Legislative alchemy and abortion: How the fall of Roe v. Wade will degrade science-based medicine

I had another topic all teed up for today. It was yet another dubious study of COVID-19 mRNA vaccines that’s been going round the antivaccine misinformationsphere, notable not so much for anything other than that a rather famous and well-respected statistician (one whom I have personally cited before) signed on. If it continues to gain traction, there is time to come back to that study, either here or at my not-so-super-secret other blog. Unfortunately, something more urgent arose. On Friday, the US Supreme Court released its decision on Dobbs v. Jackson Women’s Health Organization, not only upholding Mississippi’s 15-week abortion ban but also ruling that there is no Constitutional right to an abortion, basically striking down the 49 year old decision that had ruled that there was such a right. While much ink, both print and digital, has been expended already on this monumental shift in US law and women’s rights, I’m going to look at it from the perspective of a longstanding topic on this blog: Law vs. science-based medicine, a topic that our recently retired contributor and legal expert Jann Bellamy used to refer to as “legislative alchemy“. In her honor, I was tempted to refer to this decision as “judicial alchemy”, but in reality what this decision unleashed even before it was announced was legislative alchemy in a huge number of states.

It’s no secret that I was raised Catholic and as a result was taught throughout my grade school and high school education (eight and a half out of thirteen years of which, counting kindergarten, were in Catholic schools, including an all-boys Catholic high school) that abortion is an absolute evil. I even believed it until well into my early adulthood. Medical school, however, coupled with my gradual drift away from religion, led me to appreciate that abortion is a necessary and integral part of reproductive health care. Although this post is a typical length for me, it’s far from an exhaustive discussion. In the spirit of full disclosure and so that no one tries to accuse me of hiding an agenda (although I’m sure someone will anyway), I will state my bias from the beginning, even though this post will not be primarily invoking arguments based on rights and I will try to stick mostly to SBM. Consistent with Roe v. Wade, women should—but no longer do—have the right to control their bodies. Leaving aside arguments of rights and when a fetus should be considered a “person”, however, I am struck by just how much the arguments of the anti-Roe forces resemble those that we at SBM have been deconstructing for nearly 15 years in their appeals to bad science and pseudoscience.

The current frenzy of abortion bans—and, make no mistake, it is a frenzy—being considered in various states represent an assault on science-based medicine every bit as non-evidence-based as bills to license naturopaths. In the very best case, these laws will make practicing science-based medicine much more difficult (and not just in reproductive health care) but in some cases impossible, forcing doctors and their patients into choices that they should never be forced to make. Many of these new laws are based on the idea that human life begins at conception, which means that embryos are human lives and that fetuses are legal persons, with all the rights of persons under the law, to the great detriment of the pregnant. (Indeed, if it becomes law that embryos have legal personhood, one can only imagine the effect that it will have on in vitro fertilization, which often involves the generation of multiple embryos, some of which end up being discarded. What will become of the millions of unused embryos sitting in liquid nitrogen tanks in fertility clinics across the US?)

In this post, I will attempt to discuss some of the outcomes that we are likely to see and that OB/GYNs are dreading. Make no mistake either, the effects are likely to go beyond the realm of reproductive health, as I will also discuss.

Think about it this way. Ideologues have long pressured legislatures to foist on doctors types of care that are not based in science, to legalize outright quackery, to require insurance companies and government payors to cover quackery, or to outlaw science-based standards of care based on their ideology. More recently, laws have been passed to make it easier for quacks to prescribe ineffective treatments for COVID-19 like ivermectin and to ban public health interventions against the disease. Abortion bans as draconian as the ones spreading throughout the country as a result of the fall of Roe v. Wade are no different in terms of ideology trumping science and evidence. As I contemplated what to write (or even whether to write) about the fall of Roe v. Wade and what it means for SBM, I came to the conclusion that it is useful to look at this decision and the laws that will flow from it through the lens of ideologues and believers overruling SBM based on their beliefs.

Let’s look at some not-so-potential consequences. We don’t have to speculate what the consequences of these laws will be for SBM. We know from history and other countries.

“The life of the mother”

Proponents of abortion bans always point to exceptions for “the life of the mother” included in every abortion ban in order to claim that such bans are not contrary to science- and evidence-based medicine and won’t harm the pregnant. But what does “the life of the mother” actually mean in practice? To the lay person, it might seem very clear: If continuing the pregnancy endangers the life of the mother, then termination is allowable even under these bans. It turns out that there are many cases where it is not that clear, and that, even in cases where it is very, very clear indeed, such bans tend to lead to situations in which optimal science-based treatment is impossible.

In fact, we don’t even have to speculate what is likely to happen. We already know, as a story published in The New Yorker over a month ago by Jessica Winter describes. It begins with a horrific anecdote from Ireland:

Savita Halappanavar’s water broke just after midnight on October 22, 2012, in a hospital in Galway, Ireland, in her seventeenth week of pregnancy. This meant two things: the fetus could not possibly survive, and Halappanavar was at risk of infection if the fetus was not immediately expelled or removed. She begged doctors to terminate her pregnancy—or, put another way, to treat her miscarriage—but they refused. A fetal heartbeat could still be detected, and the Eighth Amendment to Ireland’s constitution effectively banned abortion. After two days, Halappanavar developed sepsis; on October 28th, she went into cardiac arrest and died, at the age of thirty-one. An inquest into Halappanavar’s death found that even as her temperature and heart rate soared, even as she was entering septic shock, doctors continued to monitor the fetal heartbeat. “They were worried that, if they did a termination, they might be accused of performing an illegal act by not complying with the Eighth Amendment,” the doctor who led the inquest later said. A national outcry over Halappanavar’s death catalyzed a movement to repeal the amendment, which Ireland’s voters accomplished by referendum in 2018, with a two-thirds majority.

The science-based standard of care in such a case is, sadly, quite clear. Terminate the pregnancy before sepsis can set in. At the very least, such a ban on abortions will lead to fear and second-guessing by doctors faced with situations in which termination would be the standard-of-care to treat a given health condition in the pregnant. At the very worst, we will have cases like that of Savita Halappanavar. Clearly, hers was a dramatic case, but I included it to make a point. Exceptions to abortion bans to treat medical emergencies in order to “save the life of the mother” do not in practice protect the pregnant nearly as much as those citing them claim that they do.

The New Yorker article nicely summarizes the medical issues involved with exceptions for “the life of the mother”:

If, as expected, the Supreme Court abolishes the constitutional right to abortion in its forthcoming decision in Dobbs v. Jackson Women’s Health Organization, scenarios such as the one that killed Savita Halappanavar will become more likely to occur in the United States. Twenty-six states are likely to ban or criminalize abortion if Roe is overturned, including thirteen with “trigger bans.” These typically include a “life of the mother” exception, but the language of these exceptions varies in its scope and specifics state to state. Texas’s current six-week ban—its proponents call it the “heartbeat bill”—allows exceptions for “a medical emergency.” North Dakota would permit abortion “to prevent the pregnant female’s death.” Louisiana invokes “death or substantial risk of death,” or “permanent impairment of a life-sustaining organ,” but also requires “reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child.”

The questions implicit in these phrases—What constitutes an “emergency”? How does one define “substantial” or “reasonable”?—are left unanswered. “These laws presume a certainty that doesn’t exist in medicine,” Cara Heuser, a maternal-fetal-medicine physician in Salt Lake City, said. “How ‘life-threatening’ the situation has to be—I don’t know what that means.”

“In states where abortion becomes illegal, and particularly in states where there are criminal penalties for doctors or anyone who assists in an abortion, I fear that it will send a chill through the entire medical community,” Audrey Lance, an ob-gyn in Michigan, said. “People are going to be scared to intervene until the last minute or perhaps until it’s too late.”

Where does this fear among doctors come from? It comes from the criminalization of health care and a therapeutic operative procedure.

D&C vs. D&E for miscarriages

In addition to the very difficult medical and ethical issues that naturally come with reproductive health care doctors will now be forced to weigh, in any case in which termination of a pregnancy is the science-based standard-of-care treatment for a life-threatening condition during pregnancy, the good of the patient versus some very serious potential consequences to themselves. Why? As The New Yorker article points out, as many as 22 states are “likely or certain” to make abortion a felony, with potential penalties including jail time and fines to doctors who do the procedure. The result will be this:

A doctor who is inclined to provide an emergency termination would have to weigh her medical judgment against the possibility of criminal charges, losing her license, and never being able to practice medicine again. “There’s a very real fear: Will they force people to prove that they really had a miscarriage?” Heuser said.

We already know the answer to that question, I fear. In fact, we’ve long had examples even during the 49 years of Roe v. Wade, because Catholic hospitals have shown us, one in my very own state. This is not for someone seeking to terminate the pregnancy, but, as a Dallas OB/GYN is quoted in the article said, “This is not a person who comes to you and says, ‘I want to end this pregnancy.’ This is a person who is saying, ‘I am having a pregnancy complication, and I need you to help me.'”

Unfortunately, in the presence of punitive abortion bans:

That cry for help often goes unheeded in the presence of a fetal heartbeat, even if the demise of the pregnancy is inevitable. In 2015, the A.C.L.U. filed suit on behalf of a Michigan woman, Tamesha Means, against the United States Conference of Catholic Bishops, the body that writes the religious and ethical directives that must be followed by Catholic hospitals, which, as of 2016, accounted for about fifteen per cent of acute-care hospitals nationwide. The directives state that abortion is “never permitted,” barring “a proportionately serious pathological condition of a pregnant woman.” Means’s water broke at eighteen weeks, but she was sent home from a Catholic hospital, Mercy Health Partners, mid-miscarriage—twice—despite excruciating pain and possible infection.

At 18 weeks, the fetus is not viable outside of the uterus, and the risk of infection of the sort that killed Savita Halappanavar in Ireland after a premature rupture of membranes is very high. The science-based standard of care in nearly all such cases is to terminate the pregnancy, as described by an OB/GYN:

“Yes, there are absolutely certain medical conditions that warrant us to very urgently encourage a woman to have an abortion,” said Stacey Beck, MD and Assistant Professor at the Department of Obstetrics, Gynecology, and Reproductive Sciences, Maternal Fetal Medicine at the University of Pittsburgh Physicians

“One of the most common reasons I help women to terminate their pregnancy is because their water broke [early in pregnancy] and they have an infection,” Beck said.

If there’s a clear sign of infection, the condition can be life threatening, “because there is an extremely high risk that the infection inside of the uterus spreads very quickly into her bloodstream and she becomes septic. If she continues the pregnancy it comes at a very high risk of death.”

“Typically, if a woman breaks her water before 20 weeks into her pregnancy, it is usually strongly recommended by medical professionals that she considers an abortion,” Beck said.

It’s not just Catholic hospitals, either. Before the fall of Roe v. Wade, a number of nonreligious hospital systems would not permit their doctors to perform “abortions” as long as the fetus still had a detectable heartbeat, with predictable results:

Several physicians told me that hesitation to provide emergency-miscarriage care is not peculiar to Catholic or other religious institutions. Even in states where abortion rights are broadly intact, many hospital systems do not permit terminations for any reason; patients in need must be transferred elsewhere. Heuser, who serves as a consultant for general ob-gyns across her hospital system in Salt Lake City, told me, “I have got calls from the E.R., saying, ‘This patient is bleeding, but there’s still a heartbeat—I don’t know what to do.’ And I have had to say, ‘You are allowed to treat the patient. You need to save the patient. This is a medical emergency.’ If you hem and haw because you aren’t sure about the law or the rules—that’s dangerous for patients.”

Leilah Zahedi, a maternal-fetal-medicine physician in Tennessee, told me about a recent referral. “The patient was eighteen or nineteen weeks pregnant. She came in almost fully dilated and bleeding heavily, but the fetus still had a heart rate. The provider who transferred her was prohibited from giving her care, per the statutes of the hospital—it would have been considered an abortion. She transferred her to us because I am the only provider who is trained to do D. & E.s” in the area, Zahedi said. “When the patient reached us, within two minutes she lost 500 cc.s of blood. I said, ‘We’re done.’ I took her to the O.R. Her case was done in five minutes. She ultimately lost 2,500 cc.s of blood and needed a blood transfusion.”

That last case was what we in the biz call a near-miss. The patient could well have died and was certainly not served by all the delays due to the uncertainty at the referring hospital and then all the mechanics of being transferred to a hospital that was allowed to actually deal with the medical emergency. I would also argue that the uncertainty and fear that leads to doctors hesitating to take care of their patients according to science-based standards-of-care in these situations are a feature, not a bug, of many of these abortion bans.

Supporters of abortion bans will claim that there is a difference between an elective abortion and a therapeutic abortion (e.g., to treat a miscarriage or uterine infection after premature rupture of membranes). Here’s the problem. Both employ the same surgical procedure, and state bans in general do not distinguish between the two. To cite The New Yorker article again:

The two procedures also employ the same tools and techniques, depending on the stage of the pregnancy and the health of the pregnant person: medication or dilation and curettage (D. & C.) for early abortions; and dilation and evacuation (D. & E.) or induced labor for later abortions. (In his draft opinion reversing Roe, Justice Samuel Alito refers to D. & E. as “a barbaric practice.”)

Is a D&E still a “barbaric practice,” though, when it is used to save the life of someone who is dying from bleeding or about to go into septic shock? It’s a science-based life-saving surgical procedure. Proponents of banning abortion bans will swear up and down that it is not their intention to prevent life-saving medical and surgical care of life-threatening conditions like this in the pregnant, but it is irrefutable that abortion bans do just that. Under the best of circumstances, they insert more uncertainty, doubt, and second-guessing into the process; at worst, they force doctors to abandon SBM out of fear of prison and wait to intervene until much later in the life-threatening process, when the success rate of interventions are lower and, even when successful, come at a higher cost of complications.

What about other life-threatening conditions?

I know what some of you out there are saying now: “But, but, but those are extreme examples!” And so they are. I chose to lead with extreme examples because they illustrate most clearly the consequences of abortion bans with criminal penalties. Again, the cases described above are not even close calls from an SBM standpoint, nor were they meant to be. These patients were clearly going to die—and soon!—without surgical intervention in the form of a pregnancy termination. Even so, I’m brought back to the quote from Dr. Heuser about how these laws “presume a certainty that doesn’t exist in medicine” and her question: How life-threatening does the situation have to be to trigger an exception to the ban “for the life of the mother”?

One such condition is preeclampsia early in the pregnancy (less than 24 weeks). Preeclampsia is a disorder of pregnancy that usually develops later (after 20 weeks) and includes hypertension, severe headaches, kidney dysfunction (usually evidenced by protein in the urine), among other health issues. Major risk factors include diabetes, hypertension, kidney disease before pregnancy, autoimmune conditions (e.g., lupus or antiphospholipid syndrome), or having had high blood pressure or pre-eclampsia in a previous pregnancy. Other risk factors include a family history, age over 40, more than 10 years since a previous pregnancy, non-singleton pregnancy (twins and above), or a body mass index (BMI) of 35 or higher. Most of the time, pre-eclampsia is treatable through a combination of close monitoring and medications, although it is not “cured” until the fetus is delivered, usually at 37-38 weeks, sometimes by caesarean section.

Early severe preeclampsia, however, is more of a problem, because, again, the only treatment for preeclampsia is delivery, and the consequences of prematurity versus the risks to the mother (and fetus) of continuing the pregnancy must be carefully weighed, and sometimes when the preeclampsia is severe enough and happens long enough before fetal viability, pregnancy termination is the safest way to treat it and prevent complications such as stroke or kidney failure. Even later in pregnancy, it can sometimes be necessary:

But she says there also are cases after viability in which an abortion is safer than an induced childbirth or surgical delivery.

Cecily Kellogg, 44, a writer who lives near Philadelphia, says that was the situation she faced when she was nearly six months pregnant with twin boys in 2004 and developed severe preeclampsia. One fetus had already died and “my liver had shut down, my kidneys had shut down and they were expecting me to start seizing at any minute,” she says. The doctors said they had to quickly dilate her cervix and perform an abortion to save her. “I fought it,” she says. “But they told me I would die — that it was either me and my son or just my son.”

The bottom line is that there are well-described science-based indications for therapeutic abortions. By conflating elective abortion with these situations, abortion bans will result in deaths. Indeed, one recent study estimates that banning “all wanted induced abortions,” by increasing exposure to pregnancy-related mortality, could result in a 21% increase in pregnancy-associated deaths overall, with an even more whopping 33% increase among Blacks, which is unsurprising given that due to racial disparities in health care maternal mortality is already much higher among Black women in the US.

And don’t even get me started on legislators claiming that it is possible to “reimplant” ectopic pregnancies, for which the treatment is always surgical removal.

Before I move on to a broader discussion, I will mention one more horrific effect of these laws based on this Tweet:

That’s right. Some of these laws do not have exceptions for cases of pregnancies in which it is discovered that the fetus has unsurvivable anomalies; the sole exception in Arkansas is now to save the life of the mother in a “medical emergency” (undefined). States with such laws would prevent the science-based standard of care, termination of pregnancies in which unsurvivable fetal anomalies are present, requiring such pregnancies to be carried to term, with all the attendant risks of complications and death. In Arkansas, apparently, pregnancies involving anencephalic fetuses (a fetal anomaly when the brain fails to develop) must be carried to term. Ditto fetuses with severe anomalies such as a lethal form of skeletal dysplasia.

Beyond reproductive healthcare

If you think that the fuzziness over what constitutes a true danger to the “life of the mother” just affects science-based healthcare decisions in reproductive health, think again.

Saturday on Twitter:

It’s true, too. Cancer during pregnancy is an issue that comes up from time to time among breast cancer surgeons, medical oncologists, and radiation oncologists. What do we do when a breast cancer is diagnosed during pregnancy? For example, if a pregnant patient presents with a breast cancer that needs chemotherapy before surgery, it is possible to administer it relatively safely during the second and third trimesters (although long term data regarding outcomes in the children delivered after chemotherapy during pregnancy are still lacking). However, during the first trimester chemotherapy is most definitely not safe due to the teratogenic (mutation-causing) characteristics of the chemotherapy used, as this guidance from the American Cancer Society describes. It is often possible and reasonably safe to delay treatment until the pregnancy is into the second trimester—but far from always. There are cases that are sufficiently urgent that waiting to start chemotherapy will definitely result in a much higher risk of death from the cancer.

The American Cancer Society states:

Treatment choices can become complicated if there is a conflict between the best known treatment for the mother and the well-being of the baby. For example, if a woman is found to have breast cancer early in her pregnancy and needs chemotherapy right away, she may be advised to think about ending the pregnancy. A counselor or psychologist should also be part of your health care team to help give you the emotional support you may need.

Some older studies found that ending a pregnancy in order to have cancer treatment didn’t improve a woman’s prognosis (outlook). Even though there were flaws in these studies, ending the pregnancy is no longer routinely recommended when breast cancer is found. Still, this option may be discussed when looking at all the treatment choices available, especially for metastatic (stage IV) or aggressive cancers that may need treatment right away, such as inflammatory breast cancer.

It’s not just breast cancer, either, of course. These considerations are in play for any cancer diagnosed in during pregnancy that will require chemotherapy for definitive treatment. Although I’m not an oncologist, hematologic malignancies like leukemia come to mind right away. Moreover, as a physician on Twitter described the situation, there’s no bright line. The situation is complicated:

Surgeons know this too, as to OB/GYNs. Dr. Nichols also correctly added that we shouldn’t “for a second think the same extremists who wanted to overturn Roe don’t also want to dramatically narrow the scope here as well.”

Again, abortion is part of healthcare, and, contrary to frequent claims from those seeking to criminalize it that it is “never necessary” to save the life of the mother, which brings us to my final section.

Is abortion ever “medically necessary”?

Some advocates of abortion bans go beyond banning it for anything other than “emergencies” in which death is imminent, an exception that, as narrow as those supporting abortion bans try to make it, is still an exception that they concede. Some refuse to admit to any exceptions and go on to deny that abortion is ever “medically necessary”. Some of these people are even doctors. For example, the American Life League circulated a statement that a disturbing number of physicians (although still under 500) signed:

I agree that there is never a situation in the law or in the ethical practice of medicine where a preborn child’s life need be intentionally destroyed by procured abortion for the purpose of saving the life of the mother. A physician must do everything possible to save the lives of both of his patients, mother and child. He must never intend the death of either.

There is never a reason in law or in practice to advocate a “life of the mother” exception for abortion. We base this statement on testimony of many pro-life physicians over the years, including John F. Hillabrand, M.D., Herbert Ratner, M.D., and Bernard N. Nathanson, M.D.

I would counter that any physician who signs such a statement have fallen prey to magical thinking that is as non-reality-based as that among antivaccine physicians, ivermectin pushers for COVID-19, and those who become naturopaths. There’s a reason (many reasons, actually) why the American College of Obstetrics and Gynecologists released this statement:

The science of medicine is not subjective, and a strongly held personal belief should never outweigh scientific evidence, override standards of medical care, or drive policy that puts a person’s health and life at risk.

Pregnancy imposes significant physiological changes on a person’s body. These changes can exacerbate underlying or preexisting conditions, like renal or cardiac disease, and can severely compromise health or even cause death. Determining the appropriate medical intervention depends on a patient’s specific condition. There are situations where pregnancy termination in the form of an abortion is the only medical intervention that can preserve a patient’s health or save their life.

As physicians, we are focused on protecting the health and lives of the patients for whom we provide care. Without question, abortion can be medically necessary.

I haven’t even discussed a large number of other medical situations in which abortion might be necessary to save the patient’s life, such as one that you might not even have considered, hyperemesis , the mental health effects of being forced to carry a nonviable pregnancy to term, which is associated with a high risk of suicide, or situations in which surgery for a life-threatening condition is unsafe during pregnancy. The list goes on and includes healthcare that you might not realize. For example, the “abortion pill” misoprostol has many other uses besides as an abortifacient; indeed, in a 2021 research paper on misoprostol use in Francophone Africa, medical sociologist Siri Suh described misoprostol as “widely recognized as an essential obstetric medication,” yet lamented that “the stigma of abortion stalls its integration into routine obstetric care and availability to the public.” In addition, the related drug mifepristone can be used in the management and treatment of fibroids and Cushing’s syndrome by blocking progesterone. Again, the list goes on. Nor have I touched much on the many other adverse effects that such restrictive abortion bans will have on health, and I would be remiss if I didn’t take an opportunity before the end of this post to emphasize how much carnage will likely result from unsafe “underground” abortions that those desperate to end their pregnancies will seek out.

Regardless of one’s position on the morality of abortion as a form of birth control (and, although I am no longer of a Catholic belief system regarding this, I can still to some extent understand), it should be clear that the strict bans that will soon be part of life in probably more than half the states are ideological, not scientific. The arguments being used to justify them are every bit as reality-challenged as those made in support of laws licensing chiropractors, acupuncturists and naturopaths, legislative efforts to protect doctors who practice quackery and those who promote the use of disproven drugs like ivermectin to treat COVID-19 from regulatory sanctions, and laws preventing public health departments from instituting measures to slow the spread of the pandemic.