Most physicians unclear on 'life-threatening emergencies' under abortion bans: survey

Most doctors are confused about what constitutes a "life-saving emergency" to overrule state abortion bans, a survey found.

Of the more than 240 U.S. physicians surveyed by Sermo, 70% indicated they were unclear about what constitutes a “life-threatening emergency” allowing a physician to legally perform an abortion in states where the procedure is otherwise banned. The poll released on the physicians’ network asked questions regarding the language of abortion bans and the legal implications of what is considered vague language. Currently, 12 states have banned the procedure entirely, with Georgia and Ohio instituting six-week bans.

“I’m not surprised; what’s surprising to me is that people who are not in healthcare don’t see this; they don’t realize the implications,” said Sara Farag, M.D., member of the Sermo medical advisory board. “When you put a fine for a healthcare worker to perform an illegal abortion or be imprisoned for it, very few healthcare workers are going to be willing to take that risk. A life-threatening physical condition or an emergency situation is so hard to define, that’s where the art of medicine comes in. It’s going to be difficult for people to draw a hard line between what is and is not a life-threatening emergency.”

In the gray area, 79% of physicians are concerned that doctors are being asked to wait until the “very last minute when it’s clear a patient will die” before performing an abortion. Alarmingly, over two-thirds of those surveyed said they expect more maternal deaths in states where abortion is banned.

In a specialty that Farag says is already prone to malpractice lawsuits, 76% of respondents voiced concern that it is a felony for physicians and clinics to provide or attempt an abortion in a state where it is banned. This legal threat has influenced physicians’ decision-making with 89% of respondents indicating that medical professionals will make decisions based on legal safety.


Defining medical emergencies
 

Under chapter 171 of the Texas state Health and Safety Code, “medical emergency” is defined as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed”—a broad, unqualifiable definition, according to Farag.

“It’s intentionally vague, but the obscurity is going to make people get into trouble,” Farag said. “You can take it one way; you can also take it the other way and in court you can also do the same thing.”

Some conditions are more straightforward such as pulmonary hypertension, which carries a 50% chance of mortality, or tricuspid valve regurgitation, which is considered very dangerous during pregnancy, according to Farag.

But many OB-GYN cases enter a gray area. In 8% to 10% of pregnancies, a patient experiences a premature rupture of the amniotic membrane at a stage where the fetus is not viable, but the patient is not hemorrhaging blood. In states like Colorado, the rupture can be addressed immediately before it becomes life-threatening. In Oklahoma and Texas, either the patient must wait for sepsis to set in or find their way across state lines. Even if sepsis does not set in, Farag said the fetus also has a significant chance of a malformation.

Farag gave other examples that give physicians pause: a patient who nearly lost their life to hemorrhage during the delivery of a previous pregnancy becomes pregnant again or someone who possesses many indicators of maternal mortality such as being Black, obese and diagnosed with chronic hypertension begins experiencing an otherwise less concerning complication.

“That’s a ticking time bomb for something bad to happen,” Farag said. “Those are the sort of gray-ish zones where we can’t draw a line. As OB-GYNs we just know this is not a good situation. Something might not be life-threatening right now, but it could be downstream.”


Delineating duty of care
 

As state laws continue to shake out, there are some federal laws that take precedence such as the Emergency Medical Treatment and Labor Act (EMTALA). The 1986 law prevents Medicaid-participating hospitals with emergency departments from refusing to treat patients who arrive in emergency situations.

Under EMTALA, a patient who comes to an ED must be screened, “emergency medical conditions” addressed and stabilized. Following the Dobbs decision, the U.S. Department of Health and Human Services (HHS) issued a letter clarifying the obligation of healthcare providers.

“As frontline health care providers, the federal EMTALA statute protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice,” wrote the secretary of HHS, Xavier Becerra, in the letter.

Becerra went on to clarify what constituted “emergency medical conditions” including “ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.” Possible stabilizing treatment listed included abortion, removal of one or both fallopian tubes, anti-hypertensive therapy, methotrexate therapy, etc., “irrespective of any state laws.”

The state of Texas sued Becerra and HHS this summer, contending that EMTALA “does not authorize—and has never authorized—the federal government to compel healthcare providers to perform abortions.” Federal judge James Wesley Hendrix entered a preliminary injunction blocking the enforcement of the federal law. Hendrix wrote in the order that the guidance went “well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict.”

In a separate case, the federal government sued the state of Idaho, asserting that the state’s law stymies providers from performing abortions even with the goal of stabilizing an emergency medical condition. Federal Judge B. Lynn Winmill contended that a physician is allowed a defense if the abortion was necessary to avoid the death of the pregnant person but not in avoidance of serious harm.

“Granted, the Idaho statute offers the physician the cold comfort of a narrow affirmative defense to avoid conviction,” wrote Winmill in his order. “But only if she convinces a jury that, in her good faith medical judgment, performing the abortion was ‘necessary to prevent the death of the pregnant woman’ can she possibly avoid conviction. Even then, there is no certainty a jury will acquit. And the physician cannot enjoy the benefit of this affirmative defense if she performed the abortion merely to prevent serious harm to the patient, rather than to save her life.”

Neither decision has yet to be appealed. HHS has threatened to sue other states with laws at odds with EMTALA. Further cases are expected to clarify demands of physicians state-by-state. Farag is concerned as to what will happen in the interim.

“One of the key goals of the World Health Organization or the American College of Obstetricians and Gynecologists or the American Medical Association is decreasing maternal mortality,” Farag said. “If you had the chance to allow this patient to continue their life and feel safe, why not take it? I think what we’re going to see is an increase in maternal mortality. It’s going to increase unsafe abortions.”