, one of two pharmacists in Congress, said the guidance could violate state laws and conflict with a pharmacist’s conscience and moral beliefs.

Rep. Diana Harshbarger, R-Tenn., echoed the concern.

“As a licensed pharmacist for more than 30 years, I am outraged by HHS’s effort to use health care professionals as agents of the Biden Administration’s anti-life agenda,” she said in a statement. 

But Democrats argued that the new legal environment put doctors and patients in peril. 

“The ramifications for patient care and the trust relationship between the patient and her doctor are not limited to abortion care alone, putting providers and patients at risk,” said California Democratic Rep. Raul Ruiz, a physician, who worries the state bans will interfere with a provider’s medical ethics.