I wanted to talk about new laws limiting abortion and how they apply to miscarriages that require medical intervention. This isn’t a new topic, it comes up in the context of the religious directives that govern Catholic hospitals in the US, but I really think it deserves more practical, real-world discussion.
This is the text of the Heartbeat Bill, which is a proposed law in Ohio. Republicans acting on behalf of an extreme anti-abortion group introduced the bill prior to the 2012 election. Despite what national Republicans who are also paid media personalities have assured us about Republican lawmakers moderating their views regarding women, Republicans in Ohio plan to introduce the bill again.
This is the rule:
To amend section 4731.22 and to enact section 2919.19 of the Revised Code to generally prohibit an abortion of an unborn human individual with a detectable fetal heartbeat.
(E)(1) Except as provided in division (E)(2) or (3) of this section, no person shall knowingly perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual that the pregnant woman is carrying and whose fetal heartbeat has been detected according to the requirements of division (C) of this section. Any person who acts based on the exception in division (E)(2) or (3) of this section shall so note in the pregnant woman’s medical records and shall specify in the pregnant woman’s medical records which of the exceptions the person invoked.
And this is the exception for the life of the mother:
(2)(a) A person is not in violation of division (E)(1) of this section if that person performs a medical procedure designed to or intended, in that person’s reasonable medical judgment, to prevent the death of a pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
(b) Any person who performs a medical procedure as described in division (E)(2)(a) of this section shall declare in writing, under penalty of perjury, that the medical procedure is necessary, to the best of that person’s reasonable medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. That person shall also provide in that written document, under penalty of perjury, the medical condition of that pregnant woman that the medical procedure performed as described in division (E)(2)(a) of this section will assertedly address, and the medical rationale for the conclusion that the medical procedure is necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
(c) The person who performs a medical procedure as described in division (E)(2)(a) of this section shall place the written documentation required under division (E)(2)(b) of this section in the pregnant woman’s medical records and shall maintain a copy of the written documentation in the person’s own records for at least seven years.
(3) A person is not in violation of division (E)(1) of this section if that person has performed an examination for the presence of a fetal heartbeat in the fetus utilizing standard medical practice and that examination does not reveal a fetal heartbeat or the person has been informed by a physician who has performed the examination for fetal heartbeat that the examination did not reveal a fetal heartbeat.
Here are some physician accounts of how a prohibition on abortion and reliance on a fetal heartbeat as an indication of viability play out in medical treatment of miscarriages in some US hospitals that are governed by religious directives banning abortion:
Obstetrician–gynecologists working in Catholic-owned hospitals described cases in which abortion was medically indicated according to their medical judgment but, because of the ethics committee’s ruling, it was delayed until either fetal heartbeats ceased or the patient could be transported to another facility.
Dr P, from a midwestern, mid-sized city, said that at her Catholic-owned hospital, approval for termination of pregnancy was rare if a fetal heartbeat was present (even in ‘‘people who are bleeding, they’re all the way dilated, and they’re only 17 weeks’’) unless ‘‘it looks like she’s going to die if we don’t do it.’’
In residency, Dr P and Dr H had been taught to perform uterine evacuation or labor induction on patients during inevitable miscarriage whether fetal heart tones
were present or not. In their new Catholic-owned hospital environment, such treatment was considered a prohibited abortion by the governing ethics committee because the fetus is still alive and the patient is not yet experiencing ‘‘a
life-threatening pathology’’ such as sepsis. Physicians such as Dr H found that in some cases, transporting the patient to another hospital for dilation and curettage (D&C) was quicker and safer than waiting for the fetal heartbeat to stop while trying to stave off infection and excessive blood loss.
“Because the fetus was still alive, they wouldn’t intervene. And she was hemorrhaging, and they called me and wanted to transport her, and I said, ‘‘It sounds like she’s unstable, and it sounds like you need to take care of her there.’’ And I was on a recorded line, I reported them as an EMTALA [Emergency Medical
reatment and Active Labor Act]. And the physician [said], ‘‘This isn’t something that we can take care of.’’ And I [said], ‘‘Well, if I don’t accept her, what are you going to do with her?’’ [He answered], ‘‘We’ll put her on a ﬂoor [i.e., admit her to a bed in the hospital instead of keeping her in the emergency room]; we’ll transfuse her as much as we can, and we’ll just wait till the fetus dies.’’
“I’ll never forget this; it was awful—I had one of my partners accept this patient at 19 weeks. The pregnancy was in the vagina. It was over. . . . And so he takes this patient and transferred her to [our] tertiary medical center, which I was just livid about, and, you know, ‘‘we’re going to save the pregnancy.’’ So of course, I’m on call when she gets septic, and she’s septic to the point that I’m pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she’s106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn’t let me because there was still a heartbeat. This woman is dying before our eyes. I went in to examine her, and I was able to ﬁnd the umbilical cord through the membranes and just snapped the umbilical cord and so that I could put the ultrasound—‘‘Oh look. No heartbeat. Let’s go.’’ She was so sick she was in the [intensive care unit] for about 10 days and very nearly died. . . .She was in DIC [disseminated intravascular coagulopathy]. . . . Her bleeding was so bad that the sclera, the white of her eyes, were red, ﬁlled with blood. . . .And I said, ‘‘I just can’t do this. I can’t put myself behind this. This is not worth it to me.’’ That’s why I left.
Dr G also circumvented the ethics committee in her southern Catholic-owned hospital. She was 14 weeks and the membranes were literally out of the cervix and hanging in the vagina. And so with her I could just take care of it in the [emergency room] but her cervix wasn’t open enough . . . so we went to the operating room and the nurse kept asking me, ‘‘Was there heart tones, was there heart tones?’’ I said ‘‘I don’t know. I don’t know.’’ Which I kind of knew there would be. But she said, ‘‘Well, did you check?’’ . . . I said, ‘‘I don’t need an ultrasound to tell me that it’s inevitable . . . you can just put, ‘The heart tones weren’t documented,’ and then they can interpret that however they want to interpret that.’’ . . . I said, ‘‘Throw it back at me . . . I’m not going to order an ultrasound. It’s silly.’’ Because then that’s the thing; it would have muddied the water in this case.
Clearly the national anti-abortion group that drafted the Ohio bill are aware of this, since it seems they included an exception that is meant to address medically-assisted miscarriage management. I don’t know why this doesn’t get discussed, but it seems like it’s past time to raise it.
Conservatives and media have quietly dropped the phrase “the health of the mother” in discussions about abortion and narrowed it to the “life of the mother.” I don’t accept those limits on this debate. Instead I’d like to return to a focus on health of the mother and actually broaden that to explore how these laws may reach women who are not seeking an elective abortion, but are instead receiving medical care for what is called “miscarriage management.”
Thanks to ABL for sending me the law review article.