Editor’s note: The names of the doctors in this story have been changed at their request for fear of legal repercussions and/or professional reprisals.
July 26, 2022 – When an OB/GYN in Ohio had a patient needing an abortion this month, he knew he had to act fast.
Daniel, who also sees patients at an abortion clinic, was treating a woman who came in for an abortion about 5 weeks into her pregnancy. And after going through the mandatory waiting periods, ultrasounds required at every appointment, the consent process and advice on options, she was set for a surgical abortion the following Monday.
But on Monday, pre-surgery tests showed his blood pressure was very high, posing a serious health risk if Daniel had the operation.
Before the Supreme Court overturned Roe v. Wade in June, Daniel reportedly sent the patient home with instructions on how to lower her blood pressure over time. But the patient had only four days left to show the necessary improvement.
In this case, everything worked. The patient returned on Thursday and was able to undergo the procedure. But that’s just one of many daily medical decisions abortion providers must now make, with evolving legal risks being as important to doctors as the safety of their patients.
Daniel said he doesn’t want Ohio’s abortion law to change the way he communicates with his patients. As far as he knows, it’s still legal to talk to patients about self-managed abortions, as long as everything is unbiased and clearly stated, he says.
“But I don’t think I would get a lot of institutional support to have these conversations with patients because of the perceived legal liability,” Daniel says. “I will always have these conversations, but I’m not going to tell my employer that I have them and I’m not going to document them in the chart.”
Daniel is aware that having these kinds of discussions, or considering the possibility of omitting certain information from patient records, is subject to legal and professional consequences. The application of these rules is also unclear.
Under Ohio law, if a co-worker suspects you of breaking a law, you may be reported to a supervisor or regulatory agency. , have secretly recorded conversations in the past, Daniel says.
Application: past, present and future legal risks
Before Roe, enforcement of illegal abortion was patchy, says Mary Ziegler, JD, a professor at Florida State University College of Law who specializes in the legal history of reproductive rights. In the early to late 19th century, doctors who performed illegal abortions were, in most cases, prosecuted if a patient died as a result of the procedure.
An Ashland, Pennsylvania doctor named Robert Spencer was known to perform abortions in the small mining town where he practiced in the 1920s. He was reportedly arrested three times – once after a patient died at the following complications from an abortion – but was eventually acquitted.
For many doctors performing abortions at the time, “it was really kind of a roll of the dice,” Ziegler says. “There was a feeling that these laws weren’t being enforced very much.”
Carole Joffe, PhD, sociologist expert in reproductive health, recalls that very few doctors have been arrested, given the number of abortions performed. The American College of Obstetricians and Gynecologists estimates that, in the years leading up to the original Roe decision, about 1.2 million women in the United States had illegal abortions — a number that exceeds current estimates.
Among the most notable cases of doctor’s detention was the arrest of gynecologist Jane Hodgson in 1970. Hodgson intentionally violated Minnesota law, which prohibited all abortions except in life-threatening cases. .
After performing an abortion on a patient who had contracted rubella, also known as German measles, Hodgson was arrested, sentenced to 30 days in jail, and placed on probation for a year. She ultimately served no time in prison, and her conviction was overturned after the Roe decision in 1973.
Today, abortion restrictions enacted in many states have authorized far more sweeping penalties than existed in pre-Roe times. According to Joffe, there is a key reason why we can anticipate more doctor arrests now.
“There just wasn’t the modern anti-abortion movement that we know of,” she says. “In the past, there wasn’t much legal oversight and things were very dangerous. Fast forward to now, we now have much safer options – like mediation abortion pills – but we have a very different legal environment.
Carmel Shachar, JD, an expert in health law and policy at Harvard Law School, also expects we will see more frequent lawsuits against doctors who perform abortions.
“There is so much more data available through medical record keeping and information generated by our phones and internet searches, that it would be much harder for a doctor to fly under the radar,” says Shachar.
Additionally, Shachar emphasizes prosecutorial discretion in abortion cases, where a prosecutor can choose to enforce a law much more aggressively than another prosecutor in the neighboring county. This has been seen in DeKalb County, Georgia, which includes parts of Atlanta, where District Attorney Sherry Boston said she plans to use her prosecutorial discretion to deal with crimes like the rape and murder, rather than “potentially investigating”.[ing] women and doctors for medical decisions”, Bloomberg Law reported. State Senator Jen Jordan, the Democratic candidate for Georgia attorney general, also said that if elected, she would not enforce the new 6-week abortion ban.
Is there a legal pathway for abortion care in states that prohibit it?
Robin, an OB/GYN, became a complex family planning fellow in Utah to further his medical training and abortion education. Her plan was to solidify this as an area of expertise, so that when her fellowship ended, she could return to her home state of Arizona to provide services there.
In Utah, where she currently practices, abortion is prohibited after 18 weeks. In Arizona, abortion is still allowed until 24-26 weeks, until a pregnancy reaches “viability” (when a fetus is developed enough to be able to survive outside the womb with assistance). medical). But new restrictions in Arizona could take effect as early as September, which would ban abortions after 15 weeks.
Despite the uncertain future of abortion access in Arizona, Robin still plans to move there after her scholarship, but she hopes to travel to surrounding states to help provide abortion care where it is less restricted. . Although she is unable to provide abortions at all, she says there are still ways to help patients get safe and honest abortions so they don’t repeat the dangerous and often horrific results of abortions. self-induced or those practiced by illegitimate practitioners before Roe.
“One of the roles I think I can play as a physician is to help people with comprehensive care for self-managed abortion,” says Robin. “If they can get the [abortion] pills online, so I can do the ultrasound before, I can do the ultrasound after, I can talk to them about it. I can help them with all aspects of this care, I just can’t give them the pills myself.
Whether a doctor can be penalized for “aiding and abetting” abortions that occur in different states remains an open question. In Texas, for example, Senate Bill 8 — which went into effect September 1, 2021 — not only established a fetal heart rate law, but added language that would allow private citizens to sue anyone. “knowingly engages in conduct that aids or abets the performance or incitement of abortion” or anyone who even intends to do so.
That’s what happened to Alan Braid, a San Antonio-based OB/GYN. He confessed in a Washington Post editorial that he performed an abortion after heart activity was detected during pregnancy. Aware of the legal risks, he has since been sued by three people, and those cases are still ongoing.
But Ziegler says the odds that a doctor from a progressive state will actually be extradited and prosecuted by a state with restrictive abortion laws are pretty low — not zero, but low.
Like Robin, Natalie — OB/GYN in her early 30s — is a complex family planning fellow in Massachusetts. After her scholarship, she wants to return to Texas, where she completed her residency training.
“I’m at the point in my training where everyone is starting to look for jobs and figure out what’s next,” says Natalie. “The Dobbs decision introduced a ton of chaos because of the vagueness of the laws and how they are enforced, and then there’s the chaos within the institutions themselves and what kind of risk tolerance they have. “
Regarding her future career path, Natalie says she would not consider a job in an institution that did not allow her to teach abortion care to students, speak publicly about abortion rights, or to let her travel outside of Texas to continue providing abortion care. . She also preemptively seeks legal advice and general advice — advice that Ziegler urges doctors to heed, as soon as possible.
In states that strictly ban abortion with exceptions for life-threatening cases, there is still a lack of clarity about what is actually considered dangerous enough to qualify as an exception.
“Is life in danger in the next 6 hours?” 24 hours? Seven days? A month?” Robin asks. “In medicine we don’t necessarily talk about whether something is life threatening or not, we just say there is a high risk of X thing happening in X period of time. . What is the threshold at which this meets the legal criteria? Nobody has an answer to that.”
Robin explains that, in his cancer patients, pregnancy would not “necessarily kill them within the next 9 months, but it could certainly accelerate their disease which could kill them within the next year or 2”.
At present, she says she doesn’t know what she would do if and when she was placed in this position as a doctor.
“I didn’t go to medical school and become a doctor to become a criminal,” says Robin. “Our goal is to make as many legal changes as possible to protect our patients, and then to practice as much harm reduction and as much care as possible within the letter of the law.”