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Even Exceptions To Abortion Bans Pit A Mother’s Life Against Doctors’ Fears

Layla Houshmand was eight weeks pregnant in the spring of 2021 when she woke up to find her field of vision smeared with a hazy sheen, like Vaseline rubbed on the lens of a camera. She was already worried about her own health. She’d spent the day before nursing herself through the pain of a migraine. But now the headache was worse and her vision was blurring and Houshmand was even more scared. Then the vomiting began. Nothing would stay down. During one 90-minute appointment with an ophthalmologist, she remembered vomiting 20 times. 

Something was clearly going horribly wrong with Houshmand’s body. Her ophthalmologist suspected a stroke in her optic nerve and told her the condition can be caused by pregnancy, but Houshmand was stuck in a Catch-22: The pregnancy was now also preventing treatment. Doctors told her that she needed steroids and blood thinners and a specific type of MRI that could make sure there wasn’t something even more serious happening. But she couldn’t get any of those things because they could endanger her fetus. 

Houshmand decided she wanted an abortion. She wasn’t willing to risk losing eyesight and continuing to be in pain, vomiting over and over, with no solution … not for an eight-week pregnancy. But her doctors couldn’t help her — abortion wasn’t even an option they brought up. Houshmand had to find a private clinic that could treat her on her own. After the abortion she found out the truth: She had a life-threatening infection in her optic nerve. 

As long as she was pregnant, none of the doctors Houshmand encountered would do the things that needed to happen to diagnose her — or treat her. Without an abortion, she was just a sick pregnant woman, rather than a woman who needed an abortion to save her life. 

What overturning Roe means for abortion access across the US | FiveThirtyEight

With the end of Roe v. Wade’s abortion protections, there are now millions of Americans who won’t be able to get an abortion if they want one. Some, like Houshmand, will be people who are seeking abortion because of the way a pregnancy is affecting their health. In theory, this shouldn’t be a problem, thanks to exceptions for the life of the mother that are common, even in the strictest abortion bans. But the medical professionals, legal experts and researchers we spoke to said those exceptions are usually vague, creating an environment where patients have to meet some unspoken and arbitrary criteria to get treatment. 

When it’s not clear what is legal, patients are often treated as though nothing is. It can be hard to prove your medical emergency is enough of an emergency to get an abortion in a doctor’s office or hospital, or to get Medicaid and other insurers to pay for it. Uncertainty breeds fear and stigma for doctors, who might delay treatment so they can evaluate just how close a person is to dying. In some situations, patients are simply shuttled from one facility to the next like a hot potato until they find a place willing to offer care.

There are a lot of unknowns about what will happen in the wake of the Dobbs decision. But doctors say they do know at least one thing: Overturning Roe v. Wade will lead to more situations where the health and safety of a pregnant person comes second to doctors’ own risks and fears. They know this because it’s already been happening for years. 

As she sat in the ophthalmologist’s office, it was obvious to Houshmand that her symptoms were freaking out the eye doctor. And what that doctor had to say was freaking out Houshmand. Her vision loss might be permanent, and she could also end up losing vision in her other eye. But, Houshmand remembers the ophthalmologist saying, “You’re pregnant so there’s nothing I can do for you.” 

No one ever said the word “abortion” out loud or even suggested it as an option — and this was in Maryland, a state that has very few restrictions on abortion. The doctors just told her what she needed and why she couldn’t have it. When Houshmand tried to call her OB-GYN’s office to ask what kind of abortion would be safe for someone who might have had an optic nerve stroke, the flustered medical assistant who answered the phone didn’t answer her questions and tried to talk her out of making any quick decisions. And the OB-GYN couldn’t even help Houshmand — she worked at a religiously affiliated hospital and Houshmand’s condition didn’t meet its standard for when abortions could be performed. 

Houshmand felt trapped between the parts of the medical system that were ideologically opposed to her choice, and the parts that were too afraid of controversy to help her. 

And it is pretty common for sick pregnant people to end up squeezed in that vise, said Dr. Lisa Harris, a professor of obstetrics and gynecology at the University of Michigan who specializes in treating pregnant patients with complex medical problems. While she can remember cases where death was certain if an abortion couldn’t be performed — a patient with heart and lung failure, for example — they only come up maybe once a year in her work. But patients like Houshmand happen all the time, she said. “Maybe it’s a 30 or 50 percent chance that someone might die. And they might not die immediately. Maybe it would be in the next week or month, or even year or beyond.” 

Abortion bans and abortion restrictions nearly all contain exceptions that allow abortion to save the life of the mother, and, in some cases, preserve her health as well. But every law and statute that contains this exception is written a little differently, and most of them are ambiguous about what constitutes “life-threatening” and how that should be determined. Maryland’s “life of the mother” exception to its ban on post-viability abortions specifically allows doctors to use their best medical judgment. But that kind of detail isn’t common, said Joanne Rosen, a senior lecturer on public health and law at Johns Hopkins University. What’s more, she said, “the states that are the most hostile to abortion are the states least likely to provide really helpful specificity.” Take Tennessee’s abortion ban, which requires doctors who perform an abortion to prove that “the abortion was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”

Legislators in these states may worry that if the laws give doctors too much leeway, some will take advantage and use that as an excuse to perform any abortion they want, said David Cohen, a law professor at Drexel University’s Kline School of Law who has studied abortion restrictions. Rosen agreed, saying the ambiguity is part of how states make abortion — even doctor-recommended abortion — hard to get. Even if doctors’ actual liability is kind of nebulous, the fear that they could go to jail, incur legal costs or lose their medical license is acutely clear. “It will massively change the risk calculus,” Cohen said. “People will have to think, ‘Will I spend 10 to 20 years in jail for performing this abortion?’”

There’s no clear answer to that question under an ambiguous law. After Texas passed Senate Bill 8, which banned abortion after fetal cardiac activity is detected, as early as six weeks, and opened the door for expensive civil lawsuits against doctors, a group of researchers interviewed 25 clinicians in the state and found a huge amount of variation in how those people were interpreting exceptions in the law. Some were still providing abortion counseling and referrals. Others felt they weren’t allowed to even mention the treatment. Some thought the health of the mother exception in the law allowed them to perform abortions for patients whose water broke before the point of fetal viability. Others were sending those patients home to wait until infection set in and the patient could be admitted to an intensive care unit. 

Meanwhile, hospitals often err on the side of caution even in states without bans. “It’s common when I talk with friends who work at hospitals, where, even though abortion is legal in their state, their hospital or clinic has chosen not to allow them to do abortion, because they don’t want controversy,” said Jonas Swartz, a professor of obstetrics and gynecology at Duke University Medical School. Several other medical professionals we spoke with also said that secular hospitals often had policies on abortion that were more strict than state law. Jen Moore Conrow, former director of the Pregnancy Early Access Center at the University of Pennsylvania, described setting up the hospital’s new internal clinic for handling miscarriage and medically necessary abortion in 2015, and then not being allowed to publicly talk about that clinic in the media for two years. A Penn Medicine spokesperson said the system is committed to providing information to the public, including frequently addressing reproductive health issues in the press. “The chair of our department was like, ‘We don’t ever want to be an abortion clinic.’ And I’m like well, we are an abortion clinic,” Conrow said.

“When you’re pregnant, you’re a second-class citizen inside your own body,” Houshmand said. “It was just abundantly clear to me that everyone was prioritizing this eight-week embryo over me.” Houshmand wrestled with those feelings while she argued with her doctor’s office on the phone, while she called abortion clinics on her own, and while she waited overnight for the appointment she’d managed to get. She felt like she was going crazy. The pain was so intense that she’d barely slept in two days. She passed out in her shower. And, seemingly out of nowhere, Houshmand began to have thoughts of suicide. 

She would later find out that was caused by the infection in her brain. But in some ways she was lucky. Her emergency happened at the right place, at the right time. If she’d gone through this experience now, she might not have been able to get that appointment since wait times are rising as remaining clinics struggle to meet a demand for abortions that doesn’t go away just because national abortion rights have.

Delayed treatment has real impacts on the health and welfare of pregnant people. A condition that wasn’t immediately dangerous two weeks ago might be life and death today. And with every week that passes, the fetus gets bigger and abortion becomes more complicated and riskier, as well. Maternal mortality rates are higher in states that have more abortion restrictions, even after scientists account for demographic factors. Suzanne Baird, an obstetric nursing and health care consultant and a member of the board of the Association of Women’s Health, Obstetric and Neonatal Nurses, said delays could be one reason why. She pointed to a 2018 report by nine state committees that review individual cases of maternal mortality in the United States. This report found that delayed diagnosis and treatment had been a major factor in those deaths

In North Carolina, for example, Swartz has had to follow state restrictions, including a 72-hour waiting period and reading mandatory scripts meant to dissuade a patient from an abortion — even when the patient is sick. It’s common, he told us, to find himself debating whether a patient who isn’t in an emergency situation yet, will be by the time the waiting period is up. 

Likewise, Medicaid and many other state-funded insurance providers can’t use federal funds to pay for abortions unless the life of the mother is at risk. And doctors we spoke to say those exceptions are approved in arbitrary, haphazard ways that vary widely by state as well as the reviewer of that particular case. If the case is denied, the patient has little means to pay out of pocket. Conrow described having to delay the care of a patient with sickle cell anemia, waiting to see if Medicaid would cover the patient’s abortion, knowing that sometimes Medicaid will cover abortions for people with the disorder … and sometimes it won’t. In 2019, a report from the Government Accountability Office found that some states weren’t following federal requirements for Medicaid abortion funding — such as paying for abortion pills, or covering abortions in the cases of rape or incest. 

Even when patients aren’t going to die, they can still be left with lifelong complications that abortion could have helped them avoid, Harris said. One of her first cases at the University of Michigan involved a patient who wanted an abortion because of a fetal anomaly, but who also had placenta previa — a condition where the placenta grows across the part of the uterus that would normally open during childbirth. Instead of giving her a second-trimester abortion, dilating the cervix and removing the fetus through the birth canal, doctors had decided to induce labor with drugs. Days of contractions later, when the patient still hadn’t given birth, her doctors planned a hysterotomy. That procedure is like a C-section, surgery that cuts through the abdominal wall and uterus, but because the uterus is still so small in the second trimester, the scarring resulting from the hysterotomy would have meant the patient would never be able to give birth vaginally — and might have had trouble maintaining a future pregnancy at all. Instead, Harris performed an abortion, leaving the patient’s uterus intact. 

Being pregnant can make you sick, and it can exacerbate existing illnesses you never knew you had. The needs of pregnant people sometimes end up at odds with the needs of a fetus. And in that way, abortion restrictions — and vague life of the mother exceptions — are a thumb on the scale. The end of Roe v. Wade will obviously throw that balance even more out of whack, but the asymmetry was already there. The risks to pregnant people just get bigger as their choices shrink. “Hospitals want to get out of making these decisions but they won’t be able to,” said Greer Donley, a law professor at the University of Pittsburgh who has studied the law surrounding abortion and medical emergencies. “They will see pregnant people who have life-threatening complications and no other options, and they’ll have to make the call.”

A year after the abortion that saved her life — and allowed her to know her life needed saving — Houshmand has vowed to never get pregnant again. After her abortion, when she met with doctors from the Wills Eye Hospital in Philadelphia, they told her the immunosuppression that happens during pregnancy had allowed a normally harmless virus that causes cold sores to run rampant, attacking her optic nerves and, possibly, her brain. 

Houshmand has had antiviral medications injected into her eye, and she’s gone through three surgeries. She is still legally blind in her right eye, and she suffers from PTSD. “I never want to live through the experience of not being in charge of my own body ever again,” she said. The risk just isn’t worth it.

When we spoke with her, Houshmand had a fourth eye surgery scheduled. It took place less than a week after the Supreme Court overturned Roe v. Wade. 

Maggie Koerth was a senior reporter for FiveThirtyEight.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.


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