Could an Abortion Ban Put Your Life in Danger?

August 17, 2022

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Within the weeks for the reason that Supreme Court overturned Roe v. Wade, alarming stories have emerged of pregnant people being denied needed medical care in a few of the 15 states that now ban all or most abortions. To call a number of: a lady in Wisconsin bled for 10 days on account of an incomplete miscarriage when emergency room staff refused to remove the fetal tissue; one Texas physician said they were told by hospital management to not treat ectopic pregnancies until they ruptured (a life-threatening event); and a Louisiana woman was forced to endure painful labor after her water broke at just 16 weeks, because doctors were told they may not do an abortion procedure.

“These laws are doing exactly what they were intended to do, which is to cause confusion and fear amongst clinicians, hospitals, and health systems,” said Dr. Biftu Mengesha, an OB-GYN and director of Innovating Education in Reproductive Health on the University of California, San Francisco. Along with the chilling effect abortion bans have on doctors and other medical providers, experts worry they may also make patients hesitate to hunt medical care when experiencing complications related to pregnancy or self-managed abortion.

Among the horrifying stories in recent news also appear to be a results of hospital legal departments interpreting abortion bans within the broadest possible way, attempting to avoid liability. “I feel the extremely detrimentally conservative advice that some lawyers are giving medical providers in states with abortion restrictions will end in death,” said Lauren Paulk, senior research counsel on the legal advocacy organization If/When/How.

However it doesn’t should be this manner. For one thing, there are federal laws that protect patient privacy and access to emergency medical care. Experts say that hospitals could possibly be doing a greater job of upholding them, and the federal government could do more to implement them. Here’s what it’s essential to know concerning the rights you need to have when you find yourself within the hospital with complications related to a pregnancy—and what still needs to vary as a way to keep you secure:

You will have a right to emergency medical care.

Within the last month, the Biden administration has taken some steps to remind hospitals of their responsibilities to pregnant patients under existing federal law. On July 8, President Biden issued an executive order directing federal agencies to take motion to guard reproductive health care. In response, the Department of Health and Human Services issued guidance clarifying a federal law called the Emergency Medical Treatment and Labor Act, or EMTALA. This law requires that hospitals provide stabilizing medical care to any patient who’s experiencing an emergency.

The document states: “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment needed to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and doesn’t include an exception for the life and health of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”

EMTALA’s definition of an emergency includes “serious impairment or dysfunction of bodily functions or any bodily organ,” which is more broad than the exceptions to many state abortion bans. But this can only empower doctors to do the suitable thing if the Biden administration follows up its statement with motion. “The federal government took the primary necessary step in issuing this guidance. The following necessary step is to implement the statute,” said Greer Donley, assistant professor of law and director of the joint degree program in law and bioethics on the University of Pittsburgh School of Law. “They should make the grievance process user-friendly and go after hospitals which are violating EMTALA.”

Though the federal government hasn’t taken motion against any individual hospitals, it has signaled a willingness to go after states that try to avoid federal law: On Aug. 2, the Department of Justice sued the state of Idaho, arguing that its abortion ban violates EMTALA. Nonetheless, the state of Texas has also sued HHS, claiming that EMTALA doesn’t cover abortion. There’ll likely be numerous legal back-and-forth here, and even with federal protections, doctors say they need more support from their employers. “For individual clinicians, the potential consequences are weighty. In the event you are found to have violated an abortion ban, you could possibly lose your license, face hundreds of dollars in fees, and even be jail time,” Mengesha said. “We’d like hospital leadership and system leadership to support clinicians who’re acting inside their rights and throughout the law.”

Dr. Tani Malhotra, a maternal-fetal medicine specialist in Cleveland who recently joined a bunch of over 1,000 Ohio physicians in speaking out against the state’s six-week abortion ban, agrees. “We’d like hospitals to say, ‘We are going to back you up.’ We’d like pro-choice legal counsel who understand the nuances of those situations. While they’re there to interpret these laws within the broadest sense and understand potential legal risks, they must also be there to assist physicians fulfill their obligations under the Hippocratic Oath,” she said. Small hospitals without large legal departments on call might have help determining what latest state laws mean for them, she added. President Biden’s executive order mentioned convening volunteer lawyers to assist protect patients, abortion providers, and hospitals, but it surely’s not clear yet what those services may appear like.

You will have a right to needed medications.

Even outside of hospitals, overly broad interpretations of abortion bans are affecting people’s access to health care. “We also see it trickling into pharmacies, because pharmacies are concerned that they will likely be criminalized for providing individuals with the medications they need,” Mengesha said. Following Roe’s reversal, many patients reported having trouble accessing methotrexate, a drug that may be used to terminate a pregnancy but can be used to assist control autoimmune conditions. Mengesha also worries about patients struggling to access misoprostol, which is certainly one of the drugs utilized in medication abortion and miscarriage management but in addition has many other uses: it causes the cervix to melt and open more easily, so it’s often prescribed before procedures that require instruments to be placed contained in the cervix, like IUD insertion and certain cancer screenings. Following the Supreme Court’s ruling, CVS—the country’s largest pharmacy chain—directed pharmacists in several states to confirm the explanation patients were being prescribed each of those medications before allotting them.

The Biden administration has taken some steps to deal with this problem, reminding pharmacies that refusing to dispense medications related to reproductive health could violate federal law. Under the Reasonably priced Care Act, pharmacies that accept federal dollars through programs like Medicaid and Medicare are prohibited from discriminating against patients on the premise of sex. That features “discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.” Again, how effective this guidance is will rely upon how aggressively it’s enforced. If a pharmacist is refusing to fill a prescription due to the likelihood that you could possibly be pregnant, remind them it’s a violation of your civil rights, and allow them to know you’ll be reporting it to HHS.

Health care employees shouldn’t report you to the police for self-managed abortion.

While only three states explicitly ban self-managed abortion, there are plenty of other laws—akin to fetal harm laws originally intended to guard pregnant people—which have been used to criminalize some for ending their very own pregnancies or helping another person achieve this. In line with If/When/How, there have been 61 such cases between 2000 and 2020. Shockingly, most of those people were reported to the police by health care employees. Probably the most recent example was the case of Lizelle Herrera, who was arrested for allegedly self-managing an abortion in Texas in April. (Charges against her were ultimately dropped.)

It’s a standard misconception amongst medical providers that they should report self-managed abortion due to mandatory reporting laws. Nonetheless, in response to Paulk, not only is that this unnecessary, normally it’s a violation of federal law. While mandatory reporting laws vary from state to state, “there is usually no reason for a health care provider to report someone for a self-managed abortion,” said Paulk. There are a number of narrow exceptions to this: for example, some states have injury reporting laws, so if someone were to resort to a less secure approach to self-managed abortion, a hospital could also be required to report a resulting injury to the police. “For instance, if someone were to introduce a pointy object into their uterus, a hospital can have to report that injury to law enforcement. Nonetheless, they’d only must report the injury itself, not the explanation behind it,” said Paulk.

The Biden administration agrees and is taking steps to teach medical professionals about what they need to and shouldn’t open up to police. HHS recently issued latest guidance clarifying the much-talked about federal privacy law HIPAA, or the Health Insurance Portability and Accountability Act, confirming that the law prohibits health care providers from reporting suspected self-managed abortions to the police unless state law explicitly requires it.

Many individuals who self-manage abortions now achieve this using pills, a highly secure and effective method that’s medically indistinguishable from a miscarriage when pills are taken orally. Nonetheless, some individuals who take abortion pills will need follow-up care, and fears around criminalization, particularly for people of color, are valid. In the event you find yourself in this example, do not forget that you should not have to open up to medical providers that you just took pills to finish your pregnancy.

“The treatment for complications from self-managed abortion isn’t any different than miscarriage management, so it shouldn’t be treated otherwise under the law. Nobody needs to reveal that their medical emergency was the the results of a self-managed abortion,” Donley said. Paulk added that providers in ban states may also help protect patients by being mindful of what information they put in medical charts.

It’s also necessary to take care along with your own digital security when looking for details about abortion. While HIPAA prevents health providers from disclosing information they obtain from you digitally, it doesn’t protect things like your search history or smartphone location data. You may learn more on this guide to abortion privacy from the Digital Defense Fund or this fact sheet from HHS.

Hospitals must expand abortion access.

Even before abortion was banned at six weeks in Ohio, hospitals within the state provided only a few. In line with Malhotra, they typically only did so when a case was so complicated that it will have been unsafe for the abortion to be done in an outpatient setting. That is common; nationwide, only 4 percent of abortions happen in hospitals. But now, as increasingly patients travel to access care, hospitals in states where abortion will remain legal must expand their abortion services, said Dr. Jody Steinauer, an OB-GYN, researcher, and director of the UCSF Bixby Center for Global Reproductive Health. There are numerous ways in which hospitals could make abortion more accessible in their very own communities, thereby taking a few of the burden off of overbooked clinics. For instance, Steinauer said some emergency departments are piloting programs where they provide medication abortion to patients who want it right within the emergency room, without having for a referral elsewhere.

Hospitals in ban states could also create referral networks to assist physicians connect their patients with trusted abortion providers, said Malhotra. “I used to know the clinics here in Cleveland, but I don’t have all the data for clinics out of state, and with all of the crisis pregnancy centers on the market, it’s numerous information even for me as a physician to sift through,” she said. “For patients, it could possibly be unimaginable.” (The federal government must also put protections in place for providers who refer patients out of state in order that they don’t fear being sued for “aiding and abetting” abortion, said Mengesha. President Biden recently issued one other executive order directing federal agencies to “study” how they will protect patients who must travel for abortions, but details were sparse.)

And though abortion isn’t banned in every state, restrictive laws are clearly already endangering people’s lives, and hospitals should be prepared to do all the pieces they will to avoid wasting their patients. One 2021 study estimated that if abortion were banned entirely in america, there can be a 21 percent increase in pregnancy-related deaths in subsequent years, with as much as a 33 percent increase in deaths amongst Black people, who have already got the very best rates of pregnancy-related death in america. “We anticipate a rise in obstetric patients who didn’t have access to prenatal care or who’re experiencing complications and folks who may need sought abortions because they’ve medical problems but weren’t capable of get one,” Steinauer said. “Hospitals must convene specialists in various areas of drugs that care for pregnant individuals with comorbidities to be certain everyone seems to be ready to reply to that.”

She added, “Clinicians must be proactively meeting with hospital leadership to be certain everyone seems to be prepared to do the suitable thing for patients. We’d like to take into consideration how hospitals generally is a safety net and supply the very best quality care.”

Garnet Henderson is a Wyoming-born, Latest York-based freelance journalist reporting on health and abortion access. Her work has appeared in publications including Marie Claire, VICE, WIRED, Glamour, Scientific American, Elemental, the Guardian, and others. She can be the host and producer of ACCESS: A Podcast About Abortion.