Ohio docs say new abortion law has them working against oaths to do no harm
A pregnant woman talking with a psychiatrist. Getty Images.
Warning: This story contains graphic descriptions of emergency pregnancy termination.
A little more than two months into enforcement of Ohio’s harsh abortion restrictions, doctors are describing scenes of almost unimaginable anguish — and increased risks to women and girls who become pregnant.
According to them, in all but the most dire medical emergencies, they and their patients have had to take up to 15 minutes with a bureaucratic process that some docs say is meant to shame women before allowing them to end pregnancies that pose a threat to their lives.
Other women have partially delivered fetuses too undeveloped to survive only to see the delivery stall. In that condition, with the fetus partly out, they also have had to sign paperwork — and then wait for 24 hours, or for the fetus’s heart to stop.
Women suffering other complications such as a detached umbilical cord have faced similar intrusions just after they were devastated to learn they would lose a child they dearly wanted. They, too, have had to wait a day or for fetal demise.
In one instance, that took 14 hours, a doctor said.
Still other women — shattered to learn that the baby they’re carrying lacks vital organs necessary for survival — are being told that in Ohio they have to carry that baby, possibly for months, only to see it be stillborn, or to watch it quickly die.
Ten weeks into enforcement of Ohio’s strict new abortion law, doctors say the problems it’s causing are ones they repeatedly warned Republicans lawmakers of before they passed and Gov. Mike DeWine signed it in 2019. Similar problems seem all but inevitable in states with similar laws such as Tennessee, which implemented its restrictions on Aug. 25,
Some Republican leaders — including Attorney General Dave Yost and U.S. Rep. Jim Jordan — raised doubts last month about the existence of a pregnant Ohio 10-year-old who was forced by the law to leave the state for an abortion. But as with that case, one Cleveland doctor who handles high-risk pregnancies last week said the scenarios listed above are all too real.
“Three of these things have happened to me in four days,” Tani Malhotra, a maternal fetal medicine doctor, said late last month.
Yost rushed to the courthouse to get an order to enforce the 2019 Ohio law, Senate Bill 23, almost immediately after the U.S. Supreme Court struck down Roe v Wade on June 24. The consequence was that provisions of a law passed at a time when no one knew if it would ever take effect suddenly were real.
Among them is a ban on almost all abortions after there’s detectable cardiac activity in the fetus. That’s about six weeks into a pregnancy — a point at which an estimated one-third of of women and girls don’t know they’re pregnant.
Now that predicted problems from the law are becoming reality, Malhotra doesn’t buy the idea that supporters of S.B. 23 didn’t intend them in the first place.
“Lawmakers didn’t go into this blindly,” she said. “Physicians provided testimony. We called their offices. We sat with legislators to help educate them and tell them why this is bad policy. The (American Medical Association) and the College of Obstetrics and Gynecology tried to explain to them why this is bad law. They were educated. They knew exactly what these consequences were going to be because we told them.”
S.B. 23 bans post-cardiac abortions without regard to whether the pregnancy is the result of rape or incest — or whether the victim is very young or intellectually disabled.
The law does, however, have some limited exceptions.
One is for a medical emergency, which is defined as “a condition that in the physician’s good-faith medical judgment, based upon the facts known to the physician at that time, so complicates the woman’s pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create.”
Another is for conditions that pose “serious risk of the substantial and irreversible impairment of a major bodily function.”
Those might sound straightforward to the politicians and lawyers who drafted S.B. 23. But the doctors who have to function under it say it’s not.
“Nobody has any real guidance because none of these laws have been tested in the courts and the framework by which they would have previously been assessed is no longer in play,” said Maria Phillis, an OB-GYN who also works in Northeast Ohio. “What falls under these exceptions is not totally clear.”
Phillis added, “The issue with these laws mostly is that every single (hospital) legal department may have a different interpretation of what is appropriate to do.”
Malhotra, who routinely deals with emergencies arising from high-risk pregnancies, said she’s been plagued by fears that what she sees as an emergency won’t be seen the same way by a prosecutor.
She described a recent patient with an “extraordinarily desired” pregnancy. But before the fetus was developed enough to live outside the womb, the mother developed a condition that was causing her to deteriorate rapidly.
“As it came to light that her life would be in jeopardy, we made the recommendation to terminate the pregnancy,” Malhotra said. “She broke down and said, ‘I don’t want to die.’
“Having a patient say that to you is devastating in and of itself. But as we made the decision to move forward with the termination — with the abortion — I thought, ‘I’m really worried about this patient. She’s incredibly sick, but did I do all the paperwork correctly? Did I sign all the forms that need to be signed? What kind of trouble am I going to get into if something untoward happens when the patient is already extremely unstable. It just adds an extra layer of stress to an already extremely stressful situation.”
Malhotra said she later felt terribly about fretting over her potential legal jeopardy while caring for a patient who was in such trouble.
But her concerns seem justified. Violations of S.B. 23 can result in a felony charge, civil action, and the loss of a medical license. As Dr. Phillis said, doctors are balancing decisions about how to treat individual patients with concerns that the consequences will prevent them from treating any others.
DeWine Press Secretary Dan Tierney said the governor remains satisfied that the law’s protections of mothers’ health are adequate.
“In general, Governor DeWine believes Ohio law has strong protections to ensure we protect the lives of pregnant women who experience pregnancy complications that endanger the life of the mother,” Tierney said in an email. “The law lists some specific conditions, but is broad enough to cover other non-specified conditions that meet the definitions under law and allow for doctors to provide a strong standard of care.”
Tierney noted some specific conditions that are covered by the law. But doctors said that they and their hospitals’ lawyers are left to figure out the rest.
When it comes to complying with the law, the paperwork and other bureaucratic requirements seem cumbersome. Only four paragraphs into S.B. 23’s text is the sentence, “Except when there is a medical emergency or medical necessity, an abortion shall be performed or induced only if all of the following conditions are satisfied:”
What follows are 577 words describing all the things doctors have to do at least 24 hours before terminating a pregnancy. They include telling the patient the risks of having an abortion or of carrying the fetus to term and telling the patient the likely gestational age of the fetus.
The law makes exceptions for medical emergencies, but caregivers say they can’t be sure.
“Obstetrics is minute-to-minute and even second-to-second even on a routine basis,” said Jason Sayat, a Columbus-area OB-GYN, describing the ambiguities S.B. 23 can’t take into account even as its paperwork and other requirements disrupts and slows that care.
In an emergency, doctors have to decide whether the situation is emergent enough to perform an abortion without the 24-hour waiting period and even then they try to do the paperwork if they think there’s time.
Malhotra, who handles the diciest cases, says that in them, her first step is to call the lawyers and discuss her plan, a process that typically takes three to five minutes.
“The paperwork on the other hand — takes about 10 to 15 minutes to review with the patient,” she said. “In an absolute emergency, we may forgo the paperwork and plan to fill it out after the procedure. However, I think most of us will be fearing for our license and wellbeing in those situations.”
Even if an abortion is medically necessary, S.B. 23 requires doctors to provide reading materials that might seem cruel to a woman who has just learned that the pregnancy she so badly wanted can’t be successful.
They must “inform the pregnant woman about family planning information, of publicly funded agencies that are available to assist in family planning, and of public and private agencies and services that are available to assist her through the pregnancy, upon childbirth, and while the child is dependent, including, but not limited to, adoption agencies,” the law says.
Malhotra described what happens with one kind of complication that triggers the 24-hour protocol and the paperwork that brings.
“If the labor stalls out, but some parts of the fetus have already delivered, then in order to assist (the delivery) we would have to give medications,” she said. “If she is stable then we would have 24 hours to wait and wouldn’t augment (the delivery) till after 24 hours.”
In another recent case, the umbilical cord of one of Malhotra’s patients detached from a fetus that was too young to survive, she said. The patient was stable, so she had to do the paperwork — and wait.
“That fetus demised 14 hours later,” Malhotra said.
It’s in situations like those that patients have to do things like initial whether they want to hear the fetus’s heartbeat, and they have to receive a brochure detailing options for adoption.
“This is usually so hard because the patient is distraught by everything that is going on,” Malhotra said. “She doesn’t want an abortion and yet we are signing these abortion papers with her while also telling her it is inevitable.”
Ultimately, all the paperwork has the effect of shaming women who must end their pregnancies to protect themselves, Malhotra said.
“These are dire pregnancies,” she said. The mothers “are so devastated as it is. And we are just re-traumatizing them over and over again. And it’s heartbreaking to watch them already going through the movements of accepting the loss that they’re about to have and then we come in and say ‘Sign these papers’ so we can add insult to injury.”
Then there are women who have been diagnosed with severe fetal anomalies.
In some cases, the anomaly is so severe that the baby can’t survive. Under Ohio’s new abortion law, however, if fetal cardiac activity is detected, the woman must carry it to term.
Time Magazine this week profiled a 34-year-old Ohio woman who was whipsawed by the changing legal landscape in early August. The fetus was unlikely to survive, her doctor told her, and the pregnancy posed risks to her, including from blood clots, the story said.
The doctor recommended going to Michigan for an abortion, but it initially was canceled as hospital lawyers there tried to navigate legal developments. It was later rescheduled.
Phillis, the Northeast Ohio OB-GYN, said any pregnancy is risky, so it can make little medical sense to require a woman to carry one to term if the baby has no chance of survival.
“Carrying a pregnancy to term is always more risky — 14 times more risky actually — than doing an abortion procedure,” she said. “That doesn’t mean you’re going to have your life at risk, but it’s certainly more risky than if you have a procedure done.”
Malhotra said it’s just cruel to make women walk around for months with pregnancies that can’t succeed.
“They’re carrying a pregnancy to term only to be able to bury it,” she said. “Meanwhile, while you’re pregnant, you’ll be retraumatized every time anyone comes wanting to rub your belly, or wanting to ask you when you’re due, what you’re doing, what’s the name. Everywhere you go, pregnant people get asked (those things) all the time.
“Every time (those women) have to say, ‘Oh, it’s going to die.’ That is such a personal, private thing that they shouldn’t have to share if they don’t want to. But now they’re forced to.”
Malhotra said S.B. 23 not only increases risks for women in that situation. It also increases them by forcing bureaucratic slowdowns when health can collapse in an instant. Those new risks and the legal peril the law exposes her to have her considering her options.
“I don’t know how I’m handling it, to be honest with you,” Malhotra said. “I’m emotionally and physically exhausted. And at this point (I’m) strongly considering leaving the state. I got into medicine wanting to help patients… and do no harm.”
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