In 2023, a woman walked into a health centre in Houston trailing an IV pole. She was suffering from hyperemesis gravidarum — essentially, an extreme form of morning sickness. The woman was vomiting constantly, could not retain food or fluids, and was being kept alive by being fed through a drip.
“She had been to the ER so many times,” family medicine provider and physician Bhavik Kumar told openDemocracy, “and she was so frail and thin that the ER sent her home with an IV pole. I’d never seen that before.”
The patient asked for an abortion, which affords rapid relief from hyperemesis gravidarum. Before the fall of Roe v Wade, which constitutionally protected the right to abortion, in 2022, Kumar could have provided that care in his outpatient clinic. But because Texas’s new near-total ban, he couldn’t help.
When asked what happened to the woman with the IV pole, Kumar said he didn’t know. “We often don’t know the outcome,” he explained. “A patient might come into my clinic with any number of conditions, perhaps heavy bleeding and a history of haemorrhage… They have to go home and wait for the condition to become an emergency. Then they go to the ER.”
Data from the Texas Department of Health and Human Services support Kumar’s point: 100% of reported abortion care in Texas now occurs in hospitals. Before the fall of Roe, that figure was 0.1%, with the overwhelming majority occurring in outpatient clinics.
There are three main laws regulating abortion in Texas. The “trigger ban,” so called because it was triggered by the Supreme Court’s reversal of Roe v Wade, establishes an almost total ban on abortions and provides for criminal and civil penalties; another law enacted before Roe v Wade criminalizes the provision of abortion care; and SB8 (for ‘Senate Bill 8’) allows citizens to sue anyone who aids and abets an abortion.
As a consequence, Texas women with obstetric emergencies are waiting until their need for an abortion is an emergency because that is what the “trigger ban” requires. It prohibits abortion at any point in pregnancy for any reason, with one exception: abortion is allowed if it is, “in the exercise of reasonable medical judgment,” necessary to save the mother’s life or avoid “a serious risk of substantial impairment of a major bodily function.”
The problem with this exception is that doctors are not sure when it applies. That uncertainty is upending medical care across Texas — not just abortion care, but any health care that is provided to pregnant people, or people who might become pregnant.
The exception is so vague, said Sonia Suter, a law professor at George Washington University, that it is “virtually meaningless,” Suter told openDemocracy. “What’s the magnitude of the risk that the law requires?” she said. “What’s the probability of harm? How imminent must it be?”
It is not enough, according to the Texas Supreme Court, for a doctor to say that an abortion is required in the doctor’s “good faith medical judgment.” Instead, “the medical judgment involved must meet an objective standard” — whatever that means.
“The vagueness of these laws is a feature,” said Suter, “not a bug. The vague exceptions allow a layperson to say ‘oh, the state cares about women’. But the state doesn’t care.”
Doctors do not have the legal training to interpret complicated abortion laws, and many said they lack guidance on them from hospital or clinic administrators. If they run afoul of the Texas abortion bans, they also face severe penalties, including 99 years in prison, fines of at least $100,000, and the loss of their medical licence.
In these circumstances, “the easiest thing to do is to play it safe and not even mention abortion,” one gynaecologist, who asked for anonymity, told openDemocracy.
Fear of running afoul of the law has led some doctors in Texas not only to avoid so much as mentioning abortion, but also to change how they handle medical matters like IVF, miscarriages, ectopic pregnancies, and even chemotherapy.
Sarah*, a lawyer who works in Dallas, saw first-hand how the state’s abortion bans can affect medical care in unexpected ways. She became pregnant using IVF last year, and her doctor cautioned her against testing her embryos for anomalies. All testing of embryos can damage them, he told her, and he did not want to risk that.
Sarah followed her doctor’s advice and is now four months pregnant. Although she is excited to become a mother, she worries about what would happen if there were a problem with her pregnancy. “For the first time in my life,” Sarah said, “I was like: ‘I do not like that the state I live in is putting this restriction on me.’ What if I don’t test this embryo, and it takes, and there’s a problem? I understand that life is precious, but I don’t want to bring a child [into the world] that has a higher likelihood of suffering than a healthy child would.”
Sarah’s experience is not unique. Alex, who works at a not-for-profit organization in Houston and is 15 weeks pregnant, had a miscarriage in 2019. That miscarriage ended in dilation and curettage — a procedure that removes foetal tissue from inside the uterus, and is a standard part of miscarriage care, essential to preventing infection and heavy bleeding. But it can also be used to provide an abortion. Alex worries she would have to leave the state if she needed the same procedure today.
She has good reason to be concerned. “The treatment is largely the same for a miscarriage and abortion,” said Suter, “and making the distinction is really, really tricky. How is a doctor going to determine when a woman comes in with bleeding whether it’s a failed self-administered abortion versus a miscarriage?”
Kumar added: “Ectopic pregnancies can be a grey zone, too,” Kumar added. An ectopic pregnancy occurs when a fertilized egg grows outside the uterus, usually in a fallopian tube. As the pregnancy progresses, it can cause the tube to rupture. That rupture can cause major internal bleeding, which is a medical emergency.
Although Texas enacted a new provision in September 2023 to allow treatment of ectopic pregnancies, as well as miscarriages caused by the premature rupture of membranes, doctors interviewed for this piece said the new law fails to provide clarity. What’s more, a doctor can still be charged for providing this type of care if someone alleges that they were actually performing an abortion. And if they are criminally charged, state law provides that the doctor themselves — not the state, as is typical in criminal proceedings — bears the burden of proof, meaning they must show that they were actually treating an ectopic pregnancy or miscarriage.
As a result, Kumar said, “the way we manage” ectopic pregnancies and miscarriages “has really changed.” In both situations, “we have to wait and watch much longer than we used to and document the condition much more thoroughly.” That approach is contrary to best medical practices, he said, because it delays essential care.
Even cancer treatment has been affected by the state’s abortion bans. Claire Hoppenot, a gynecologic oncologist in Houston, said she had recently seen a pregnant woman with cervical cancer. The woman was ultimately treated with a localized cervical procedure, which carries a risk of miscarriage. Hoppenot said she had wondered: “If she does miscarry because of this procedure, is that going to cause me problems, even though the procedure is nothing like an abortion?” In the end, the patient’s pregnancy was safe, but Hoppenot said these sorts of concerns about the law “have changed how I talk to patients.”
The Texas Supreme Court has recognised that medical staff are confused about the scope of the state’s abortion ban. In a judgment dated 11 December 2023 denying abortion care to Kate Cox (a woman with a non-viable pregnancy who then had to flee Texas to get an abortion), it called on the Texas Medical Board to clarify exactly what the ban’s narrow exception means in practical terms.
The court said the board could usually “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” as it has done “in other contexts, such as its Covid-19.” To date, however, the board has not provided any insight on the scope of the Texas abortion bans, and there is no deadline for it to do so.
Contacted for comment for this article, the board did not respond. The Texas Department of Health and Human Services initially said that it had “received [the] inquiry” for this article “and [would] process it.” But three days later, it wrote back: “We’re not offering comment on Texas abortion laws.”
Supporters of Texas’s ban say that the law’s language is already clear. State senator Bryan Hughes, for example, wrote in an August 2022 letter to the Texas Medical Board that “Texas law makes it clear that a mother’s life and major bodily function should be protected. Any deviation,” such as delayed care for ectopic pregnancies or miscarriages, “should be investigated as potential malpractice.”
Even if the law is clear to state senators, evidence collected for this article indicates that it is not clear to Texas medical professionals. The same is true in other states with similar abortion bans. For example, in Oklahoma — which bans abortion except when it is necessary to preserve the mother’s life — most hospitals could not explain when or how the decision would be made to terminate a pregnancy to save a mother’s life, according to a 2023 study.
In other words, the problems caused by the vague abortion laws in Texas are also cropping up in other U.S. states: as well as Oklahoma, Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, and West Virginia broadly prohibit abortion, except where it is necessary to preserve the life and/or health of the mother (and in some states, in cases of incest or rape).
The “overall medical harm” caused by these bans means that people “have to wait longer for abortion care or miscarriage management” — that is, until their need for that care is an emergency. Delays in care drive “an increase in maternal morbidity and mortality,” Kumar explained.
America already has the highest maternal mortality rate among wealthy countries, and people of color — especially Black women — are disproportionately affected.
Recent abortion bans will likely worsen these problems, according to Kumar. In other words, these bans are bad for women’s health. That seems clear, even if much else about these laws remains hazy.
*Name has been changed