‘A scary time’: Fear of prosecution forces doctors to choose between protecting themselves or their patients

Last Wednesday, a patient walked into Julie Rhee’s fertility clinic in St. Louis with pelvic pain that was getting steadily worse. She had a history of ectopic pregnancies and, following months of IVF treatment, was showing all the signs of another one. A recently implanted embryo was growing inside the fragile walls of her fallopian tube, threatening to burst them open and cause internal bleeding at any moment. She needed surgery, and fast. For the first time, though, Rhee discovered her clinical judgment wasn’t enough. She would have to present her case to a hospital ethics committee.

In the days after the U.S. Supreme Court overturned Roe v. Wade, Missouri was one of several states that rushed to pass legislation that bans physicians from terminating a pregnancy unless the mother’s life is in immediate danger. Physicians like Rhee risk losing their medical license and more than a decade of prison time if they violate these laws, so doctors and hospitals are taking no chances.

Though an ectopic pregnancy will never result in childbirth, and can cause massive internal bleeding and death if left untreated, the ethics team at Mercy Hospital had to determine that Rhee was exercising appropriate judgment and her patient was in danger before she could be rushed to the operating room. The added bureaucracy took more than half a day of work, and Rhee felt the oversight was intended to protect her and the hospital, at the expense of her patient.

“When we graduate medical school and take the Hippocratic oath, we vow to first do no harm to the patient, and to keep the patient’s best interests in mind,” said Rhee, an OB-GYN and a reproductive endocrinology and infertility specialist who noted she was speaking only for herself, not a medical practice or hospital. Seeking approval from ethics committee members with no clinical expertise can help document that physicians are acting within the law, she added, but puts patients’ lives at risk: “I can’t think of another situation where we’re feeling cornered to choose between the two.”

State laws criminalizing abortion after the Supreme Court’s Dobbs decision have put physicians under intense scrutiny and made them fearful, with implications that extend well beyond abortion. Already, treatment of serious pregnancy complications, and even the unrelated use of an abortion medication by patients with arthritis and autoimmune disorders such as lupus, has been affected.

State abortion laws are often vague about what constitutes a medical emergency, meaning doctors, hospitals, and clinics risk being second-guessed by prosecutors. “This is a scary time. If you have a state that wants to set an example, they’re looking for cases to prosecute,” said Lisa Larson-Bunnell, a health care attorney for a Missouri hospital.

Missouri does not define pregnancy, but describes medical emergency as a condition requiring “immediate abortion” to prevent death “or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” Arkansas and Oklahoma define medical emergency as when the pregnant person’s “life is endangered by a physical disorder, physical illness, or physical injury,” while Texas has a medical emergency exception but does not define the term.

In Missouri, every abortion must be reported to the state, and prosecutors can request a court order to examine records and confirm a medical emergency was present. “I can’t tell my physicians I’m not worried about an overzealous prosecutor,” said Larson-Bunnell, who did not specify which hospital she works for so as to protect her client’s identity.

Although Rhee’s patient was able to get surgery in time, physicians are worried that delays could imperil other patients. The lack of specificity over what counts as a threat to the mother’s life means some doctors feel pressure to sit and watch patients’ health deteriorate until they’re able to intervene. Serena H. Chen, a fertility doctor in private practice in New Jersey, said a friend in Missouri had been told by her hospital to wait until patients with ectopic pregnancies are unstable before taking them to the operating room. Jane van Dis, professor of obstetrics and gynecology at University of Rochester Medical Center in New York, also tweeted that colleagues in Missouri were now waiting to treat ectopic pregnancies until their patients had falling hemoglobin levels — an indication of blood loss — or unstable vital signs.

“That kind of thinking is exactly what we were taught not to do in medical school and residency. To have situations where laws are telling doctors to go against their training and medical expertise is very scary,” said Chen. “A young healthy person will tolerate large amounts of blood loss before you can measurably say they’re unstable. Once they’re unstable, they can be very quick to deteriorate.”

Ectopic pregnancies are “like a bomb that’s about to go off in the belly,” Chen said, adding that a patient can look fine, only to be in a deadly situation moments later.

Treatment delays could also be dire for patients with preeclampsia, a dangerous rise in blood pressure during pregnancy that can be fatal, especially for Black patients, with Hispanic and Indigenous patients also facing higher risk than white people. The condition can create a cascading series of symptoms that can only be prevented by terminating the pregnancy. “It can be slow or fast, mild or severe,” said Chen. “It has a huge range of manifestations, and can affect every organ in the body.”

If ethics committees slow down physicians’ decisions about appropriate care, patients will inevitably be placed in highly risky situations, Chen said. ”People are afraid. It’s really a very difficult and potentially dangerous situation,” she added.

Some patients have what’s known as a pregnancy of unknown location, when a pregnancy can’t be seen in the uterus on ultrasound and doctors are unsure if a patient has miscarried or has an ectopic pregnancy. In these cases, doctors typically perform a dilation and curettage, a D&C for short, which is the same procedure used for many abortions. “A diagnostic treatment like that might not be a viable option” in states that have banned abortion, said Roohi Najeemuddin, an OB-GYN and fertility doctor in Chicago. “You’ll have to wait and watch and unfortunately put the patient’s life in danger. … It’s horrible to be stuck in the middle.”

The definition of pregnancy is also uncertain in some states and, where there is vagueness, the start of pregnancy is often calculated as the first day of a woman’s menstrual cycle — which predates conception by several weeks. This has contributed to confusion over whether Plan B, the emergency contraceptive, could be considered a violation of newly passed laws. Saint Luke’s Health System in Kansas City, Mo., briefly stopped the provision of all emergency contraception, including for sexual assault victims, in response to the state’s abortion ban, before reversing course following pushback.

Health care implications go beyond pregnancy. Methotrexate, a drug that can be used for abortion, is also a treatment for patients with arthritis, and is standard off-label medication for autoimmune conditions such as lupus. Last Thursday, lupus patient Becky Schwarz received a message from her doctor’s office, saying methotrexate refills were being paused for all patients, regardless of age or gender, in response to the repeal of Roe v. Wade. Her doctor didn’t medically agree with this decision, said Schwarz, but worked for a large health care system in Virginia and couldn’t go against a company policy apparently motivated by fear that the drug could cause an abortion, though the procedure remains legal in Virginia through the second trimester.

Schwarz, who is 28, said the medication was dramatically effective in treating her joint pain and, without it, she will inevitably have a flare of her disease. “Before I started taking it, I was not able to do much at all, I was pretty immobile,” she said. “Within a month, I was feeling great. Not perfect, but I could take a shower unassisted.”

Methotrexate can cause liver damage if taken long-term, and so she and her doctor had discussed slowly weaning her off the drug to try another medication. Such an abrupt stop, though, will send her immune system into overdrive and create incapacitating symptoms. And so Schwarz has been in survival mode, she said, getting her mobility aids in place before her body descends into another period of agonizing pain.

“There’s a lot of residual anger. I’m not in a relationship or looking to get pregnant any time soon. The idea that this was stopped because it could cause me to have an abortion feels really cruel, like I’m a second-class citizen compared to a future child,” she said. “I don’t want to feel so miserable because of the idea I could maybe one day have a baby, and not be trusted by the government to be responsible for my own body and decisions.”

Harry Nelson, founder and managing partner of the Nelson Hardiman health care and life sciences law firm in Los Angeles, which advises physicians all over the country, said he’s had multiple calls from providers in Texas who are now scared of having anything to do with methotrexate. Even if it’s not intended to be used for an abortion, physicians are afraid that if the drug inadvertently causes a loss of pregnancy for a patient taking it as a rheumatology treatment, they could face repercussions. The American College of Rheumatology announced it was creating a task force of medical and policy experts to help ensure patients can continue to access the treatments they need.

“It’s creating a climate of fear for doctors who are not abortion-focused but need to use that medication,” Nelson said. He has advised physicians it’s safe for doctors to prescribe methotrexate for arthritis, but said there’s no definitive answer to this or many other issues.

“A lot of the questions we’re addressing are questions regulators haven’t weighed in on yet. The more we can put out thoughtful info, the more we can influence how regulation will proceed,” Nelson said. For now, it’s up to lawyers to try and figure out the meaning of new legislation. “We have attorneys all over the place trying to interpret these laws, [with] no support from the state,” agreed Larson-Bunnell.

In states without new abortion laws, physicians are unsure whether they could be prosecuted for treating patients from states with more restrictive legislation. Previously, physicians have never had an obligation to verify where patients live. But last Thursday, Planned Parenthood of Montana announced it would no longer provide medication abortions to patients from states that have banned the procedure, as the “rapidly changing” legal access made this too risky. The group said it would still provide surgical abortions to patients who travel from states with restrictive laws.

Navigating the new legal system is a burden even for physicians who manage to protect both themselves and their patients. Getting permission to operate on just one woman with an ectopic pregnancy was “a very mentally draining exercise,” said Rhee, the St. Louis doctor. “I found myself thinking, ‘Oh my gosh, if I need to think like this for every pregnancy of unknown location or ectopic, this is going to take its toll.’”

The consequences of putting yet more pressure on physicians will ultimately result in worse care, said Chen. “We’re already facing a physician shortage, burnout crisis, highest rates of suicide we’ve seen in ages, and people leaving medicine in droves because of the broken health care system and pandemic. To now say if you do the right thing you could be put in jail, it’s going to make health care worse for everyone.”