Proceedings of a Workshop—in Brief

Challenges in the Provision of Lifesaving Care for Pregnant Patients Following the Overturn of Roe v. Wade

Proceedings of a Workshop—in Brief

OVERVIEW

State laws restricting abortion often contain some degree of exception to save the life of the pregnant person, but varying legal interpretations of those exceptions may create a confusing legal landscape for clinicians and lead to delays providing lifesaving treatment to patients.

On June 29, 2023, the National Academies of Sciences, Engineering, and Medicine Standing Committee on Reproductive Health, Equity, and Society held a virtual public workshop to explore the current challenges of, and potential solutions to, delay in the provision of lifesaving care for people experiencing pregnancy complications or serious illness or injury while pregnant. Speakers considered the myriad of legal, policy, and provider challenges, and the effect of these challenges on the delivery of care and clinician well-being. The workshop discussion also considered some potential strategies to ensuring the provision of lifesaving care for individuals experiencing pregnancy complications.

This workshop was the second in the After Roe webinar series¹ organized by the Standing Committee on Reproductive Health, Equity, and Society. The series examines the effect on access to reproductive health care following the U.S. Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision that removed the right to abortion by overturning the 1973 Roe v. Wade decision.

This Proceedings of a Workshop—in Brief is a high-level summary of the topics and discussions that occurred during the workshop. It should not be viewed as providing consensus conclusions or recommendations of the National Academies.

OPENING REMARKS

Victor J. Dzau, president of the National Academy of Medicine, acknowledged that clinicians are in a difficult position, tasked with determining how to best care for patients when “legal restrictions may conflict with recommended medical interventions.” He explained that this creates real risk for pregnant patients and noted that there have been cases in which care has been “delayed until the situation is life threatening.” These challenges come at a time when rates of maternal mortality are high in the United States, he said.

Claire Brindis, workshop moderator, explained that although many states enacted new abortion restrictions

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following the Dobbs decision, “Few of these have really considered the full breadth of situations in which patients may be forced to consider abortion, whether for a desired pregnancy or an unintended pregnancy.” She described a few pregnancy complications in which “legal interpretations of lifesaving care” have come into conflict with evidence-based medical standards of care, including ectopic pregnancy and “incomplete miscarriages where hemorrhaging and infection can ultimately threaten the woman’s future fertility” and life in many cases. Brindis explained that in cases like these, the early-stage pregnancy may not be immediately life threatening but can escalate quickly and limit clinicians’ opportunities to intervene. Interpretations of state laws can vary from health system to health system or clinician to clinician, meaning that patients must contend with uncertainty as they seek care.

LEGAL CHALLENGES IN DEFINING LIFESAVING CARE

Kayte Spector-Bagdady (University of Michigan Medical School) presented some of the legal challenges in defining lifesaving care following the Dobbs decision. Her presentation touched on the lack of clarity and consistency in defining and enforcing the exceptions for lifesaving care in several states that restrict abortion as well as the confusion and fear of legal repercussions that health providers face when delivering urgently needed medical care.

She began with an overview of the effects of vague or unclear legal language in Texas related to the state’s challenge to the Emergency Medical Treatment and Labor Act (EMTALA), a federal law passed in 1986 that requires emergency medical departments to stabilize patients experiencing an emergency medical condition. Spector-Bagdady said that, after the Supreme Court released its opinion in Dobbs, President Biden directed the Secretary of Health and Human Services (HHS) to identify potential actions to “protect and expand access to abortion care.” As part of that response, the Centers for Medicare and Medicaid Services (within HHS), reinforced via public memo that EMTALA demands that if the emergency medical condition of a pregnant patient requires an abortion to provide stabilizing treatment “the physician must provide that treatment” even if they are in a state with a more restrictive abortion law. The state of Texas was subsequently granted an injunction to prevent enforcement of that interpretation of EMTALA. Spector-Bagdady noted that there are significant differences between EMTALA and Texas state law in terms of criminal versus civil enforcement that affects clinicians: under EMTALA the hospital faces heavy civil penalties; under Texas law, the physician can go to jail for life, which is likely to impact physician behavior.

She referenced Zurawski v. State of Texas, a lawsuit brought by The Center for Reproductive Rights on behalf of 15 plaintiffs who alleged they were not able to access an abortion to stabilize their emergency medical condition in a timely fashion.² Spector-Bagdady described one instance in which a patient was experiencing pregnancy complications that were going to “result in fetal demise” and was repeatedly sent home because the complications were not severe enough according to the laws/regulations of that state to access for abortion care. The complications ultimately worsened to the point that she required critical care, she lost a fallopian tube, and her uterus collapsed.

Spector-Bagdady also gave an overview of the legal landscape related to abortion care in Michigan. She explained that, when the draft Dobbs decision was leaked in May 2022, the state attorney general successfully filed an injunction to prevent a 1931 state law restricting abortion—which would be triggered by a repeal of Roe v. Wade—from taking effect. However, several county attorneys general filed a complaint in another court “saying that the injunction was invalid and that they were going to enforce the 1931 law in their county if Dobbs allowed for it.” In the following August, the Michigan Court of Appeals lifted the injunction against the 1931 law and stated that the injuction had been invalid all along. Spector-Bagdady said that at that point it temporarily appeared as though all abortions that had occurred between the dates of the injunction being granted and lifted might have been interpreted to be illegal. However, she explained that another injunction was granted the same day and now a constitutional amendment protecting broad reproductive rights including abortion has been adopted in the state.

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Spector-Bagdady said these two cases offered insight into the “confusion and tension” that exists in the wake of the Dobbs decision and can lead clinicians to be hesitant to act. Spector-Bagdady predicted that states with such restrictive criminal abortion laws might not even have to enforce them due to the fear of clinicians to violate them in the first place. She noted that there have been “almost no enforcement against practitioners and pregnant patients,” yet because of this fear and because lawmakers may not want to file cases that could potentially overturn the laws to be taken to court.

REFLECTIONS FROM HEALTH CARE PROVIDERS

Brindis introduced a panel of five physicians to reflect on the challenges they have experienced while navigating changes in state-level abortion laws and delivering health care services for individuals experiencing pregnancy complications. The speakers also discussed changes they have noted in patients’ experiences accessing care.

Changes in Care Delivery

David Eisenberg (Washington University in St. Louis), who practices in Missouri and Illinois, explained that his experience delivering care in Missouri had changed over the last several years owing to “tightening and ever narrowing restrictions on abortion care” that created a “post-Roe reality” even before the Dobbs decision in the state. He said the passage of these restrictions has made it increasingly difficult to provide care to patients and that “more and more of our patients were seeking care in southern Illinois.” Eisenberg explained that, since the Dobbs decision prompted a law³ to go into effect in Missouri, under which he can no longer provide abortion care to pregnant patients with “life-limiting or lethal fetal anomalies” and that he can only provide this care for patients with medical emergencies. Eisenberg noted that support from the legal team at his institution throughout the increase in restrictions over the last several years has helped clinicians there better navigate the changes resulting from the Dobbs decision.

He shared an experience with recent patients experiencing a medical emergency who received abortion care. One patient experienced an “incomplete spontaneous abortion” so terminating the pregnancy was necessary to prevent life-threatening infection. Another patient had “life-threatening complication where the placenta is growing into the wall of the uterus” putting the patient at risk of uncontrolled hemorrhage. Eisenberg explained that some hospitals in the community have not provided care for patients experiencing pregnancy complications because they are concerned about the potential legal consequences.

Judette Louis (University of South Florida) explained that her institution is a safety net hospital caring for many patients who do not have financial resources and that this “population is being hit hard by these changes.” Florida had a law in place banning abortion after 15 weeks of pregnancy with an exception to protect the life of the mother, which Louis said was “very crucial for the population that we serve.” In 2023, the state legislature passed a 6-week abortion ban and Louis described how clinicians and hospitals are now concerned about or unwilling to care for patients with certain pregnancy complications, such as severe preterm preeclampsia, which can cause seizures and is life threatening for the pregnant patient. Louis said that, as Eisenberg described, she has also encountered cases in which hospitals have not provided abortion care to patients experiencing a “rupture of membranes before a point where the baby can survive,” instead waiting for the patient to become ill enough “to irrefutably prove that the mom’s life was in danger.” She noted that, in such cases, sometimes the condition progresses to a point where the patient becomes critically ill, develops a uterine infection, or can no longer be saved. Louis also shared that the restrictive laws have led to some physicians at her institution leaving to practice in states with fewer restrictions on abortion care. She said that this affects clinicians’ “ability to provide adequate obstetric care to all patients” and affects pregnant patients’ wait times for appointments and access to care.

Kimi Chernoby (George Washington University) offered an emergency medicine perspective, explaining how

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important emergency medical services are for pregnant patients. She noted that pregnancy complication is the “fifth most common reason that women of reproductive age come to the emergency department, and 80 percent of pregnant patients report using the [emergency department] at some point during their pregnancy.” Chernoby explained that in states with restrictive abortion laws, there is conflict between those laws and EMTALA. For example, she said a pregnant patient may go to an emergency department with an ectopic pregnancy and then have a hospital refuse to provide care until the complications advance to a more severe stage. She said that hospitals must consider EMTALA when developing policies for how to manage abortion care for patients with pregnancy complications. Chernoby noted that the Centers for Medicare and Medicaid Services this year found two hospitals, in Missouri and in Kansas, “had violated EMTALA by not offering emergency abortion care for a patient who had ruptured at 17 weeks” pregnant.

Leilah Zahedi-Spung (University of Colorado) explained that, before January 2023, she provided maternal-fetal medicine and abortion care in Tennessee and that it was “terrifying” being the only second-trimester abortion care provider in her city. She said that continuing to practice in the state became untenable after the Dobbs decision triggered a “complete ban without any exceptions for maternal life.” She described “sending patients out of state in ambulances on a regular basis” so they could receive the care they needed. The only “legal wiggle room” for a physician providing abortion care, Zahedi-Spung said, was to “prove that the abortion care that I had provided was lifesaving after being charged with a felony.” She added that, after making the decision to move and practice in a state without restrictive abortion laws, she is able to go into a patient’s room and help them make the decision that is right for them and without delays in care.

In Colorado, a state that has protected access to abortion, many patients are coming from other states to seek abortion care. Zahedi-Spung noted the “volume has gone up eight times” in the state since the Dobbs decision, and all the patients in a clinic where she provides abortion care are from outside Colorado.

Ariela Marshall (University of Minnesota) described clotting and bleeding conditions that are common during pregnancy and explained that, in the cases of some conditions, “Women who have them require very specialized management during pregnancy, and it can be very serious and dangerous for these women during a desired pregnancy.” Marshall explained that managing these conditions for pregnant patients who wish to remain pregnant is critical to ensuring they do not experience severe or potentially life-threatening complications during pregnancy or delivery, and that in some cases termination of pregnancy can be lifesaving. She referenced a case in which a young woman with immune thrombocytopenia, a low platelet count that puts her at risk for bleeding, had been refused care for her condition because she was seeking an abortion. However, in a “catch-22” her condition worsened during pregnancy so that abortion was safer than proceeding with pregnancy—but the procedure was not able to be performed until the condition was treated further. Marshall said she was concerned that these types of situations would become more common and there would be more cases where pregnant patients—including in cases of unwanted pregnancies—would need to seek this specialized care. She explained that access to appointments is a concerning factor and that wait times for appointments at some institutions can be months long, noting that “It’s unreasonable to tell somebody who’s in their third trimester of pregnancy, that a waiting list to get necessary treatment is 6 months.”

Effects on Access to Care

Eisenberg said he is seeing many more patients coming to Illinois from states with restrictive abortion laws, including Alabama, Kentucky, Mississippi, Oklahoma, and Texas, “because they know they can get an abortion in Illinois.” He explained that Illinois passed measures in 2019 protecting access to abortion care, and more recently lifting the parental notification requirement for teenagers. Eisenberg also noted that, owing to uncertainty about where patients can go for abortion care and myriad obstacles they face, he is seeing an increase

in the number of patients seeking abortions later in their pregnancies.

Many speakers raised equity concerns when it comes to accessing abortion care. Louis described how many patients that her institution serves do not have the resources to go out of state to seek abortion care. Zahedi-Spung said that “disproportionately our patients of color and lower socioeconomic status” are unable to access abortion care and “those are also the people at highest risk for maternal morbidity and mortality.” Marshall added that, for patients who already face challenges accessing care, the need to travel out of state creates additional burdens.

Chernoby said that more patients are “self-managing” abortion because they are unable to access care.

Zahedi-Spung added that, as obstetric gynecologists leave states with restrictive abortion laws, this creates “obstetric care provision deserts.” She said patients with wanted pregnancies may be faced with needing to travel farther to access routine prenatal care.

Eisenberg shared a study he conducted with colleagues that indicates worsening outcomes for pregnant patients in states with restrictive abortion laws. As several states increased abortion restrictions after 2009, “We saw a statistically significant increase in maternal mortality ratios in those most restrictive states when compared to the protective states.”

PROMISING STRATEGIES FROM OUTSIDE THE UNITED STATES

Caitlin Gerdts (Ibis Reproductive Health) presented on strategies used around the world to ensure access to evidence-based abortion care, including where restrictive laws prevent patients from accessing care in the formal health sector.

Gerdts gave a brief overview of types of abortion care in use around the globe, including “self-managed”—or “without clinical supervision”—medication abortion where patients may employ information and resources from “nonclinical sources like websites or safe abortion hotlines or nonclinically trained abortion counselors.” She explained that there are two World Health Organization–recommended medication regimens for self-managed medication abortions: misoprostol or misoprostol in combination with mifepristone. Gerdts noted that “pregnant people in Brazil…first discovered the use of misoprostol…as an effective abortive agent.” She emphasized that decades of medical research have “demonstrated that people can safely and effectively use these medications without clinical supervision” and that there is recent evidence that self-managed medication abortions “supported by nonclinically trained counselors…is no less effective than medication abortion in a clinic setting.”

Despite the evidence of the safety of self-managed medication abortion, Gerdts said, many people face challenges accessing the medications, and there are legal risks for people in many parts of the United States and other places with restrictive abortion laws. She explained that these risks are disproportionately greater for “people in communities that already face the greatest barriers to care,” including “Black communities, Indigenous communities, other communities of color, trans and nonbinary communities, immigrant communities, and other communities that have been historically marginalized.”

Gerdts discussed “medication abortion accompaniment,” a strategy used to provide access to safe abortion care in places with restrictive abortion laws. She said volunteer-based abortion accompaniment networks “support people self-managing abortions with counseling and evidence-based information” and “provide referrals, resources, and wraparound, follow-up care.” Volunteers support people who are “self-managing their abortions every step of the way,” and in some cases they refer [people] to pharmacists or other sources for medications.” Gerdts explained that these networks have long been in operation in countries with restrictive abortion laws.

After the Dobbs ruling, Gerdts said that research in the United States is showing “a dramatic increase in telehealth provision, online procurement of abortion pills, and increasingly people sourcing pills” through networks inside and outside the country. She noted

inequities in accessing reproductive health care and explained that people may pursue self-managed medication abortion for many reasons, including to avoid “interactions with the medical system that has discriminated against them or their communities” or because of the prohibitive cost of clinical care or barriers to access.

DISCUSSION

To close the workshop, speakers responded to questions posed by audience members. The speakers were asked to comment on strategies for capturing data related to the effects of legal restrictions on access to abortion care. Several speakers identified potential barriers to, and concerns around, data collection. Chernoby noted that one barrier to data collection is lack of uniformity across terminology that physicians use to refer to different types of procedures. She described how a study in the Journal of Contraception found many physicians were not using the term abortion to describe caring for patients with certain pregnancy complications “even though we know that technically it meets the criteria for abortion.” Gerdts noted that the Advancing New Standards in Reproductive Health research program at the University of California San Francisco has a data collection effort underway to document the effect of abortion restrictions.

Zahedi-Spung added that the Society for Family Planning is conducting a data collection effort to identify changes in abortion access across states following the Dobbs decision. Eisenberg raised the issue of confidentiality and the need for data collection efforts to be designed to avoid creating additional barriers for pregnant patients seeking care, especially given the potential legal risks they may face depending on the state in which they reside.

Acknowledging the legal risks that pregnant patients may face seeking abortion care, speakers were asked to reflect on ways clinicians can help reduce these risks. Louis noted the importance of clinicians doing “due diligence to understand ways in which we may harm the patient based on our documentation” and that clinicians who “bury their head in the sand…can unintentionally do harm.” Spector-Bagdady mentioned the use of criminal penalties in other areas related to reproductive care, explaining that there has been “a lot of criminal enforcement in the area of protecting the fetus” and that these types of laws are “being used in targeted, discriminatory ways.”

DISCLAIMER This Proceedings of a Workshop—in Brief has been prepared by Jamie Durana as a factual summary of what occurred at the meeting. The statements made are those of the rapporteur or individual workshop participants and do not necessarily represent the views of all workshop participants; the planning committee; or the National Academies of Sciences, Engineering, and Medicine.

*The National Academies of Sciences, Engineering, and Medicine’s planning committees are solely responsible for organizing the workshop, identifying topics, and choosing speakers. The responsibility for the published Proceedings of a Workshop—in Brief rests with the institution.

COMMITTEE MEMBERS Claire Brindis (Chair), University of California, San Francisco; Andreia Alexander, Indiana University School of Medicine; Elizabeth Ananat, Barnard College, Columbia University; Corale L. Brierley, Brierley Consultancy, LLC; Ned Calonge, Colorado School of Public Health; Judy Chang, University of Pittsburgh School of Medicine; Ellen Wright Clayton, Vanderbilt University; Cat Dymond, Atlanta Birth Center; Michelle Bratcher Goodwin, Georgetown University School of Law; Barbara Grosz, Harvard University; Vincent Guilamo-Ramos, Duke University School of Nursing; Lisa Harris, University of Michigan; Paula Johnson, Wellesley College; Justin R. Lappen, Case Western Reserve University School of Medicine; Monica McLemore, University of Washington Schools of Nursing and Public Health; Robert Moffitt, Johns Hopkins University; Rebecca R. Richards-Kortum, Rice University; Sara Rosenbaum, George Washington University; Yvette Roubideaux, Colorado School of Public Health; Alina Salganicoff, KFF; Susan Scrimshaw, University of Illinois at Chicago; LeKara Simmons, AMAZE; Melissa Simon, Northwestern University; Lisa Simpson, AcademyHealth; Tracy A. Weitz, American University; Katherine L. Wisner, Northwestern University Feinberg School of Medicine.

REVIEWERS To ensure that it meets institutional standards for quality and objectivity, this Proceedings of a Workshop—in Brief was reviewed by Leilah Zahedi-Spung, University of Colorado and Abigail English, Center for Adolescent Health & the Law, University of North Carolina. Leslie Sim, National Academies of Science, Engineering, and Medicine, served as the review coordinator.

STAFF Julie Pavlin, Director; Ashley Bear, Director; Natacha Blain, Senior Board Director; Priyanka Nalamada, Program Officer; Laura DeStefano, Director of Strategic Communications & Engagement; Melissa Laitner, Senior Program Officer, Special Assistant to the President; Adaeze Okoroajuzie, Senior Program Assistant; Kavita Shah Arora, National Academy of Medicine Fellow.

SPONSOR This workshop was supported by the National Academy of Sciences W. K. Kellogg Foundation Fund.

For additional information regarding the workshop, visit http://www.nationalacademies.org/our-work/standing-committee-on-reproductive-health-equity-and-society.

SUGGESTED CITATION National Academies of Sciences, Engineering, and Medicine. 2023. Challenges in the provision of lifesaving care for pregnant patients following the overturn of Roe v. Wade: Proceedings of a workshop—in brief. Washington, DC: The National Academies Press. https://doi.org/10.17226/27242.

Health and Medicine Division Copyright 2023 by the National Academy of Sciences. All rights reserved.