The repeal of abortion in the United States leaves doctors in legal limbo

On June 29, five days after the US Supreme Court struck down federal protection of abortion rights, Emily Diament, pregnant with her second daughter, was due for her 20th week checkup. Everything was going well in a pregnancy that she “couldn’t have wanted more.” She will always remember it: it was Wednesday, at 2pm, when the doctor told her and her husband that the fetus’s heart had stopped beating. “It was terrible. Ram [her husband] and I had to think: Where does the Supreme Court ruling leave us now?” “All of this was new,” adds the 33-year-old public relations practitioner in an email: “a panorama full of unknowns and fears.”

The gynecologist explained the alternatives. The first, “induction,” was the least safe. It essentially means giving birth to the stillborn baby. The second, more reliable and less onerous for her, was to undergo a D&E operation, an acronym for “dilation and evacuation.” “The process is also faster,” explains Diament. The couple opted for the latter.

The couple live in New Orleans, “the best city in the world,” as Diament likes to define it. The Supreme Court ruling, which overturned the half-century precedent set by the 1973 Roe v. Wade ruling, gave power to regulate women’s reproductive health back to the states. Diament’s legislators in Louisiana, anxiously awaited the moment of a “trigger law,” ready to take effect since 2006. Three days after the ruling, a judge blocked the activation of that rule, one of the most restrictive in the country. But that didn’t last long: on July 8 abortion was outlawed in Louisiana even for rape and incest. After several comings and goings in the courts, the ban holds up, pending new legal battles.

Among the restrictions contemplated by the law is the veto on D&E unless the mother’s life is in danger, or the baby has already died. Diament’s case fell into the permitted categories, but her ordeal compelled her to tell her story. “After going through that process and talking to several doctors about their concerns,” she explains, “I know this happened to me at this exact time for a reason.”

Bhavik Kumar is one of those nervous doctors, pushed into legal limbo by the new rules. He is a consultant in the largest provider of abortions in the United States, Planned Parenthood, in Houston, Texas, another of the epicenters of the restrictive tsunami that hits the United States. He explains that an “induction” can last “from one to 12 or 24 hours,” carries more risks (“the same as childbirth”) and leads to more hospital expenses, causing serious debt among less well-off patients. Some, however, prefer it, because “the baby comes out intact, and they can bond with it,” adds Kumar. With D&E, which uses forceps, mothers do not see the dead body.

Conversation between doctor and patient

And that is all that Kumar asks: that the matter be resolved in a conversation between doctor and patient, “without political interference.” “Since the law came into force [in Texas], the only cases in which we are allowed to intervene after six weeks is if the life of the person is in danger, or if there is no doubt that the pregnancy is not viable,” he warns.

Kumar, like many of his colleagues, has doubts around the idea of “life in danger.” “It’s not exactly a scientific concept,” he clarifies. “Every doctor, every ER, every clinic and every hospital may have their own theory of what that means. Now, instead of looking at the data and talking to patients to decide what’s best, doctors, hospitals and clinics have to consult with lawyers, ethics committees or administrators about what they can and can’t do. Meanwhile, they also remain in limbo.” The precautions seem justified: both Texas and Louisiana threaten prison sentences of between 10 and 15 years to those who perform abortions outside the supposedly permitted limits.

A gynecologist thus defined the new dilemmas of her practice during an interview with EL PAÍS held at a reproductive health center in Des Moines (Iowa): “It’s terrible,” lamented the doctor, who asked to speak anonymously. “They make us choose between the Hippocratic Oath [the famous “do no harm”] and the penal code.”

This week, Attorney General Merrick Garland decided to take matters into his own hands with a Justice Department lawsuit challenging a new Idaho law that, when it takes effect at the end of the month, will allow prosecutors to “indict, arrest and prosecute a doctor merely by showing that an abortion has been performed, regardless of the circumstances.” The rule thus endorses the burden of proof on doctors (that is, to prove whether the woman’s life was in danger or not, for example, or if there was incest or rape, in cases where the law contemplates those exceptions). According to Garland, who warned that it would be the first in a series of legal actions by the Biden administration to mitigate the effects of the new state laws, that provision conflicts with a federal regulation, The Emergency Medical Treatment and Labor Act (EMTALA).

“D&E requires training that many physicians lack,” explains Diament. “With the new laws, it is likely that there will be doctors who prefer not to learn the technique to avoid its possible consequences. It’s not that we don’t have autonomy over our bodies, it’s that doctors can’t watch over our health either. This is not protecting life, quite the contrary. It’s completely surreal.”

“We must not forget that we are facing cases in which pregnancies are absolutely desired. First they have to accept terrible news, and then they are forced to go through a process that is very traumatic for many, and after that, a few weeks later, they have to relive the experience when the hospital bill arrives,” argues Gabriela Benazar Acosta, spokesperson from Planned Parenthood Latino, New York.

Kumar warns, for his part, that “medicine is a science with vast gray areas, no matter how hard these legislators insist on the contrary. No one better than doctors, in an empathetic dialogue with patients and their families, can know in each specific case what is the best way to act.”

These days, stories like Diament’s are emerging in the United States (“they have always existed,” says Kumar, “but now the spotlight is on them”). Stories of women who are sent home by hospitals with instructions to return when they get worse and are “really” bleeding” – “even when it is clear that there is no turning back,” warns the doctor. A patient in Texas whose water broke at week 18 and was advised to stay in the hospital until week 24, which is when the fetus may be “viable” outside the womb. Maybe then, the baby might survive (Alan Peaceman, a professor of maternal-fetal medicine at Northwestern University Feinberg School of Medicine in Chicago, told radio station NPR that the chances are “as close to zero as far as medicine is concerned”).

“All this means that some have to travel to other states because they do not want to wait to get even more sick,” adds Kumar. Since the Supreme Court toppled Roe, class and race are two factors that have surfaced in the debate on reproductive health in the United States. This regressive wave, which comes half a century after the Roe ruling, means that women are having to travel to a state where abortions are permitted. This has created yet another gap, between those who can afford to take vacation days, often unpaid, from their jobs and pay for the trip and the operation, and those who simply cannot afford it. In the case of miscarriages, which are inevitable in between 10% and 20% of pregnancies, the new regulations may have deadly consequences.

Translated by Xanthe Holloway.