In the wake of the U.S. Supreme Court decision overturning Roe v. Wade, a new study suggests dangerous medical outcomes under Texas' six-week abortion ban could become the norm in the nearly half of states in the nation expected to ban the procedure.
Before the high court's monumental decision throwing out a nearly 50-year-old abortion-rights precedent, Texas last year implemented Senate Bill 8. The state's so-called "heartbeat law" effectively banned all abortions after fetal cardiac activity can be detected — around six weeks.
A recent New England Journal of Medicine study found that Texas' law endangered the lives of patients with high-risk pregnancies and created confusion for clinicians trying to provide for their care.
Even though the law included provisions allowing for medical emergencies, researchers found that some patients needed to be in danger of death before medical providers were willing to terminate the pregnancies putting their lives at risk.
"With an increasingly narrow exemption and medical professionals learning about them as they go, [SB 8] increased a climate of fear in the state," said Whitney Arey, the paper's lead author and a researcher with the Texas Policy Evaluation Project, which studies reproductive health policies.
"We saw that Texas, unfortunately, gave a preview of what a lot of states will likely see with increasingly narrow exemptions for when abortions are allowed."
Under SB 8, Texas patients with complicated pregnancies or preexisting conditions are being forced to delay abortions until their medical conditions become life threatening or until the fetus' cardiac activity can no longer be detected, Arey and her colleagues found in interviews with 25 clinicians and 20 patients carrying high-risk pregnancies.
That raises concerns that SB 8 and Texas' so-called trigger law, which bans almost all abortions and goes into effect on Aug. 25, could increase maternal death rates in the state, which already exceeds the national average, according to federal data. Even before the trigger law goes into effect, abortion is illegal in the state due to a 1925 law Texas Attorney General Ken Paxton resurrected after the Supreme Court decision.
"People have to be on death's door to qualify for maternal exemptions to SB 8," one maternal fetal medicine specialist told researchers for the NEJM study.
Vague exemption
Last month, the Biden administration issued guidance advising doctors they're protected under federal law if they terminate a pregnancy as part of an emergency treatment. The order even threatens to defund hospitals that refuse to perform those procedures.
However, Texas AG Paxton almost immediately sued to challenge the guidance in federal court. Paxton argues in his legal brief that the White House's guidance interferes with the state's "sovereign interest in the power to create and enforce a legal code."
Abortion rights advocates also caution that the White House guidance needs strong enforcement if it's to be meaningful, and it's too early to know how aggressively the feds plan to pursue such action.
Further, study author Arey said the vague language of SB 8 led medical institutions and clinicians to have widely varying interpretations of what is allowable under the law's medical exemption.
"It affected continuity of patient care because some clinicians were uncertain if they could counsel patients about abortion or if they could refer patients elsewhere or if they could transfer their medical records out of state," she said. "Or if they were still doing this, some people acknowledged that this still might put them at risk for being viewed as aiding and abetting under SB 8. These different interpretations of the laws are going to create uneven care as people interpret them differently in different places."
Concerns about the nebulous language allowing for medical exemptions have also surrounded Indiana's newly passed abortion law, again suggesting that the Texas research hints at problems that soon will come to patients in other states.
Doctors have complained about the confusion they face as they try to care for patients facing conditions such as incomplete miscarriages, premature membrane ruptures and ectopic pregnancies, in which a fetus develops outside of the uterus.
"It's terrible," Dr. Alan Peaceman, a professor of maternal-fetal medicine at Northwestern University's Feinberg School of Medicine, told the Texas Tribune earlier this month. "The care providers are treading on eggshells. They don't want to get sucked into a legal morass. And so, they don't even know what the rules are."
Chilling effect
Adding to the experts' concern, Texas' SB 8 — which offers no exception for rape, incest or severe fetal abnormality — allows virtually anyone to sue an abortion provider or someone else who helps a person obtain an abortion deemed illegal. The potential financial damages start at $10,000, and clinicians also stand to lose their licenses.
That provision has a chilling effect that's pressuring medical professionals not to perform the procedure or even discuss it with patients — even when dealing with a high-risk pregnancy, according to the study.
After a 39-year-old woman in the NEJM study discovered that her fetus had spina bifida and another severe abnormality, her doctor refused to even discuss abortion options, according to the paper.
"When you already have received news like that and can barely function, the thought of having to do your own investigating to determine where to get this medical care, to arrange going out of state feels additionally overwhelming," she told researchers.
The chilling effect of SB 8 and the state's trigger ban are likely to have the most profound effect on people of color and those with limited incomes, Arey argues. With Texas doctors unwilling or unable to take the risk of performing medically necessary abortions, many patients will have no choice but to seek one in a state such as Colorado or New Mexico, which haven't banned the procedure. Traveling that distance is an expensive proposition, especially for the uninsured and those struggling with poverty.
Rural residents are also likely to find it harder to obtain care if they develop risky pregnancies, according to Arey. Doctors who perform abortions are already considering relocating out of state, according to the study, and those moves are likely to diminish access in rural areas where options are already limited.
Mental and emotional toll
The study also points out that out-of-state travel can exacerbate problems for women carrying risky pregnancies. One woman who suffered a membrane rupture during her pregnancy told researchers that she was informed she couldn't get an abortion in Texas but was also warned that leaving the state put her at further risk.
"I knew how dangerous it was for me to get on a plane and go get an abortion, but I knew that it was still the safer option for me than sitting in Texas and waiting, and I could potentially get sicker," she said.
The woman also shared her obstetrician's travel advice: "If you labor on the plane, leave the placenta inside of you. You're going to have to deal with a 19-week fetus outside of your body until you land."
Beyond the medical risks SB 8 created for pregnant women, Arey said the study also illustrates the mental and emotional health toll of the Texas law — a toll that's liable to be repeated as other state legislators implement their own abortion bans.
"The patients talked about feeling hurt and confused, overwhelmed when they realized that they had to figure out on their own where to go and get care," she said. "And, so, some people who don't have the resources aren't going to be able to leave Texas, so they're going to have to continue pregnancies until they develop life-threatening complications in order to receive care for these conditions."
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