Abortion Laws Stand Between Pregnant Texans and the Care They Need
Doctors are left to guess at whether helping their patients will land them in prison.
A version of this story ran in the March / April 2023 issue.
This story is part of a continuing series on the dismantling of women’s healthcare in Texas.
Doctors have a code, a set of principles meant to guide their practice: Give care. Act justly. Respect patients. Do no harm. But for Texas doctors, especially obstetrician-gynecologists, following those seemingly straightforward principles has become a legal and ethical minefield.
Physicians are finding themselves torn between providing medically appropriate care and staying in compliance with the state’s draconian anti-abortion laws. The stakes couldn’t be higher: risking major fines and up to life in prison for doctors on one side, and on the other, often putting women’s lives at risk because of delays in care or refusals to provide formerly routine procedures. As a result, medical decisions regarding pregnancy complications now involve a host of new stakeholders—hospital administrators and lawyers—who may put questions of institutional risk above patient well-being.
Dr. Shanna Combs, an OB-GYN, waded into that minefield a few months ago while on her shift at a maternity care hospital in Fort Worth. Her patient, 19 weeks along in her first pregnancy, was in bad shape. Her water had broken prematurely, and she’d gone into labor much too early. By the time Combs got to her, she’d been laboring for 48 hours. Her child had a heartbeat but was several weeks away from being strong enough to survive outside the womb.
“Previously, we would call this an inevitable miscarriage or inevitable pregnancy loss and offer the patient options to help the process along in order to minimize risk of infection for the mother,” Combs said. Those options include counsel for pregnancy termination through a surgical procedure as well as the prescription of Misoprostol, a labor-inducing medication that is also used as an abortion medication in the first trimester.
But now, “Basically when the mother’s water breaks before viability, if there’s a heartbeat, you’re not allowed to do anything,” Combs explained. She could only coach her patient—emotionally distraught and physically in pain—through another 12 hours of labor to deliver a baby that couldn’t and didn’t survive.
“She really had to suffer,” Combs said. Unsurprisingly, the woman developed a serious infection that kept her in the hospital for another day.
For many expectant mothers, the state’s abortion laws have turned what is already a devastating reality—the loss of a wanted pregnancy—into an even more excruciating and sometimes life-threatening process. The laws have not only prohibited access to elective pregnancy termination, but they’ve also obstructed the path for timely and medically appropriate care for many Texans experiencing pregnancy complications.
Combs and other doctors said they are now forced to provide a lower quality of medical care to patients. She and her colleagues are left with “a lot of anger and frustration, and feeling like patients are not able to get the care that they deserve.”
Bhavik Kumar, who practices family medicine and is a former abortion provider, is facing similar dilemmas in Houston. “We’re now bound and gagged from actually doing what we are trained to do,” Kumar said. “The ethics and the morality of that are just absurd. There are no ethics when we have to abide by a law that is in opposition to everything we know, all of our training, all of our understanding about actually taking care of patients and providing care.”
Although treatment for pregnancy complications and abortion access might be perceived as entirely different things, medically speaking they’re not. Doctors often treat patients experiencing pregnancy loss by using the same tools and procedures that they would in an elective abortion: by prescribing labor-inducing medication or performing a dilation and curettage or evacuation (D&C or D&E) to remove remaining pregnancy tissue.
Under Texas’ abortion ban, it’s this type of standard of care treatment for pregnancy loss and other pregnancy complications that has fallen under scrutiny. The law provides an exception, permitting abortions when a patient faces “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” But the vague language paired with a hefty criminal penalty for doctors—up to $100,000 in fines and life in prison—has had a chilling effect, leaving interpretations up to doctors and their lawyers and effectively discouraging the use of treatments that would once have been routine.
“When it became criminal, that’s where the line was drawn,” Combs said. “That’s your livelihood. That’s who you are as a person. You could go to jail. You will have to pay fines; you’ll lose your license. If you get out of jail, you won’t be able to practice medicine.”
Attorney Blake Rocap of Austin provides counsel to abortion advocacy groups around the state. “We’re in a situation where lawyers are also providing a lot of risk analysis,” he said. “They’re telling their clients, ‘We don’t really know how this is going to be interpreted, we think this [abortion] is protected activity, we think this qualifies as under the medical emergency exception, but no one knows for sure.’”
Rocap said such legal uncertainty discourages doctors from providing care. They know, he said, that “if they don’t do anything, they’re certainly going to be in compliance.”
In the months since the passage of the state’s trigger law, media reports have detailed stories of pregnant Texans denied miscarriage care, sent home to bleed in their bathtubs, offered care only after a patient has deteriorated enough to develop a life-threatening condition such as sepsis, or forced to cross state lines for treatment.
Even when a doctor believes an abortion is medically necessary to save a woman’s life, often the best advice that lawyers can offer to that doctor is that it “probably” is legal, Rocap said. “When the penalty is 20 years to life, ‘probably’ is not good enough.”
As a result, healthcare decisions now involve a host of new actors, and doctors are more likely these days to look for someone else to make the calls. “It’s created a complex situation,” said Dr. Charlie Brown of Austin, a specialist in maternal-fetal medicine and chair of the Texas chapter of the American College of Obstetricians and Gynecologists (ACOG). “You have hospital administrators, their attorneys, the physician, and the patient and her family, all involved in a conversation, which historically was a pretty straightforward conversation between the patient’s physician and herself and maybe her significant other. And that is just not very efficient when you’re dealing with an emergency. … This has just gotten out of hand.”
According to some experts, the legal fuzziness and steep criminal penalties have even inhibited patients’ ability to get medical advice.
Austin-based gynecologist Dr. Paul Murphree, who has never provided an elective abortion in his 40 years of practicing medicine, said the state’s abortion restrictions have hindered his ability to discuss all possible treatment options with his patients. And that’s affecting his patients’ ability—and their right—to make critical decisions about their health.
“Under previous guidelines, with Roe v. Wade in place, we were able to talk to patients and offer informed consent on pretty much anything having to do with reproduction,” Murphree said. Now, the law “is making some of the conversations with our patients very difficult.”
For example, what is legally permissible when a patient with a viable pregnancy receives a cancer diagnosis? Many forms of treatment, such as some chemotherapy in the first trimester, would mean the pregnancy would have to be terminated. Murphree said his lawyers have told him that discussion is now off the table. “It’s perilous to even discuss that as an option with patients,” said Murphree. With just that conversation, he said, doctors “place our license and our life in jeopardy.”
But women’s health advocates stress that providing this subpar standard of care fundamentally undermines doctors’ professional code of ethics.
Kumar, the Houston physician, said he’s begun advising patients to leave the state to get the care they need. “I never imagined that I would say to any patient, ‘You’re going have to go somewhere else unless you’re really, really sick,’” said Kumar. “That’s not ethical, it’s not moral, it’s not right. It doesn’t feel humane to treat another person that way.”
Lisa Campo-Engelstein, director of the Institute for Bioethics and Health Humanities at the University of Texas–Medical Branch (UTMB), provides counsel to doctors as a member of her hospital’s ethics committee. She said the situation is causing “moral distress” for doctors. “Because now they have to sit there and think, ‘Well, what am I going to do in the case that someone comes in who needs an abortion? Do I do it? Do I not?’”
Once-routine cases are now coming before medical ethicists like Campo-Engelstein, delaying essential care. “Before, if someone needed a [medically necessary] abortion, a doctor would just provide it; we never heard about it,” she said. “But now, with routine cases that are not ethical issues, doctors feel like they need to check all the boxes to make sure that they are not going to get sued or lose their license.”
If a doctor comes to them with a case in which a woman is going to die if she doesn’t get an abortion, “This is not an ethical decision,” Campo-Engelstein said. But “Yes, you have our stamp of approval, if that’s what you’re looking for.”
In Texas now, ethical and legal clarity aren’t the same thing, said Claire Horner, who directs the ethics consultation service for Baylor St. Luke’s Medical Center in Houston. “Does this abortion meet the legal criteria? That’s not an ethics question. That’s a legal question,” she said. Doctors are now using the ethics service to consult on what she considers to be straightforward pregnancy complications, Horner said.
In some cases, she said, doctors feel that under the law, they “have to wait and see if the worst-case scenario happens or … wait to see if things get worse” before they can act. “Nobody’s really sure where the line is,” Horner said. “What does it mean to be ‘lifesaving?’ What does it mean to be ‘a medical emergency?’ And so they’re saying, ‘Wait a minute, I need to find out if I’m allowed to do this legally. I need to go and get counsel on this.’ And that can delay care.”
Doctors stress that delaying care means women suffer longer and face a higher risk of death.
“Let’s be honest—she could get infected in the process,” said Combs, the Fort Worth doctor. “She could hemorrhage in the process. She could lose her uterus in the process. She could lose her life.”
The preamble to the American Medical Association’s (AMA) code of ethics advises doctors that, in some cases, a law “mandates conduct that is ethically unacceptable.” If physicians believe a law violates ethical values or is unjust, the code continues, “They should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal duties.”
In November 2022, the AMA updated its principles of medical ethics regarding abortion, clarifying that, “caught between good medicine and bad law,” doctors must feel empowered to provide medically appropriate care to their patients, even if doing so would require breaking the law.
Even if a doctor is willing to risk prosecution to provide appropriate care, however, that doesn’t solve the ethical dilemmas in Texas. “Now they’re thinking: Is it ethical for a doctor to provide a poorer standard of care to preserve themselves, to make sure that they are around to help future patients? To make sure they’re not charged with a felony for something that a legislative or political body decided was now being taken off the table?” said Dr. Colleen Denny, an OB-GYN in New York and a member of the American College of Obstetricians and Gynecologists’ ethics committee. “And that’s a really hard question.”
In a state where doctors are already a scarce resource in many regions, Texas physicians say they’re worried about what might happen to their other patients if they go to jail or lose their license. According to data from the Texas Department of State Health Services, half of all counties in the state are without a single women’s health provider. And Texas leads the country in maternity ward closures.
“I wish I could provide the healthcare. I wish I could do right by every person who I see who needs care,” Kumar said, “but I can’t. I can’t go to jail. I can’t have my nurses and my techs and everyone I work with go to jail.”
Campo-Engelstein, who regularly advises doctors working at UTMB, said the seemingly unending ethical conflicts are further fatiguing an already strained healthcare field.
“Physician burnout is a serious thing and this is exacerbating that,” she said. The moral distress is real when physicians have to “consider turning away one patient with a hope of saving 10 others.” She said individual doctors shouldn’t be facing those kinds of decisions. “This is where, at a policy level, we should be stepping up,” she said.
Rocap, the Austin attorney, and other advocates are skeptical of the Texas Legislature’s willingness to remedy this problem of their own making. “If your policy goal is to prevent abortion no matter what, you’re opposed to clarification,” he said.
“They should pass a law that forbids legislators from participating in the practice of medicine,” said Brown, the ACOG chapter chair. “Don’t legislate medicine.”