A new reality for U.S. doctors as they navigate exceptions to shifting abortion laws

Physicians say it's not always clear when an intervention will be allowed under life-saving exceptions to abortion bans in U.S. states. One ob-gyn asked: “What does the risk of death have to be, and how imminent must it be?”

Experts say it’s not always clear precisely when and if an intervention is medically necessary

In 2012, Savita Halappanavar sought treatment at a hospital in Galway, Ireland; she was 17 weeks pregnant, in pain and miscarrying.

Her repeated requests for an abortion were ignored because of the presence of a fetal heartbeat, according to her husband. She died of septicemia — or blood poisoning by bacteria — 2½ days later.

Halappanavar's death is viewed as a pivotal moment in the abortion debate in Ireland, leading the country toward overturning its constitutional ban on abortion in a referendum six years later.

Pregnancy and the process of giving birth can be traumatic and carries inherent risks — everything from excessive bleeding to vaginal and other forms of tearing, cardiovascular problems and death.

The maternal mortality rate stands at eight per 100,000 in Canada, compared with 24 per 100,000 in the United States — a far higher mortality risk than that of a legal abortion procedure.

Doctors in the U.S. are now pointing to Halappanavar's death as an illustration of the thorny legal and ethical challenges ahead — as well as the potentially fatal consequences — following the overturning of Roe v. Wade.

According to Dr. Louise King, an expert in bioethics at Harvard Medical School, in many states, doctors will be left with the impossible task of trying to determine precisely when an intervention should be deemed medically necessary, as it was in the case of Halappanavar.

But if they act too quickly, she said, they could face the prospect of prosecution or fines under new or pending legislation, as roughly half of American states are expected to outlaw or severely limit abortion.

"It's complete absurdity, because it leaves [physicians] in these situations where they have no real choice," said King, who is also an obstetrician and gynecologist at Brigham and Women's Hospital in Boston.

"Broadly speaking, it removes an important option … from all persons who are pregnant in the United States, in states in which abortion is restricted."

When is an emergency an emergency?

In Missouri, for instance, there is an exception for a "medical emergency," while in Michigan, a law already in place only allows abortions "necessary to preserve the life" of a pregnant person. (That law is on hold pending a court injunction.)

Physicians say the specifics of these exceptions remain unclear.

Dr. Lisa Harris, an ob-gyn and associate chair at the University of Michigan, outlined her concerns in a widely circulated essay published in the New England Journal of Medicine earlier this year. It was then cited in the dissenting Supreme Court opinion on Dobbs v. Jackson Women's Health, the case that led to the overturning of Roe v. Wade.

"What does the risk of death have to be, and how imminent must it be?" she wrote.

Doctors have identified "countless" scenarios where these questions apply, Harris said, ranging from patients diagnosed with cancer during pregnancy to those with pulmonary hypertension, "for whom we cite a 30 to 50 per cent chance of dying with ongoing pregnancy."

One of the most cited examples is an ectopic pregnancy, when a fertilized egg implants outside the uterus. Ectopic pregnancies are not viable, and can be potentially fatal if the tissue where the egg grows to the point of rupture. But some U.S. lawmakers have argued they should not be exempt from abortion bans.

Research suggests the U.S. maternal mortality, already on the rise, will further increase now that Roe is overturned.

One study published last year estimated a nationwide ban on abortions in the U.S. would lead to a 21 per cent increase in deaths of pregnant people, and a 33 per cent increase in deaths among Black people in particular. The study did not include any possible increase in deaths from unsafe abortions.

Dr. Stephanie Mischell, a family physician in Dallas, Texas, said that prior to the overturning of Roe v. Wade, she was already forced to turn many patients away due to her state's restrictive laws.

The ruling will only make things worse, she said.

"The risk of mortality during the prenatal, labour, delivery and postpartum period is extremely high compared to people who are not pregnant," said Mischell, also a fellow with advocacy group Physicians for Reproductive Health. "Especially for Black pregnant people, we have a huge disparity there that is really exacerbated in states where abortion bans exist.

"Over and over and over again, we see that places where abortion is more restricted, maternal mortality is much higher."

Access still an issue in Canada, expert says

Dr. Lacey Harding, an ob-gyn in Toronto with expertise in non-viable pregnancies and late-term abortion, sympathizes with her American colleagues.

In her experience, there are situations where a pregnancy can be "very dangerous and it could quickly get out of hand." Harding cited the example of a woman breaking her water at 14 weeks of pregnancy.

"Unfortunately, there is almost no way that is going to end up being a healthy baby, even in a premature context. So I sometimes counsel patients about stopping the pregnancy now, because sepsis is a very dangerous situation."

WATCH | This registered nurse says Canada should expand access to abortion:

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Harding also said issues with access to abortion remain in Canada, even though it's decriminalized and treated as a medical procedure.

She said she regularly sees patients who are several hours away by car, particularly those in need of a late-term abortion for medical reasons. More clinics and better training would help, she said.

"As the pregnancy goes on, things get a little bit more complicated," said Harding.

"Hospitals and other settings are just not willing or not set up to provide that kind of care. So it can definitely be a minefield to navigate, for sure, certainly in terms of medically necessary care later in pregnancy, at certain hospitals."


Benjamin Shingler


Benjamin Shingler is a reporter with CBC's investigative unit in Montreal. He previously worked at The Canadian Press, Al Jazeera America and the New Brunswick Telegraph-Journal. Email story ideas to benjamin.shingler@cbc.ca.

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