In the case, which is backed by the Center for Reproductive Rights, the plaintiffs argue that, “contrary to their stated purpose of furthering life, the bans are exposing pregnant people to risks of death, injury, and illness, including loss of fertility.” A statement from the office of the Texas attorney general, Ken Paxton, in response to the suit said that he was “committed to doing everything in his power to protect mothers, families, and unborn children, and he will continue to defend and enforce the laws duly enacted by the Texas Legislature.”
As harrowing individual stories come in from across Texas, a rigorous accounting of the human toll of abortion bans in the state is still years away. The state’s Maternal Mortality and Morbidity Review Committee, which analyzes individual cases and trends statewide, issued a biennial report, based on data from 2019, only last December.
But, after S.B. 8, one ob-gyn who treats patients at Parkland and Clements Hospital in Dallas, Anjali Nambiar, embarked on a study of her own, focussed on morbidity. She wanted to know how women who had pre-viability ruptured membranes, severe preeclampsia, or vaginal bleeding had been treated since the passage of S.B. 8 and another state law, about to take effect, that would make it a state felony to administer abortion medications after seven weeks.
The results of that research, published last fall in the American Journal of Obstetrics & Gynecology, focussed on twenty-eight patients whose course of treatment had to be changed to stay compliant with the laws’ provisions. Nambiar and her co-authors found that, compared with similar research done in states without such legislation, maternal morbidity had increased as a result. Twelve of the women experienced complications that included infections and hemorrhages; nine of them had ended up in the I.C.U., undergone dilatation and curettage, or been readmitted into the hospital after being discharged; and one had required a hysterectomy. Of the twenty-eight case studies, among the fetuses or babies, there was only a single survivor. That baby, the ob-gyn at Parkland said, remained hospitalized for months.
Once they saw the data, doctors at Parkland and Clements told me, they went to hospital lawyers. “Our numbers are horrible, and our patients are just getting infected with zero benefit to the baby,” the ob-gyn at Parkland recalled saying. “Can we please go back to the way we were doing this?” Since then, the doctor and a counterpart at Clements said, they have been allowed to induce labor for patients with second-trimester rupture of membrane before an infection arises, even if the fetal heartbeat is still present. “We could not reverse the damage,” the Parkland ob-gyn said, “but at least we could offer some options to some patients.”
A spokesperson for the University of Texas Southwestern, of which Clements is a part, said that its legal department provides counsel in accordance with the law, and that the hospital has never offered pregnancy termination for a pre-determined list of medical conditions. “Legal advice is not provided on the basis of medical research results,” the spokesperson added. “Interpretation of medical research would be within the purview of the provider.” A spokesperson for Parkland, which partners with the University of Texas system, did not elaborate on specifics, but said, “When changes in law mandate changes in clinical practice, our hospital attorneys work in close collaboration with our clinical leaders to insure Parkland patients continue to receive excellent care.”
Earlier this year, at a large hospital in Houston, a pregnant woman came into the emergency room. She had severe preeclampsia, the ob-gyn who treated her told me, and it had evolved into something called HELLP syndrome—a condition that can cause liver and kidney failure in the mother. To the doctor, it was obvious that the patient needed to have the choice to have an abortion to stay alive. However, under the new hospital rules, the patient had to wait until a perinatologist and a maternal fetal expert reviewed her case, attested to her level of medical extremity, and offered their clearance.
Theoretically, having committed medical professionals thinking together about what’s best for a mother in a medical crisis will lead to better decisions, and better outcomes. But, in a climate of intensifying fear, actual experiences in Texas tend to diverge from the ideal. The ob-gyn told me, “It took more than twenty-four hours before this patient got the care that she really needed, because people were scared, people were hesitant. We had to make sure, Is this a thousand per cent of what we’re saying it is? Cross all those ‘T’s and dot all those ‘I’s, before she could undergo the procedure that she needed.”
On another distressing workday, the Houston doctor saw a thirty-eight-year-old woman who’d just discovered she was pregnant. The woman explained that she had already had three Cesareans in the past, and the physician who had delivered her children had warned her that a fourth pregnancy could be fatal. In tears, the woman begged for an abortion. “I don’t know what I’m going to do,” the ob-gyn recalled her patient saying. “I can’t die. I have three kids to take care of.”
The doctor didn’t know what to do, either. One provision in S.B. 8 allows private citizens to sue people who “aid or abet” women seeking abortion care and collect ten thousand dollars in return. So, in addition to trying to treat and counsel patients as thoughtfully as possible, doctors must beware of anyone who might be asking questions for the wrong reason. The woman could be setting her up for money. “It’s terrifying because I can’t really speak my mind fully,” the ob-gyn later told me. “You never know who you can trust.”
Finally, out of instinct and in haste, the doctor jotted the names of a few clinics out of state on a piece of paper and slipped it under the table. “This conversation never happened,” she told the mother, looking evenly at her.
The Texas laws are “a patchwork,” said Jamila Perritt, an ob-gyn and the C.E.O. of Physicians for Reproductive Health, “and deliberately confusing.” And that confusion sometimes poses, for doctors, a profound ethical test. As another Houston doctor put it to me, “Imagine a bullet is flying in your direction and you have a choice of either saving your family from being hit or saving a patient that you just met. As doctors, we’ve sacrificed a lot to be at that bedside when women need us the most, but you ask us to let our family take the bullet for somebody that we don’t know? Most people would draw the line.”
Texas hospitals and clinics are hardly islands of liberalism in a red state. Many health-care workers support abortion restrictions, and that leaves some doctors hesitant about what they can say or do in front of their own staff. The ten thousand dollars or more that could come from suing someone for abetment is a powerful incentive, and a complaint to authorities about a doctor could lead to felony charges. Tony Ogburn, an ob-gyn practicing in South Texas, told me that, after arrangements had been made to terminate the pregnancy of a patient who he and other doctors believed was at risk of dying, a nurse who disagreed confronted him, saying “I feel I could sue you if I wanted to.” Shaken by the threat, he made a decision to start meeting with patients privately.
Other doctors I spoke to were especially wary in front of colleagues they hadn’t met before. At a training for non-ob-gyn physicians, a doctor hesitated over which words to use. “Even me saying the words ‘spontaneous abortion,’ which really is the medical term for a miscarriage, I felt like I was cursing in front of a group of executives,” the doctor said.
Under the circumstances, some doctors are now using creative ways to convey that women could seek abortions out of state, by bringing up the fabulous weather in Colorado and implying that they could get a second opinion there. “I want to believe that everyone understands what we mean when we say that, but I don’t actually know,” a maternal-fetal-medicine specialist in San Antonio said. “We haven’t been able to say, specifically, ‘If that’s something that you want, you can go to this clinic in this other state.’ ”
Jamila Perritt, of Physicians for Reproductive Health, said of the Texas law, “What it’s continuing to do is create this adversarial relationship between patients and providers. Now, instead of caring for you in the way that I know is evidence-based, grounded in the science, and in line with your desires and your preferences as the patient, instead I’m entering the room concerned about myself.”
Before Lauren Miller, a thirty-five-year-old Dallas woman, made her first prenatal appointment, she had already paid a visit to the emergency room. Newly pregnant, more than a year after having a son, she was concerned that this pregnancy felt nothing like her first. The nausea and vomiting were relentless. In the emergency room, doctors gave Miller two pieces of news: she was expecting twins and had hyperemesis gravidarum, a severe form of nausea. The good news outweighed the bad—Miller and her husband had always wanted to have three children. The couple began looking for a new car in which the twins, whom they now called Los Dos, could comfortably fit.
Near the end of her first trimester, Miller went to see her longtime ob-gyn, who told me what she told Lauren: “There was a discrepancy between the two fetuses.” An ultrasound revealed that they were growing at different paces. In a follow-up visit, Miller learned that the smaller baby had two large fluid-filled sacs near the brain. Blood tests showed that her son had Trisomy 18, a rare genetic condition in which, research indicates, there is only a five-per-cent chance of survival to full term.
Miller sought opinions from, in addition to her ob-gyn, a maternal-fetal expert and a genetic counsellor. The doctors all said that the twin she called Baby B would very likely die, Miller recalled in a recent interview—and that it was just a matter of how soon. “Every day that he continued to develop,” she said doctors told her, “he was putting his twin and myself at higher risk.”
But, with virtually every doctor’s appointment she attended, she remembers encountering hesitancy and fear. Doctors found themselves stopping midsentence, careful to avoid the word “abortion,” she recalled. It wasn’t until a doctor tore his gloves off, sourly threw them away, and spoke his mind that Miller confirmed what she had feared all along. “I can’t help you,” the doctor told her. “You need to leave the state.”
Her family had the money to do so, and, within a week, a clinic in Colorado, a state where abortion is legal, administered what’s known as a pregnancy reduction. Miller joined Amanda Zurawski in suing the state of Texas; she delivered the remaining baby, a healthy son, two months ago.
Since the overturning of Roe, countless Texan women in Miller’s situation have sought care in Colorado, but what poses as a solution for them is beginning to create a crisis for ob-gyns out of state, and raises the question of when a serious state health-care problem is actually a national one.
“Life as we know it has been turned upside down,” Emily Schneider, the legislative chair of the American College of Obstetricians and Gynecologists in Colorado, said. “Let’s just say I got started on antidepressants last summer.” Schneider, herself an ob-gyn, has got used to seeing patients not just from Texas but also from Oklahoma, Wyoming, Idaho, and Louisiana. Some have called labor and delivery at the hospital where she works: “My baby has an anomaly. Can I come?” Others have shown up at her office unannounced with an ectopic pregnancy.
Not long ago, one of the patients coming to see Schneider from Texas got in a car by herself with a C-section-ectopic pregnancy, a serious complication in which the pregnancy implants in the scar from a previous Cesarean. The ectopic pregnancy ruptured in a deserted area outside Denver, so the woman had to be rushed in an ambulance to the nearest emergency room. There, she underwent a hysterectomy and had to spend days in the I.C.U. to make up for her blood loss. “This is not American health care,” Schneider said of the current system. “It’s Russian roulette.”
Eventually, Schneider said, some provider in Colorado, New Mexico, California, or another state with a liberal stance on abortion would be sued by some institution or individual in one of the states that ban abortion. Still, no matter how physically and emotionally taxing, practicing in a city like Denver was itself a privilege in the post-Roe age. “There’s this overwhelming sense of ‘Well, bring it on,’ ” Schneider said. “We’re not going to turn these patients away.”
In Texas, several exhausted doctors told me they had considered moving elsewhere. But they have yet to do so, in part because they can’t imagine abandoning the women who come in every day, who are themselves deeply upset by the bans, and who are too poor to go elsewhere for abortions. As the Parkland ob-gyn put it to me bluntly, “Our patients don’t have the ability to pack up and leave.” So she and her Clements colleague, and their colleagues, will continue, for now, to push the boundaries of the law on the basis of evidence that they collected on their own initiative.
If that stance proves controversial in Texas, the Parkland doctor believes that pushback from doctors within individual hospitals matters, not just for pregnant women in extremis but for every person in the state who will need to rely at some point on an ob-gyn. New data from the Association of American Medical Colleges shows that states that banned abortion have seen a drop in applications for obstetrics-and-gynecology residencies. Naturally, students considering coming to Texas are asking, How has the hospital responded to the bans? What does ob-gyn training look like these days? And what are you able to offer patients? “When nobody wants to train in Texas, as the physicians get older and retire, there will be no ob-gyns in the state,” the doctor told me. “And that’s when you’ll really see maternal mortality go up.” ♦