Point: Medical Emergencies in Pregnant Women Should Not Be Falsely Equated With Expanding Access to Elective or Induced Abortion

By Cortney S. Draper, MD

Misinformation about health care and abortion abounds in the media today. It would be reasonable to believe that physicians are better educated on these subjects than the average layperson in the United States. However, it was disappointing to read a recent article in ACEP Now entitled “Advocating for Patients,” which contained numerous inaccurate and false statements regarding current laws in America, as they pertain directly to patient care.

This article purported that the state of Idaho (and at least 14 other states) would not allow for appropriate emergency care of a spontaneous abortion (i.e., miscarriage), in a hypothetical patient with hemorrhagic shock. The authors claim that “abortion bans” such as Idaho’s would not allow for treatment of this patient, despite her nonviable pregnancy.

To start reviewing this topic, let us examine the definition of “abortion.” Per Idaho ID 18-604, “abortion means the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child.” It explicitly excludes “the removal of a dead unborn child” from its definition, or the removal of an ectopic or molar pregnancy.

These exclusions clearly contradict the article’s claim that Idaho’s law restricts the use of dilation and curettage (D and C) to treat a miscarriage.

My home state of South Carolina is similar. SC Section 44-41-610 defines “abortion” almost identically to Idaho, including the exclusion of “an action to remove a dead unborn child.”

So at least in these two states, the article is incorrect in asserting that this patient, suffering a miscarriage, would be legally restricted from receiving appropriate medical care.

A more difficult example would involve a patient with complications from an induced abortion, such as the much-cited case of Ms. Amber Thurman, who, according to news outlets, died days after taking abortion pills. Notably, she died on the operating table after waiting 20 hours in the ICU for a D and C to treat her diagnosis of sepsis and retained products of conception.

Many have wondered: Could she have survived if a D and C had been provided earlier?Why did her hospital wait so long? Was there any legitimate legal concern that performing a D and C could be considered illegal in Georgia?

Both Idaho and South Carolina clearly state that “abortion” does not include action to remove a dead unborn child, which means that Ms. Thurman could have been treated there without hesitation. Georgia’s law is a bit different. Although the state’s definition of “abortion” similarly allows for miscarriage management, the specific language excludes “removing a dead unborn child caused by spontaneous abortion.” Ms. Thurman’s physicians may have known that she was facing complications of an induced abortion, not miscarriage from a spontaneous abortion, and been hesitant to provide lifesaving medical care for her because of how this law is worded.

However, Georgia law defines abortion as an action with “purpose to terminate a pregnancy with knowledge that termination will cause the death of an unborn child.” By the time she presented to the emergency department, she was at least a few days post-ingestion of the abortion pill regimen. Treating her condition likely would not cause the death of her unborn child or even terminate her pregnancy. In addition, the Georgia law, like all U.S. state laws, clearly contains a “medical emergency” clause, requiring only that a physician determine, in reasonable medical judgment, that a medical emergency exists.

As physicians, we are responsible to advocate for our patients and their health. There is an obligation to understand the laws that directly affect our medical practice. The claim in the ACEP Now article that “pregnant people experiencing medical complications remain in a precarious position, as their doctors are kept in the dark about what the law requires,” indicates a lack of ownership over our medical practice on the part of physicians. This is shameful, and we physicians should hold ourselves accountable to be better prepared and educated in caring for our patients.

If your state’s laws are ambiguous or poorly worded, please get involved in improving them! Treatment of pregnant women with medical emergencies should not be falsely equated with the desire for expanding access to elective or induced abortion. This confusion of definitions is clearly contributing to preventable patient deaths. It is our responsibility as physicians to be leaders, providing accurate medical information and optimal treatment of our patients.

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Dr. Draper is an emergency medicine attending physician with Lowcountry Emergency Physicians in Charleston, S.C.

Counterpoint: Collateral Damage of Restrictive Laws Continues To Be the Death and Injury of Pregnant Patients

By Karen Hou Chung, MD; Neha Gupta, MD; Breanne Jacobs, MD; Dara Kass, MD; and Kimi Chernoby, MD, JD

Our recent ACEP Now article on attending a Supreme Court rally during EMTALA and abortion ban arguments prompted many responses. In her letter, Dr. Draper argues that abortion bans are clear and do not hinder the provision of standard medical care. This could not be further from the truth.

States with restrictive abortion bans are seeing an increase in maternal morbidity and mortality.¹ These laws, written by legislators with little or no physician input, are vaguely written, using non-medical terms such as “dead unborn baby” to describe exceptions. These poorly written laws are causing delays or denials of care and increasing pregnancy complications—even when indicated care would have been allowed by the letter of the law. Proponents claim that the exceptions typically contained within abortion bans are clear enough for effective care, but real-life outcomes tell a different story.

For example, “medical emergency” exceptions are often poorly defined, forcing doctors to interpret vague laws during urgent clinical situations. In Texas, Josseli Barnica presented to a hospital 17 weeks pregnant with a miscarriage in progress. Because of the state’s abortion ban, doctors waited 40 hours until fetal cardiac activity ceased before inducing a delivery. She died three days later from an infection, most likely caused by the prolonged time her cervix was dilated. In a state without an abortion ban, Barnica could have been offered an induction of labor or dilation and evacuation sooner, which could have saved her life.

Furthermore, many pregnancy situations, like preterm premature rupture of membranes (PPROM) before fetal viability, do not fit within the narrow exceptions defined by “medical emergency” exception laws. In these cases, terminating the pregnancy is often necessary to protect the patient’s health and future fertility, and waiting until there is no fetal cardiac activity only prolongs risk to the patient. Denying timely emergency abortion care, as was shown in the case of Mylissa Farmer, violates EMTALA; she was denied care in both Missouri and Kansas after experiencing PPROM at 18 weeks.

Dr. Draper, despite asserting legal clarity, spends much of her response discussing the case of Amber Thurman, a woman who died in Georgia from complications after using legally obtained abortion medication from another state. Georgia law permits treatment for spontaneous miscarriages but lacks clear guidance for induced cases, complicating decisions about treating retained products after an induced abortion. Dr. Draper herself acknowledges that ambiguity around the cause of Amber’s retained products of conception may have contributed to delays in her care and her death, yet she shifts responsibility to doctors to manage within these vague constraints. We wholeheartedly agree that it should be the physician’s responsibility to decide what is the safest and most effective medical treatment for his or her patients. However, this case, and many others, show that the laws as currently written are not providing physicians the needed
autonomy to make these critical and timely decisions to provide lifesaving care.

Dr. Draper concludes by suggesting that physicians should advocate for clearer laws if they find them ambiguous. We applaud Dr. Draper’s optimism that physician input would inspire lawmakers to clarify the life-threatening impacts of their laws, but in fact the real world has shown us the opposite. Take Zurawski v. State of Texas,² where women who were denied abortions despite medical necessity sought clarification on Texas’s “medical emergency” exception. They asked the State of Texas for clarification on the “medical emergency” exception, arguing that the laws contained conflicting language and nonmedical terminology, making it unclear when physicians are permitted to provide care. In their decision, the Texas Supreme Court failed to offer additional clarification on what care is permissible, despite physicians asking for it, which does not help improve care for women like Josseli Barnica.

The collateral damage of these restrictive laws continues to be the death and injury of pregnant patients and their babies. Dr. Draper and others argue that treating pregnancy emergencies shouldn’t be conflated with expanding access to elective abortion. We agree that this is not the forum to advocate for protecting or expanding abortion access in violation of state law. But to ignore the fact that our patients, and their families, are experiencing harm due to these bans seems to be both willfully ignorant and factually insincere. As physicians committed to saving lives, we hope to work together to protect pregnant people in our emergency departments, regardless of the post-Roe restrictions imposed by state governments.

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Dr. Chung is a PGY-4 resident in emergency medicine at George Washington University in Washington, D.C.

Dr. Gupta is a PGY-2 resident in emergency medicine at George Washington University in Washington, D.C.

Dr. Jacobs is assistant clinical professor of emergency medicine at the George Washington University School of Medicine. She is an ACEP Ethics Committee member.

Dr. Kass is an emergency physician in New York City and the clinical lead for Access Bridge.

Dr. Chernoby is an assistant clinical professor of emergency medicine at George Washington University in Washington, D.C., and a reproductive rights lawyer.

References

1. Nambiar A, Patel S, Santiago-Munoz P, et al. Maternal morbidity and fetal outcomes among pregnant women at 22 weeks‘ gestation or less with complications in 2 Texas hospitals after legislation on abortion. Am J Obstet Gynecol. 2022;227(4):648-650.e1.
2. State v. Zurawski, 690 S.W.3d 644 (Tex. 2024) Court: Supreme Court of Texas. Published May 31, 2024. Accessed November 12, 2024.