NRL News

Manufacturing a Medical Crisis of Pregnancy Emergencies

by | May 20, 2024

By Randall K. O’Bannon, Ph.D. NRL Director of Education & Research

Wherever there are states offering some real legal protections for unborn children, you’ve heard alarms sounded. A rash of stories have suddenly appeared about desperate women and anxious doctors fearful that, because of the law, they will be unable to treat their patients for miscarriages, ectopic pregnancies, or other medical conditions that may pose a serious threat to life and health.

It is vitally important to know that, for the most part, this is a  manufactured crisis. Activist doctors, already inclined to favor abortion, still incensed that the Supreme Court or anyone would dare to tell them when and where and upon whom they could perform an abortion, have sought and promoted cases that they thought could generate sympathy for their cause and undermine state protections for unborn children and their mothers.

It is not to say that emergency situations do not occur, or even that the cases brought forward by these doctors are not real or even heartbreaking. Though such situations are rare, they do occur.

But the idea that the law does not allow for abortion in these emergency situations–that these laws do not respect a physician’s considered medical judgment; that they pose a threat to a doctor’s professional reputation and the possibility of serious fines or jail time just doing his or her duty; or that it effectively puts a vulnerable woman’s health or life at risk–is absolutely false.

Those who make such claims and promote such stories are either unaware of the medical facts of the case, ignorant of the law, or simply trying to worry doctors, to frighten women, and stir up public opposition to laws or policies protecting unborn children.

Against that backdrop, consider a recent article making just such claims. It appeared in one of the country’s top medical journals and the response it generated from a better informed pro-life doctor and an attorney.

Ob-Gyn claims pro-life laws preventing pregnant women from receiving emergency treatment

In the March 2024 issue of Obstetrics & Gynecology, the official journal of the American College of Obstetricians and Gynecologist (ACOG) [1] appears a “clinical perspective” article by Steven Cherry titled “Abortion Trigger Laws Compared With the Emergency Medical Treatment and Labor Act.”

Cherry is an Ob-Gyn from Mechanicsburg, PA who is affiliated with the WellSpan York hospital and serves as the core faculty for residency program and Director of Laborist services there.

Cherry argues that when the Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization in 2022, it “reneged the Constitutional right to an abortion” and gave birth to laws which may prevent pregnant moms with emergency conditions from getting timely and essential medical care, even when those laws have a maternal life or health exceptions.

Because of the way these exceptions are written and interpreted, Cherry argues, physicians are “unclear how close to death or harm a pregnant patients must be before abortion is legally justified.”

Claiming these laws require that a risk be life-threatening or imminent, Cherry asserts that “Pregnant patients in Texas and Idaho must wait for their condition to deteriorate substantially before they can legally receive a medically indicated abortion.”

Cherry then summarizes news accounts from Oklahoma, Tennessee, and Florida where women with different conditions supposedly had to travel to neighboring states for abortions or had to undergo risky births because they were “denied pregnancy terminations” by doctors or hospitals fearful of running afoul of the law in their home states.

Much of Cherry’s piece is devoted to EMTALA, the Emergency Medical Treatment and Labor Act. This Act, passed in 1986, requires hospital ERs to treat patients with emergency conditions regardless of ability to pay.

It is Cherry’s contention that pro-life laws, even when they have exceptions, set up a moral and legal conflict for doctors with pregnant patients in life-threatening circumstances, with the state law forbidding their participation in an emergency abortion while the federal law mandates it.

If medical staff chooses to obey the state rather than the federal law, Cherry contends that they may end up refusing to perform or participate in an abortion that could save the woman’s life. But if they follow EMTALA and perform the abortion, members of the medical team could be charged with a felony (and thus risk jail time).

Last month, the Biden administration argued in the Supreme Court’s case of Idaho v. United States case that EMTALA requires that hospitals perform emergency abortions even in states that forbid them. (Some of the dispute in that case is over whether states actually forbid abortions in such circumstances.)  The outcome of that case will probably come this summer.

Cherry says that if a medical staff, fearful of the state law, is unwilling to participate in an abortion, the hospital is obligated to transfer the patient to a facility willing and able to perform the abortion, even it that means sending the patient to another state. He is particularly concerned that some states (he mentions Alabama in particular) may try to pass laws forbidding transfers. Cherry hopes that the Supreme Court would strike down such laws.

Though ostensibly about the obligations of doctors under EMTALA, a clear theme of the piece is the contention that pro-life laws protecting the unborn are putting the lives of pregnant women at risk, even when there are exceptions written into the law for the life or health of the mother.

Doctors and attorneys who know the law and the medical issues involved say something quite different.

Unnecessary scare tactics on pregnancy emergencies confronted

Dr. Ingrid Skop is a board certified Ob-Gyn who has more practiced for more than thirty years in Texas, one of the states where Cherry says there are rules preventing women with pregnancy emergencies from getting abortions.

Mary Harned is an attorney who has served in multiple government positions, including investigative counsel for the Select Investigative Panel of the U.S. House Energy and Commerce Committee. Before that she served as a Counsel to the former U.S. Senator Jeff Sessions (R-AL) and the late Senators Tom Coburn (R-OK).

In a response that Obstetrics & Gynecology, ACOG’s medical journal, refused to publish, Dr. Skop and attorney Harned took apart claims made by Cherry in his March 2024 piece. Writing in Spring 2024 Issues in Law and Medicine [], Skop and Harned say that “No state has an abortion law that is a total ban on abortion” and that the exceptions there adequately allow for timely intervention in the case of a threat to the mother’s life.

Speaking more directly, the authors say that, contrary to Cherry’s assertions, “Texas law does not require an ‘imminent’ risk and allows a doctor to use his ‘reasonable medical judgment’ to determine if an abortion is necessary to prevent a ‘risk of maternal death.” And “Similarly, Idaho allows a doctor to use his ‘good faith medical judgment’ to determine when to intervene, without need for ‘immediacy’.”

Countering Cherry’s charge that the maternal health exception is unclear about how close to death a patient must be to allow intervention, Skop and Harned say “physicians should be reassured that they can make this determination based on their ‘reasonable medical judgment,’ a standard very common in the medical profession and used for cases involving medical malpractice litigation.”

Skop and Harned declare “no state ‘legal standard’ prevents doctors from saving the lives of pregnant women.”  Cases that Cherry brings up from popular media of women being denied necessary care for partial molar pregnancy (Oklahoma), caesarean scar ectopic pregnancy (Tennessee), and previable premature rupture of membranes at 15 weeks gestation (Florida) are undercut by “abundant evidence from the American College of Obstetricians and Gynecologists (ACOG) that intervention in these circumstances is supported because each of these tragic circumstances can pose a risk to a mother’s life.”

Skop and Harned go into detail regarding the laws of Texas and Idaho on which Cherry concentrates his complaint. Cherry claims that a patient must be near death to rely on the health exception. Skop and Harned say the Texas law is explicitly deferential to the treating physician. Refuting Cherry directly, they quote from relevant portion the Texas law:

In the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.   

“Risk,” not imminence, is the criteria, and the physician’s “reasonable medical judgment” is sufficient. Texas courts have ruled that the physician’s determination of risk is sufficient, that no court order is necessary. Skop and Harned point out that 71 abortions have been performed in Texas under the laws provisions, making the functionality of the law clear.

Cherry’s citation of the “imminence” or certainty of risk of death for the Idaho exception is likewise mistaken. Skop and Harned says that the relevant portion of Idaho’s law actually says the abortion prohibition does not apply if “the physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”

Note there is no statement about imminence or certainty in that statute. There is no list of symptoms or crises, like Cherry asserts, such as hemorrhage, infection, or sepsis that must be present or documented for the concerned physician to proceed.  Skop and Harned quote the Supreme Court of Idaho’s statement on the matter, saying that in relying on the “good faith medical judgment,”

… the statute does not require objective certainty, or a particular level of immediacy, before the abortion can be “necessary” to save the woman’s life. Instead, the statute uses broad language to allow for the “clinical judgment that physicians are routinely called upon to make for proper treatment of their patients.”

Cherry claims that the laws of Texas and Idaho (and presumably other states with similar exceptions) require that pregnant patients wait until their condition has sufficiently deteriorated before they can receive a “medically indicated abortion.” In fact, the laws and courts have indicated that a physician’s good faith judgment that a risk exists that could, in the future, pose a legitimate threat to a woman’s life offers safe and reliable grounds for the physician to act how, when and where he or she sees fit.

This is so, Skop and Harned grant, even if a different doctor would reach a different conclusion.

Cherry’s recommendation that doctors transfer patients facing pregnancy emergencies to hospitals in other states in order to comply with EMTALA is both unsafe and unnecessary, Skop and Harned claim. The transfer of a pregnant woman suffering a life-threatening emergency is “demonstrably poor quality care,” particularly when the law allows a doctor to take any emergency action he or she deems necessary.

There is no conflict between state laws and EMTALA, say Skop and Harned.

The bottom line for Skop and Harned is that, contrary to the line being pushed by Cherry, ACOG, and the popular press, “Pro-life laws are enacted to protect the lives of unborn children and their mothers, not to tie the hands of physicians caring for seriously ill pregnant women.”

Pro-Life laws have not created a health crisis

Medical emergencies in pregnancy are rare, but they do occur. But the idea that there is a sudden crisis brought on by pro-life laws that make no accommodation for these is a demonstrably false narrative, created by those who want a return to abortion on demand.

This betrays a political, not medical motivation. It is pro-lifers, not advocates of abortion, that show consistent and compassionate concern for the lives of everyone involved.

[1] Over the years, ACOG has been one of the most consistent advocates of abortion and opponents of pro-life legislation. See here

Categories: pregnancy