I’m A Health Care Attorney. Here Are The Dangers My Doctors Face Now That Roe Is Gone.
Calls at 1 a.m. from the hospital are never easy. When you’re in bed by 9 p.m. and up at 5 a.m. nearly every day, 1 a.m. hits at the exact wrong time. Years of always ensuring my ringer is on before I go to sleep have caused a near-Pavlovian response when it does actually ring. I answer the phone half-asleep. It’s the middle of the night, and there is only one reason why someone is calling the hospital attorney: There’s a crisis, and the providers don’t know what to do.
It could be any one of a thousand things.
The police are in the emergency department demanding information about one of our patients. They are threatening our staff with jail if they fail to provide copies of medical records. They don’t have a warrant or subpoena. Should we give them the records and likely violate the privacy law know as HIPAA, or is there another course of action?
A parent is refusing psychiatric care for their 14-year-old. Is there a way to provide care over the parent’s objections?
A patient with a long-standing debilitating and terminal illness has intentionally harmed themselves. Who should make the decisions about their care and treatment?
These calls are not solely “legal” in nature. Instead, they are a difficult blend of legal and ethical questions. Many questions arise from concerns about a patient’s ability or inability to consent for care. More often than not, there is no clear or right answer. But we work with the physician to find a path forward after reviewing the facts of the situation.
Our providers turn to attorneys because they are looking for a black-and-white answer to the problem they are facing. Occasionally, I get to tell them that there is, in fact, a law that is directly on point given the facts of the situation. But those situations are rare. We are working through gray, and when we do finally create an action plan, we are sometimes left with lingering questions about whether it was the right thing to do, morally, ethically and sometimes legally.
I would never complain about this work. It is an honor and a privilege to help support our physicians and other providers through these difficult situations. It is clear to me that these are people who care deeply about the health and safety of their patients. They are doing the hard work of caring for their patients, and I want to be able to support them however I can.
But hospital attorneys in Missouri and other states are facing a new kind of problem. It’s a situation where health care ethics as well as medical standards of care tell physicians they should do one thing, but the law appears to be in conflict. I am talking about the complete ban on abortion in Missouri except in the case of “medical emergency.”
In some ways, the abortion laws in the state have not changed. In fact, for Missouri hospitals that receive public funds, there has been a complete ban on performing abortions except in the case of a medical emergency for more than 10 years. Those facilities have already had a taste of what it means to work through abortion laws that are complicated and unclear. The difference now is that the Missouri “trigger ban” assigns criminal penalties to physicians (and possibly to women) who perform (or cause) an abortion outside of a “medical emergency.” The criminal penalties are felony charges that carry jail time, fines and potential loss of medical license. The trigger ban went into effect on Friday, June 24, the day the U.S. Supreme Court overturned Roe v. Wade.
“Our providers turn to attorneys because they are looking for a black-and-white answer to the problem they are facing. Occasionally, I get to tell them that there is, in fact, a law that is directly on point given the facts of the situation. But those situations are rare.”
Let’s take a look at the plain language of the statute. There are two definitions in Section 188.105 that we must be familiar with. First, “abortion” is defined as:
(a) The act of using or prescribing any instrument, device, medicine, drug, or any other means or substance with the intent to destroy the life of an embryo or fetus in his or her mother’s womb; or
(b) The intentional termination of the pregnancy of a mother by using or prescribing any instrument, device, medicine, drug, or other means or substance with an intention other than to increase the probability of a live birth or to remove a dead unborn child.
The plain language makes it difficult to differentiate between (a) and (b). Next, look at “medical emergency”:
‘Medical Emergency’ [is] a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman 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.
There are two main issues with the law as written.
The first is that there is no definition of “pregnancy” in the statute. It may seem silly, but there is no common agreement about when a pregnancy starts. There is language in other parts of the statute in which the legislature refers to life beginning at conception, but that language does not specifically tie to the definition of pregnancy that is necessary to interpret the abortion statute. So, does pregnancy start at conception? Does pregnancy start at implantation in the uterus? Should you define pregnancy the same way you would calculate gestational age (the first day of the last menstrual period)? This is important because if you are not “pregnant,” then there is no “abortion” under the statute.
The second issue is the definition of “medical emergency.” Since Missouri is now under a total abortion ban with no exceptions, even for rape or incest, the only way to legally perform an abortion is if the woman faces a “medical emergency.” Under the statute, a medical emergency is a situation that necessitates the immediate abortion of the woman’s pregnancy to avert the death of the pregnant woman. The second sentence of the definition allows for an abortion when a delay will cause irreversible physical impairment of a major bodily function.
There are a few things that are concerning about this definition. The first is the immediacy language. A plain-language reading would imply that it would need to occur “right now” in order to avert death. Does that mean that you cannot perform an abortion in a situation where a woman will experience death with no intervention, but, perhaps not right now? How do you prove that someone was close enough to death to warrant the abortion? How do you know, for sure, if a condition will cause irreversible physical impairment of a major bodily function as opposed to a difficult, but temporary impairment?
What about someone who is high-risk for death by virtue of being pregnant? Are they required to carry the baby until they experience the predicted life-threatening complication? Since there is no exception for rape or incest, this is a very important question when you are talking about very young girls (9-14) becoming pregnant. It is also an important question for patients with chronic medical conditions that will be exacerbated by a pregnancy.
The focus on the “death” of the woman and not just health further complicates this analysis. In addition, not being permitted to remove a “dying” fetus, which was permitted under the law and then removed a few years back, makes this provision even more narrow.
This lack of clarity even led one Missouri health system to pull emergency contraception from their sexual assault kits. I am also hearing of delays in treating ectopic pregnancies.
Every time an abortion is performed in a Missouri facility, the provider is required to submit a Report of Induced Termination of Pregnancy to the state. The information in the report is ostensibly used for public health purposes. However, the Missouri Department of Health and Senior Services is clear that the reports can be used for other purposes.
My expectation is that these reports will be reviewed for potential prosecution. Under the Missouri statute, the physician must offer an affirmative defense in order to prove that the termination of pregnancy was, indeed, a medical emergency. That is, the statute shifts the burden for criminal prosecution from “innocent until proven guilty,” to “guilty until proven innocent.”
The Missouri attorney general offered an informal statement through his spokesperson that he does not interpret the ban as affecting any kind of birth control. However, the statement is not legally binding, and any local prosecutor is free to interpret the statute how they see fit.
It is no wonder that hospital attorneys are getting calls to help physicians work through these laws. And while the focus of this article is on the impact to physicians, the real victims are the patients. You do not go to an acute care hospital for the purpose of seeking an abortion for convenience. You get to the hospital because something is wrong. Either the patient has an underlying condition that is causing complications, or there is simply something wrong with the pregnancy. Our patients are wives, mothers, sisters and co-workers who are dealing with tremendously difficult situations. Their lives can be risked by delaying lifesaving care.
Even with all of these questions lingering, Missouri does not have the worst laws in the country. There is at least a medical emergency exception that there is some flexibility to interpret. There is also not an explicit ban on drugs that may be abortifacients, but which are the standard of care for some chronic conditions. That means that, unlike in some other states, women are still able to access the medications they need to treat their chronic conditions.
For my own part, I have been willing to endure “reasonable” limitations on access to abortive care. However, I am now convinced that government is incapable of drafting legislation that can fairly cover all of the nuances of human reproduction. Any time it ventures to ban abortion, there are severe consequences to women and their families.
I will not support candidates who believe their place is with me, in my doctor’s office.
I will not support candidates who believe the most important thing for the government to do is to control the lives and livelihoods of people who can bear children.
We are in a time of great political flux. I encourage anyone who cares about access to health care to engage in the political process. Kansas is the first state that will have the opportunity to vote to protect access to abortive care in the future. During the Aug. 2 primary, Kansas voters will be presented with a constitutional amendment. While the amendment would take no specific action on abortion, its purpose is to allow the legislature to enact whatever laws it sees fit related to abortion, even in cases of rape or incest. There is already a total abortion ban ready to be introduced by the legislature in the event the amendment passes. I encourage Kansas voters to vote “no” on the proposed amendment.
Because, in the end, an abortion ban is government intervention into the most private and significant portions of our lives. Once given this power, there is nothing to stop legislators from controlling our bodies in countless and untold ways.
Note: The author is a hospital-based health care regulatory attorney in Missouri. Nothing in this article should be viewed as legal advice, or establishing an attorney-client relationship. The views expressed in this article are the author’s own and do not represent her employer or any other organization.
Lisa Larson-Bunnell is a health care regulatory attorney who has been practicing in Missouri hospital settings since 2006. She received her B.A. from Knox College followed by J.D. and Master of Healthcare Administration from Saint Louis University. She previously served as adjunct faculty for the Saint Louis University College for Public Health and Social Justice.