A few weeks after Texas adopted the most restrictive abortion law in the nation, Dr. Andrea Palmer delivered terrible news to a Fort Worth patient who was midway through her pregnancy.
The fetus had a rare neural tube defect. The brain would not develop, and the infant would die at birth or shortly afterward. Carrying the pregnancy to term would be emotionally grueling and would raise the mother’s risk of blood clots and severe postpartum bleeding, the doctor warned.
But the patient was past six weeks’ gestation, and under the new law, an abortion was not an option in Texas because the woman was not immediately facing a life-threatening medical crisis or risk of permanent disability.
“So we look at them like a ticking time bomb and wait for the complications to develop,” Palmer said of her patients.
In this case, the woman had the means to travel, and she obtained an abortion in another state, an option unavailable to many low-income and working-class women.
Texas’ new measure was intended to impose stringent limits on abortion. But it is also affecting women who have no desire for termination but are experiencing medically risky pregnancies. Many doctors say they are unable to discuss the procedure as an option until the patient’s condition deteriorates and her life is at risk.
Abortion is permitted in Texas after six weeks only when a woman is facing a life-threatening or disabling medical emergency linked to her pregnancy. The law makes no exceptions for nonviable pregnancies in which the fetus has no chance of survival.
The measure deputizes private citizens — even those with no connection to the patient, doctor or health center — to sue anyone who performs an abortion once cardiac activity can be detected in the embryo. This can occur as early as two weeks after a missed period, when most women do not yet know they are pregnant.
Anyone who “aids and abets” the procedure can also be sued, and the law promises plaintiffs $10,000 and legal fees if they win the lawsuit.
The Supreme Court is expected to rule soon on whether abortion providers and the Biden administration may challenge the law notwithstanding its novel structure. In September, the justices turned down an emergency request to block the law.
Many physicians say they cannot intervene in complex pregnancies that may not pose an immediate threat to the patient but can rapidly spin out of control. Some hesitate to counsel patients about the option of termination or refer them to doctors in other states, for fear their advice could be interpreted as aiding an abortion.
Supporters of the law say their goal is to save the life of every embryo, regardless of the circumstances of conception.
“We never advocate taking a life of an unborn child unless it is necessary to protect the life of a woman,” said Joe Pojman, executive director of the Texas Alliance for Life.
Even in cases of rape or incest, “we don’t advocate for taking the life of an unborn child for the crime of the father,” he said.
The law’s supporters say that it provides enough leeway for physicians to act if a mother’s life or bodily functions are compromised, and they insist those cases are rare.
Dr. Ingrid Skop, an obstetrician in San Antonio who belongs to the American Association of Pro-Life Obstetricians and Gynecologists, said that even a girl as young as 9 or 10, impregnated by a father or a brother, could carry a baby to term without health risks.
“If she is developed enough to be menstruating and become pregnant, and reached sexual maturity, she can safely give birth to a baby,” Skop said.
But studies show that pregnant teenagers are more prone than older women to developing a dangerous condition called preeclampsia, and they are more likely to have preterm deliveries, small babies and stillbirths. Very young rape victims tend to seek prenatal care late, and they are more likely to have small babies who score poorly on tests of heart rate and muscle tone given immediately after birth.
Regarding pregnancy-related complications for women of any age, Skop said, the new law allows doctors to act when necessary and to justify their treatments in court if they are sued.
“It is disingenuous to allege that this law prevents obstetricians from following the medical standard of care,” she said.
Many physicians disagree, saying the law can disrupt care for pregnant women who have underlying health problems that are not immediately life-threatening, such as pulmonary hypertension or certain types of cancer.
“It’s one of the most egregious invasions of the physician-patient relationship that we’ve ever seen,” said Dr. Rick Snyder, a cardiologist in Dallas who is chair of the board of trustees of the Texas Medical Association.
The law does not make an exception for pregnant women who learn that the fetus has chromosomal abnormalities or anomalies that will cause the baby to die soon after birth. Such testing is done late in pregnancy, beyond the six-week limit, noted Crescenda Uhles, a genetic counselor in Dallas.
“I have a code of ethics to uphold, and that is making sure I discuss with my patients all of their options, regardless of what is available in their area,” Uhles said. Depending on the medical circumstances, one of those options may be abortion.
The hospital where she works “pays me to have these conversations with patients, but there’s not necessarily any guarantee they would have my back should someone decide to list my name on a lawsuit,” she said.
The Texas law, also called Senate Bill 8, carves out an exception for termination in “a medical emergency,” defined in the state’s health code as “a life-threatening physical condition” caused or aggravated by pregnancy that “places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.”
But there is professional judgment in making these determinations, and some physicians in Texas fear these opinions will be second-guessed in a courtroom. “One person’s emergency may not be another person’s emergency,” said Dr. Robert Carpenter Jr., an obstetrician in Houston.
The new law does not apply to removing ectopic pregnancies that implant outside the uterus, which are not considered abortions under state law. But some health conditions can jeopardize a woman’s health in the long term but not necessarily constitute an immediate threat to her life.
Dr. John Thoppil, an obstetrician in Austin who is president of the Texas Association of Obstetricians and Gynecologists, said that shortly after the new law took effect in September, a patient who used an intrauterine device for birth control became pregnant.
An IUD can make menstruation irregular, and she did not realize she had conceived until after the six-week mark. The pregnancy made it impossible to remove the device, Thoppil said.
With it in place, his patient faces a pregnancy rife with potential medical problems. Yet under the new law, Thoppil felt he could not counsel her on terminating the pregnancy. “You can’t even mention what someone’s choices would be, because of fear that talking about options would be considered aiding and abetting someone getting an abortion,” he said.
Some supporters of the law say that it does not forbid a doctor to counsel a woman about abortion or refer her to an abortion provider outside Texas. But the language is ambiguous, and travel can be expensive and onerous for pregnant women, especially if they are unwell.
Pregnancies can be complicated by any number of medical conditions. The American College of Cardiology and the American Heart Association, for example, advise women with certain congenital heart conditions to avoid pregnancy altogether, as they are at higher risk of illness or death shortly after giving birth.
The associations say these women should be given the option of termination if they become pregnant. For doctors treating such patients, the Texas law “creates quite a conundrum,” Snyder said.
“If I offer the patient the standard of care, I could be sued for aiding and abetting,” he said. “If I don’t provide my patient the standard of care, which they are due, I could be sued.”
For example, in rare cases an infection can make the amniotic sac rupture before the fetus is viable. Initially, the patient may not be in danger, and under the law physicians may be prohibited from taking action, even though the baby will not survive.
But the woman’s condition can quickly deteriorate, which is why physicians often prefer to offer an abortion. “I have seen cases where the woman has gone from completely normal to septic shock in less than an hour,” Carpenter said. “If you don’t respond quickly enough, your patient expires.”
In Poland, protests over abortion laws erupted this year after a pregnant woman died of septic shock. Her water had broken midway through the pregnancy, but her doctors, fearing prosecution if they violated the abortion ban, did not begin treating her until the fetus’s heart stopped on its own.
A more common scenario also raises difficult questions, said Dr. Ghazaleh Moayedi, an obstetrician and gynecologist in Texas who provides abortions. Sometimes, she said, a woman has a spontaneous miscarriage and is heavily bleeding, but the fetus has not passed and cardiac activity can still be detected.
The only way to stop the heavy bleeding is to end the pregnancy and contract the uterus, Moayedi said. Time is of the essence. “Every OB-GYN has cared for someone who has died from a hemorrhage,” she said. “If someone is hemorrhaging while miscarrying, how long do I have to wait?”
Other complications that occur when a woman is carrying twins or multiples can be resolved by a “selective reduction,” or abortion, of one of the fetuses so that the other has a better chance to live. Not doing so can, in some circumstances, kill all of the fetuses. Selective reductions are forbidden under the new state law.
In other cases, a pregnant woman’s medical needs may conflict with those of her fetus.
Just a few months before the Texas Legislature passed the new law, Dr. Robert Gunby Jr., an obstetrician in Dallas, was caring for a pregnant newlywed who suddenly started losing weight. She was diagnosed with an aggressive lymphoma, a cancer of the immune system.
An oncologist urged the woman to start treatment immediately, but the chemotherapy regimen would have been toxic to the fetus.
“First she said, ‘I can’t, I want this baby so badly,’” Gunby recalled. “But it was the only choice they had to save this young woman.” She eventually agreed, and the treatment was begun as soon as an abortion was performed.
Palmer, the obstetrician in Fort Worth, said that one of her patients was trying to get pregnant after the new law went into effect, and she had consensual sex with her partner.
A few days later, she was raped. She took a pregnancy test soon after she missed her period and found out that she had conceived. But she did not know who the biological father was.
The earliest time that any genetic testing could be done would be at seven weeks, Palmer said, so the patient decided to terminate her pregnancy before the six-week mark, in Texas. She knew she did not have the flexibility to be able to travel out of state for an abortion later on.
Like other physicians, Palmer said she was uncertain whether counseling that patient about all of her options, including terminating the pregnancy outside Texas, would have been considered “aiding and abetting.”
“The law is murky, but here’s the bottom line,” she said. “I am still going to tell my patients the information they need.”