The Supreme Court’s decision to overturn Roe v. Wade changes nearly everything for physicians who provide abortion care, especially for those in states that have banned the procedure.
Reproductive health providers in abortion-ban states may face criminal charges if they perform an abortion — even when the pregnant patient’s life and health are at risk. They also could face charges if they provide patients with information about where to access an abortion if some states’ efforts to curtail free speech on the topic are successful.
These laws already are having a chilling effect. For example, Jane’s Due Process in Texas, an organization that provides information and resources to people seeking abortion and reproductive healthcare, added this disclaimer and warning on its website: “Jane’s Due Process is pausing all services and support related to abortion care because of the uncertainty of the current state of the laws in Texas based on the recent U.S. Supreme Court decision in Jackson Women’s Health Organization v. Dobbs. We deeply hope this uncertainty is resolved quickly so we can resume helping young people in Texas.”1
The website also has a safety alert that reads, “Computer use can be monitored and is impossible to completely clear. If you need to exit this website in a hurry, hit the ESCAPE key twice.”
This is just the start of the chilling effect from state abortion bans and their criminal and civil penalties. “In states that impose restrictions, I think many providers are going to be risk-averse because even if local prosecutors won’t prosecute — and that may be true in many areas — there may be a state attorney general who would,” says Richard Friedman, JD, DPhil, professor of law at the University of Michigan. “You have to be careful about who’s in those offices now and who may be in those offices before the statute of limitation expires. Those are concerns for providers in states that impose restrictions.”
Michigan is an example of this legal conundrum. The state’s code does not include contemporary laws about abortion. With the overturn of Roe, the only abortion law still on the books dates back to 1931. It bans all abortions, making them a felony, except to protect the life of the pregnant person. It also criminalizes selling or advertising medications that could induce an abortion.2
“Before the Supreme Court ruled on Roe, two lawsuits were filed. There’s an injunction in place that keeps that [1931] law from being enforced,” says Leah Litman, JD, an assistant professor of law at the University of Michigan. “In states like Michigan, there are challenges to pre-Roe abortion bans or trigger laws, based on the state’s constitution.”
Even with an injunction, there is a threat to providers, since one or two prosecutors said they would pursue charges under the 1931 law, despite the injunction. “That strikes me as remarkable and lawless,” Friedman says.
Michigan voters could end the legal limbo in November by adopting a state constitutional amendment that would make abortion care legal in the state. “My guess is the state supreme court will say the old law violates the state constitution,” Friedman notes. “But whether they do or not, the petition to put a state constitutional amendment on the ballot got almost 800,000 signatures when only 425,000 signatures are necessary.”
The petition drive’s success shows how popular a state amendment to legalize abortion would be. If the petition contains enough valid voter signatures, it will go on the ballot, and a simple majority vote in Michigan’s November election would make it law.
“That was a major project, getting all the signatures, and the Dobbs decision spurred the activity,” Friedman says. “As long as Roe v. Wade and Casey appeared to be the law, people didn’t have sufficient motivation to pass a constitutional amendment. But as soon as those were overruled, the energy increased enormously.”
The wording of state abortion bans could lead to OB/GYNs and emergency providers holding off on treatment for patients experiencing miscarriages, says Stacey B. Lee, JD, associate professor of practice at Johns Hopkins Carey Business School.
“Given that for a miscarriage you get a D&C [dilation and curettage], and for an abortion you get a D&C, as a medical provider, would I want to have the headache of someone going through medical records to figure out if it was a miscarriage or abortion?” Lee asks.
On July 11, the Biden administration issued an executive order to clarify guidance on the Emergency Medical Treatment and Labor Act (EMTALA). The guidance reaffirms that EMTALA protects providers when they are offering legally mandated, life- or health-saving abortion services in emergency situations.3
Secretary of Health and Human Services Xavier Becerra also sent a letter to healthcare providers, informing them that EMTALA protects their clinical judgment and the actions they take to provide stabilizing medical treatment to pregnant patients, regardless of state restrictions.4
“Stabilizing treatment could include medical and/or surgical interventions (e.g., abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy, etc.), irrespective of any state laws or mandates that apply to specific procedures,” Becerra wrote. “Thus, if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. And when a state law prohibits abortion and does not 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 pre-empted.”
Hospitals with a complaint about a potential EMTALA violation could lose their Medicare provider agreement and/or receive civil monetary penalties. These penalties also can be imposed against individual physicians.4
This interpretation of EMTALA is already being challenged with a lawsuit filed by Texas Attorney General Ken Paxton. His lawsuit says the Biden administration’s guidance violates the state’s sovereign interest in the power to create and enforce a legal code.5 That legal challenge, and other states’ laws that do not allow any exceptions to the abortion bans except for emergency life-saving care, may not give physicians enough reassurance about their ability to make medical decisions without being investigated by local law enforcement.
“The Biden administration is putting protection out there, but at the end of the day, it’s the provider’s call and how risk-averse I am,” Lee says. “I have to make a judgment call, and if I’m in Texas, I’m going to think really carefully about what I do.”
Given the uncertainty and the onerous criminal and civil repercussions, physicians are in a bind: Do they have faith the federal statute will protect them from overzealous local prosecutors?
“I can’t say this provides the type of protection or peace of mind that weighs heavily in a [pregnant] person’s favor,” Lee notes. “Think of defensive medicine, where it’s easier to order extra tests to prevent or avoid possible litigation, regardless of the cost that might entail. In this case, I believe there will be some providers who will not provide care because of possible criminal ramifications that could follow.”
There already was an example of that phenomenon in Texas, according to report. At nine weeks of pregnancy, a woman discovered that she had suffered a miscarriage and her fetus did not have a heartbeat. The woman asked her doctor for a D&C to remove the fetus. However, the doctor refused, saying the woman should try to miscarry at home. Eventually, she found an abortion care provider in Houston who performed the D&C, but only after she underwent additional ultrasounds.6
“There is no debate that once a miscarriage has occurred, there is no life to protect,” Lee notes. “A D&C is the appropriate medical care for the health of your patient. Now, you have physicians reluctant to provide that service, and women are going through unnecessary pain and suffering.”
Everyone wants to know the scope of states’ life, health, and safety exceptions to anti-abortion laws. “Under what circumstances are they able to provide an abortion?” Litman asks. “What is their liability out of state if they provide services to an individual from another state?”
There are no easy solutions or answers. States that allow private citizens to file lawsuits could see cases where out-of-state doctors are sued. There is little advice attorneys can give doctors as the new Dobbs decision era begins.
“The uncertainty itself is a kind of restriction that is quite devastating,” Litman says. “It’s very scary for doctors to be put between criminal prosecution and violating their ethical code and medical obligation.”
For now, specific legal advice is limited. Some state governments are attempting to help with laws or declarations that they will not cooperate if another state investigates or attempts to extradite their physicians. “The governor of Michigan has already said Michigan won’t participate in extradition or cooperate with investigations of abortion providers,” Litman says.
Adds Lee, “I don’t see clarity on the horizon, and I think it places OBs in a very difficult position. The easiest decision is to not provide the service, which would be a shame and calls into question the moral and ethical implication of what type of care you’re providing for your patient.”
States with constitutional or legislative actions that legalize abortion care should consider expanding the number of clinicians who can perform abortions because they will be flooded with patients from other states.
Another potential limitation on states investigating providers who are out of state is Justice Brett Kavanaugh’s concurring opinion in Dobbs that says prohibiting people from traveling out of state to get an abortion would violate the constitutional right to travel.
“If he sticks with that, there wouldn’t be five votes to tempt a state from prohibiting an action by clinicians out of state,” Friedman says. “They might try to do something like saying this child was conceived in their state, so their state has an interest in regulating it. I don’t think it will fly.”
REFERENCES
- Jane’s Due Process. Accessing birth control in Texas for teens.
- Egan P, Boucher D. Michigan Court of Claims judge grants injunction against 1931 abortion law. Detroit Free Press. May 17, 2022.
- Department of Health and Human Services. Following President Biden’s executive order to protect access to reproductive health care, HHS announces guidance to clarify that emergency medical care includes abortion services. July 11, 2022.
- Becerra X. Emergency medical care letter to healthcare providers. July 11, 2022.
- Oxner R. Texas sues after Biden administration issues guidance saying doctors can perform abortions in emergencies. The Texas Tribune. July 14, 2022.
- Bella T. Woman says she carried dead fetus for 2 weeks after Texas abortion ban. The Washington Post. July 20, 2022.