Roe Reversal May Go Well Beyond Abortion

Tara Haelle

June 24, 2022

Kami, a mother of one daughter in central Texas, lost three pregnancies in 2008. The third one nearly killed her.

The embryo became implanted in one of the fallopian tubes connecting her ovaries to her uterus. Because fallopian tubes can't stretch to accommodate a fetus, patients must undergo surgery to remove the embryo before the tube ruptures. Failure to do so can result in internal bleeding and death.

But when Kami ― who did not want to use her last name to avoid harassment ― underwent an ultrasound to start the process of extracting the embryo, her doctor miscalculated how far along in the pregnancy she was and told her to come back in a few weeks.

She eventually did return, but only after passing out in the bathtub and waking up in a pool of her own blood. The tube had ruptured, and to remove it, emergency surgery was necessary.

Stories such as Kami's could become more common in the aftermath of the US Supreme Court's decision to overturn Roe v. Wade, the 1973 case that created a right to an abortion.

Experts fear that antiabortion laws that take effect in the United States following the court's decision will lead to a medical and legal limbo for thousands of people like Kami ― people with uncommon reproductive conditions whose treatments involve the termination of pregnancies or the destruction of embryos.

Vague Exceptions Prompt Concerns

According to the Guttmacher Institute, a nonprofit group for reproductive health, 13 states currently have "trigger laws" on the books that will make abortion illegal should Roe fall. Nine other states have laws that would outlaw or severely restrict abortion without a federal right to the procedure.

Each of these laws carves out exceptions that allow the termination of a pregnancy to prevent the death of the pregnant individual. But the language of the provisions is not always precise in describing what those exceptions mean in practice, according to Elizabeth Nash, the principal policy associate for state issues at the Guttmacher Institute.

There's so much misinformation about abortion that there are probably legislators out there who think that it's never needed to save a life. Elizabeth Nash

"These exceptions are designed to be extraordinarily narrow. These aren't really designed to be usable exceptions," Nash said. "There's so much misinformation about abortion that there are probably legislators out there who think that it's never needed to save a life."

Tubal Pregnancies

One of the best examples of a pregnancy termination that's necessary to avoid death is in the case of an ectopic pregnancy such as Kami experienced. Without treatment to end the pregnancy, the embryo will eventually grow so large that the tube ruptures, causing massive bleeding that can kill the mother.

Most state laws regarding abortion exclude treatment of ectopic pregnancy, according to Nash. But, "if the state does not exclude ectopic pregnancy from all the regulations, then people might not be able to get the care that they need when they need it," she said.

Dr Lisa Harris

The current abortion law in Texas, for example, prohibits ending a pregnancy after 6 weeks, or after cardiac activity becomes present. Cardiac activity can be present in cases of ectopic pregnancies, which account for between 1% and 2% of all pregnancies and are the leading cause of maternal deaths in the first trimester. And treatment definitely ends the life of the embryo or fetus in the fallopian tube, said Lisa Harris, MD, PhD, an ob-gyn and medical ethicist at the University of Michigan, Ann Arbor.

Harris said she has never doubted that an ectopic pregnancy cannot possibly result in a live birth. But she recalled an encounter with a medical student on a surgical team for an ectopic pregnancy who said, "So you're going to take it out of the tube and put it in the uterus, right?"

"It was a startling moment," Harris recalled. She regarded the procedure as a "lifesaving, obvious surgery," but the student ― whose suggestion was effectively a medical impossibility ― viewed it "as an abortion, as killing an embryo or fetus."

Harris said she isn't concerned that physicians would stop treating ectopic pregnancies in a post-Roe world. Rather, she worries about two other possibilities: an overzealous prosecutor might not believe it was an ectopic pregnancy and press charges; or laws will cause physicians to second guess their clinical decisions for patients.

"What it means, in the middle of the night, when someone comes in with a 10-week ectopic pregnancy with a heartbeat, is the doctor may hesitate," Harris said. Despite knowing the appropriate treatment, the doctor may want to speak with a lawyer or ethicist first to ensure they are covered legally. "And as that process unfolds, which could take hours or days, the person might have a complication," she said.

Not treating an ectopic pregnancy would be malpractice, but "some doctors may not provide the standard of care that they would have ordinarily provided because they don't want to risk breaking the law," she said.

Even more ambiguous are cornual ectopic pregnancies, in which the implantation occurs at the junction of a fallopian tube and the uterus. These pregnancies, which make up 2% to 4% of all tubal pregnancies, are immediately adjacent to the uterus. If an abortion is defined as the termination of an embryo or fetus in the womb, how such a legal definition would apply to these pregnancies is unclear.

This is not about logic or clinical meaning. This is people outside of medicine making determinations that all pregnancies must continue... Dr Lisa Harris

An ob-gyn wouldn't regard ending an ectopic pregnancy as an abortion, but "this is not about logic or clinical meaning," Harris said. "This is people outside of medicine making determinations that all pregnancies must continue, and when you think of a ban that way, you could see why a doctor would be frightened to end a pregnancy, whether it might be viable in the future or not."

That's true even if the pregnancy is located fully in the uterus. Harris described a pregnant patient she saw who had traveled from Texas to Michigan with a fetus that had a lethal defect.

The fetus had "an anomaly where the lungs couldn't develop, where there were no kidneys. There was no chance this baby could be born and live. Her doctors were very clear that there will never be a baby that [she could] take home at the end of this pregnancy, yet they would not end her pregnancy because that would be an abortion," Harris said.

Texas law "doesn't make any allowances for whether a pregnancy will ever actually result in a baby or not," Harris said. "The law, in effect, just says all pregnancies must continue."

Selective Reduction

How abortion laws in different states might affect selective reduction, which is used in some pregnancies to reduce the total number of fetuses a person is carrying, is even more ambiguous. The goal of selective reduction is to decrease health risks to the pregnant individual and increase the likelihood of survival for the remaining fetuses. Current Texas law prohibits these procedures.

Someone pregnant with quintuplets, for example, might seek selection reduction to reduce the pregnancy outcome to triplets or twins. A related procedure, selective termination, is used to terminate the life of a fetus with abnormalities while the pregnancy of the fetus' in utero siblings continues.

The advent of assisted reproduction methods, such as in vitro fertilization (IVF), greatly increased the incidence of higher-order multiples, those with three or more fetuses. The first IVF baby was born in 1978. By 1998, the rate of higher-order multiple births was 1.9 per 1000 births ― five times the figure in 1980. The rate has since decreased by nearly half, to 1 per 1000 births, but with 3.75 million live births a year, that's still a lot of pregnancies with higher-order multiples.

The American College of Obstetricians and Gynecologists does not provide explicit guidance on when selective reduction is warranted, but its committee opinion on multifetal pregnancy reduction provides an ethical framework for providers to use when counseling people with pregnancies of three or more fetuses. How would various state laws that outlaw abortion affect these decisions? No one knows.

"Selective reduction ends the life of a fetus or embryo, but it doesn't end the pregnancy," Harris said. "So, if the pregnancy continues but it kills an embryo or fetus, is that an abortion?"

"The Question of the Hour"

Harris and other doctors are haunted by potential medical cases in which continuing a pregnancy may result in the death of the person carrying the fetus but in which such death may not be so imminent that the law would allow immediate termination of the pregnancy.

Dr Michael Northrup

Michael Northrup, MD, an intensive care pediatrician in Winston-Salem, North Carolina, recalled a particularly harrowing case that illustrates the peril in deciding when someone's life is "enough" in danger to qualify as an exception to abortion bans.

The 14-year-old girl had severe lupus and kidney failure that required treatment with methotrexate and immediate dialysis to replace her electrolytes. A standard pretreatment pregnancy test revealed that she had been carrying a child for at least 10 weeks. Her pregnancy presented two problems. Methotrexate is so severely toxic that it's sometimes used to end pregnancies. Even at low doses, fetuses that survive usually have severe deformities. In addition, dialysis requires administration of a blood thinner. If the teen miscarried while taking a blood thinner during dialysis, she risked bleeding to death.

Treatment could be delayed until week 24 of pregnancy, at which time delivery could be attempted, but the patient likely wouldn't have any kidney function left by then. In addition, at 24 weeks, it was unlikely that the baby would survive anyway.

Northrup said that had she chosen that route, "I'm not sure she would have made it. This was a religious family, people who very much were believers. They had their head of church come in, who fairly quickly determined that the best thing for her health was to terminate this pregnancy immediately and get the treatment she needed for her body."

Would such a situation qualify for an emergency termination? The girl wasn't going to die within 24 or 48 hours, but it may not have been possible to pinpoint the time of death within a day or two.

"The family was sad, but they made that choice, and I wonder, would we have to justify that with these new laws?" Northrup says. "You definitely worry, being in the hot seat, 'Does this count enough? Is she close enough to death?' "

The same question comes up when someone's water breaks early in the second trimester. Since a live-birth delivery would be highly unlikely, given the age of the fetus, the standard of care is to offer to terminate the pregnancy to avoid a serious infection, Harris said. But if the infection hasn't yet developed ― even if it's likely to develop soon ― doctors in a state that outlaws abortion would not be able to offer termination. But as providers wait for an infection to develop, the person's risk of dying from infection rapidly increases.

"How likely does someone need to be to die for it to count to get a life-preserving abortion?" Harris asked. "That, I think, is the question of the hour."

Different institutions may decide to determine their own risk thresholds. One hospital, for example, may decide that any health threat that is associated with a 10% risk of death qualifies for a lifesaving abortion. But for many people, a 1 in 10 chance of dying is quite high.

"Who gets to decide what's meaningful?" Harris asked, especially if the patient is already a parent of living children and doesn't want to take any risk at all of orphaning them for a pregnancy with severe complications.

"The point is that this is way more complicated than anybody really knows, way more complicated than any legislator or justice could possibly know, and it creates all kinds of complicated ambiguities, some of which could result in harm to women," she said. "I've been a doctor almost 30 years, and every week, sometimes every day, I'm humbled by how complicated pregnancy is and how complicated people's bodies and life situations are."

That's what makes it so dangerous for policymakers to "insert themselves into medical practice," Nash said. She worries about the legal ramifications of overturning Roe, such as prosecution of people who illegally undergo an abortion or of physicians who perform a procedure that a judge deems to be in violation of abortion law.

"There are already local prosecutors who have misused the law to go after people who have managed their own abortions," Nash said. "Criminal abortion law, fetal homicide, child neglect, practicing medicine without a license ― these are things people have actually been arrested and convicted under."

Some laws may target the person seeking an abortion, whereas others may target clinicians providing abortions, or even people who simply help someone obtain an abortion, as the Texas law does. In Harris's own state of Michigan, a group of Republican lawmakers recently introduced a bill that would imprison abortion providers for up to 10 years and anyone creating or distributing abortion medication for up to 20 years.

Michigan Gov. Gretchen Whitmer, a Democrat who called the proposed legislation "disturbing" and "infuriating," would almost certainly veto the bill, but it's just one of dozens already filed or that are expected to be filed across the US.

The antiabortion organization National Right to Life has published a "post-Roe model abortion law" for states to adopt. The model includes an exemption for abortions that, "based on reasonable medical judgment, [were] necessary to prevent the death of the pregnant woman" ― but, again, it does not clarify what that means in practice

Lectures From Strangers

Four years after nearly dying, Kami gave birth to a healthy girl following an uncomplicated pregnancy. But her journey to having more children presented more challenges.

Two years after the birth of her child, she had another ectopic pregnancy. Her doctor sent her prescriptions for medication that would end this pregnancy, but a pharmacist refused to fill the prescription.

"Do you know these are very serious medications?" the pharmacist asked her. She did — she had taken them once before for another ectopic pregnancy. She was with her daughter, feeling devastated about losing yet another desired pregnancy. She simply wanted to get the medication and go home.

"'So you're trying to have a cheap abortion,' he said, and 30 heads turned and looked at me. The whole pharmacy heard," Kami said.

She told the pharmacist that she'd miscarried. She said he responded with, "So you have a dead baby in your body."

Even after her doctor called to insist on filling the order, the man refused to fill it.

Kami left without the prescription, and her doctor performed a surgical dilation and curettage to remove the embryo from her fallopian tube for no fee.

Kami later tried again to have more children. She experienced another ruptured tube that she said nearly killed her.

"There was such a sense of pain knowing that I couldn't have any more kids, but also the relief of knowing that I don't have to go through this again," Kami said. Now, however, with the Supreme Court having overturned Roe v. Wade, she has a new worry: "That my daughter will not have the same rights and access to healthcare that I did."

Tara Haelle is a Dallas-based science journalist who specializes in medical research, women's health, infectious disease, and pediatrics. Follow her @tarahaelle.

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