In early October, an Idaho woman 20 weeks into her pregnancy went to the emergency room after her water broke about five months early.
When the water breaks prematurely, an infection can develop and infect the fetus, placenta and other fluids. At that stage of pregnancy, the threat of infection becomes a ticking clock for everyone involved.
And in this case, time was already running out.
At 20 weeks, there is virtually no chance a fetus can survive outside of the womb even with medical intervention — the heart and lungs are too immature. And once an infection reaches the uterus, it is systemic, so there isn’t enough time to allow the fetus more days in utero.
The condition can progress to a blood infection called sepsis within a matter of hours, then septic shock, which can cause organ failure in as little as 12 hours, according to medical research. More than one quarter of patients who develop sepsis die. And if the patient survives, merely having the infection can leave them with permanent organ damage and other long-term health effects.
In another state, a doctor would be able to induce labor and let the patient deliver if that was their wish, then offer palliative care so the parents could hold their child until it passed.
But in Idaho, a state with a strict abortion ban, the doctor had limited options. The law does not allow for termination to preserve a person’s health, only to prevent death. And hours could pass before the hospital’s legal, administrative and medical teams might approve the decision to terminate the pregnancy and properly care for the infection.
So rather than roll the dice, the doctor ordered the woman transferred in the hospital’s small airplane to Salt Lake City, Utah — a state that has an 18-week ban, but also an exception to preserve the pregnant person’s health.
It’s a scenario physicians have warned about in the year since the Dobbs decision, when 14 states implemented near-total abortion bans. Doctors in ban states, including those with health exceptions, have said the exception language is written so vaguely that it is essentially meaningless, and hospitals have adjusted their policies to protect doctors from potential criminal charges and loss of medical licenses. Several states with a general health exception don’t include fatal or life-limiting fetal anomalies.
On that day in October, the stakes felt especially high for physicians in Idaho. In a 12-day period, the U.S. 9th Circuit Court of Appeals struck down, then reaffirmed, an order protecting doctors from prosecution under the state’s abortion law. Judges initially ruled that the law’s exception permitting an abortion to prevent the pregnant person’s death was sufficient for ER physicians to avoid violating the federal Emergency Medical Treatment and Labor Act — known as EMTALA. But the ban does not include a health exception, while EMTALA requires ER physicians to provide a patient with stabilizing care or risk losing Medicare funding, potentially putting the two laws in conflict. On Oct. 10, the full court restored the protection for now.
In the span of time between the two rulings, 11 St. Luke’s patients were transferred for pregnancy-related complications, said spokesperson Christine Myron, which is a typical amount of pregnancy-related transfers in that time frame. Seven were within the hospital’s network and four were sent out of state.
The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with abortion bans — Idaho, South Dakota, Oklahoma, Arkansas, Wisconsin and Mississippi — do not have language in their laws that would allow for abortion to protect a person’s health, only to prevent death.
In all five states, legislation has been drafted to add a health exception, and in many cases, it is Republican lawmakers who are coming forward with proposals to add it. But with ongoing court battles, partisan fights between Republicans at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts have failed during each state’s respective 2023 legislative sessions.
Idaho Republican lawmaker: Health exception issue ‘has to be dealt with’
Idaho’s Legislature nearly advanced a bill that would have added an exception for an abortion to be performed “to treat a physical condition of the woman that if left untreated would be life-threatening.” Rep. Brent Crane, who took office in Idaho’s House of Representatives in 2006 on the promise of advocating for anti-abortion legislation, worked on the bill for months with the founder of Idaho Chooses Life and the Idaho Medical Association.
The night before the bill was scheduled to receive a hearing in the House State Affairs Committee, Idaho Republican Party Chairwoman Dorothy Moon sent an email to the party’s distribution list that said the legislation was the medical association’s attempt to bring abortions back to Idaho as part of a “closed-door, back-room deal.” She called the association a “progressive trade organization” with doctors educated “in some of the farthest left academic institutions in our country.”
The Idaho Medical Association has more than 4,000 members, half of whom are actively practicing physicians and others who are retired physicians, physician assistants, nurse practitioners and medical students.
The email included the names and phone numbers of the committee’s Republican members and encouraged recipients to voice their opposition to the bill. The following morning, Crane pulled the bill from the agenda, and the version that became law did not include the health provision language. In the following months, more physicians and maternal-fetal medicine specialists have left the state, with some citing the abortion laws as the reason for their departure.
Right to Life of Idaho, the state’s chapter of the National Right to Life Committee, also expressed its opposition to the bill on Facebook, with a late-night post saying the bill was a last-minute attempt to weaken abortion restrictions. The post named the Roman Catholic Diocese of Boise, the Idaho Family Policy Center — a religious lobbying organization that led the efforts to pass several laws related to abortion since 2020 — and the Idaho Republican Party as joining them in opposition.
The post was signed by Kerry Uhlenkott, the group’s legislative coordinator, and Megan Wold, a volunteer lobbyist for the group. Wold is married to Theo Wold, who at the time was Idaho’s solicitor general in Attorney General Raúl Labrador’s office.
Right to Life of Idaho did not respond to a message seeking comment, but Moon said in an emailed statement to States Newsroom that she did not consult with Megan Wold or any other pro-life group prior to her email blast, and instead consulted the state’s party platform, which says human life begins at conception and shall not be infringed.
Crane said his decision to pull the bill was a tactical one, because there was disagreement among anti-abortion groups and a lack of support among legislators as a result. Moon’s email certainly had an effect on the decision, he said, but it wasn’t the sole reason.
“(The bill) was going to force lawmakers to have to make the difficult decision between which group they thought had the proper interpretation of what they thought we should do,” Crane said.
At the heart of the disagreement, Crane said, is the idea that a health exception would be used to have “abortion on demand” by extending the definition of health to mental, financial or other forms of health, although Idaho’s law specifically excludes a suicidal pregnant person from qualifying for an abortion.
Rep. Brooke Green, a Democrat, said her caucus decided to walk out of the House chambers when the bill came up for a vote as a form of protest because it only included ectopic pregnancies and miscarriages as exceptions.
“It was one of those situations where we were damned if we do, and damned if we don’t,” Green told States Newsroom. “When you have an environment where you’re the super, super minority, these are the circumstances that play out.”
Crane said he’s continuing to work to find a compromise that will satisfy all anti-abortion groups and plans to introduce another bill in the upcoming legislative session in January.
“It has been such a long fought, highly emotional, very controversial issue, and people have staked out their positions on both sides that, because there are moral underpinnings to the issue, it feels to some folks that we’re compromising,” Crane said. “But we’re not going to be able to push this issue away and say we’re not going to deal with it. It has to be dealt with.”
Opposition to health exceptions goes back to Roe-adjacent court case
In Arkansas, Democratic Rep. Denise Garner sponsored a bill adding a health exception to the state’s ban near the end of March. Garner, a retired oncology nurse, said during the committee hearing that several health care workers shared with her stories about the “devastating effects” on patient health after the abortion ban went into effect. She told lawmakers about a 19-year-old college student who became pregnant while a contraceptive IUD was still inserted, causing the embryo to develop around the device.
Doctors delayed ending the pregnancy hoping it would spontaneously discharge, Garner said, but four weeks later, the IUD perforated the woman’s uterus, causing hemorrhaging and ultimately forcing doctors to remove the uterus entirely in a hysterectomy — ending her chances of giving birth to a child of her own.
“I can’t tell you how many times patients were diagnosed with cancer at the time of a pregnancy,” Garner said, and a pregnancy can make it difficult to continue chemotherapy treatments. “Let’s figure out a way to make sure that the specialists are able to do what they’re trained to do and take care of the health care of women who need these abortive treatments.”
The Arkansas Family Council immediately voiced its opposition, saying the legislation would effectively legalize all abortions in the state. Jerry Cox, Council president and founder, told States Newsroom his organization believes cultural issues should have a biblical worldview, including abortion.
Cox said the opposition to the bill stems from a case known as Doe v. Bolton, which was decided on the same day as Roe v. Wade in 1973. The U.S. Supreme Court struck down portions of a Georgia law that limited when and where someone could seek an abortion, namely that it had to be within a hospital with specific accreditations, and several layers of administrative and medical staff had to grant permission for the procedure to take place if it met the exceptions for rape, a fetus with severe abnormalities or a life-threatening condition. Given the ruling in Roe, the court said the requirements were unreasonable and ruled them unconstitutional on the basis of a right to privacy. That ruling invalidated many other state laws that had restrictions on abortion access.
Part of the written opinion in Doe also stated the Georgia law could not restrict the definition of “health” to physical health only, and said emotional, psychological, familial and age factors should also qualify within that definition.
To anti-abortion activists, that ruling effectively legalized abortion up until birth for almost any reason. The Doe ruling made clear, however, that a statute placing such limits on where abortions could be performed after the first trimester might hold up to constitutional scrutiny.
Prior to the Dobbs decision in 2022 that overturned Roe, less than 1% of abortions in the U.S. occurred after the 21st week of pregnancy. The ones that do happen after that stage are often related to fatal or life-limiting fetal anomalies.
“One would hope that doctors are not going to say, ‘OK, you’re going to start labor next week, but your health is bad, so we’re going to abort,’” Cox said. “I can’t name any cases where that’s happened, but that’s why over the years when people would say, ‘Well, we need a health exception in this abortion law,’ we’ve always resisted that, because it would pretty much then put it all back in the hands of the doctor.”
Cox said he knows doctors have to make judgment calls more often than the public is aware of, but since no doctors have yet been prosecuted under an abortion state law, then maybe the concerns are overblown.
“It makes me wonder if some people might think that’s a convenient way to justify doing the health exception, is to say that well, doctors won’t know what to do. It seems they’ve been able to figure it out pretty well,” Cox said.
Exceptions in abortion bans are ‘fake,’ Wisconsin Democrat says
For abortion rights advocates, even the states with health exceptions in their ban laws are causing harm, because often the laws lack clarity and do not account for instances of fatal or life-limiting fetal anomalies.
Jillaine St.Michel, an Idaho plaintiff in a lawsuit led by the Center for Reproductive Rights, was 20 weeks into her second pregnancy when her fetus was diagnosed with multiple developmental abnormalities of the organ and skeletal systems at a routine scan. It was so severe that the doctors asked St.Michel if she worked in a factory around any dangerous chemicals. She didn’t.
St.Michel had to spend three days in Seattle with her husband and 3-year-old child, which made her feel like she was doing something wrong.
“To have to go through that procedure and then go back to an unfamiliar hotel room, and have to heal and go through that process not in the comfort of your own home felt really degrading,” she said. “It felt really insulting that we had to go through that in such a demeaning way.”
Democrats in states like Wisconsin, which had a complete ban without exceptions until a recent court ruling prompted Planned Parenthood to resume its abortion services, think most Republican-proposed bills to add health exceptions are drafted in bad faith.
“The idea of exceptions to abortion bans, it’s absolutely fake, it’s false,” said Sen. Kelda Roys, a Democratic legislator in Wisconsin. “It’s intended to do one thing, and that is to give political cover to anti-abortion politicians who realize how deeply unpopular their position is and are desperately trying to scramble to appear less extreme.”
Wisconsin Republicans proposed legislation with a health exception in March, but Democrats immediately rejected it, calling it a publicity stunt that came just a few months after Republicans nationwide performed poorly in the 2022 midterm elections. It also came a little more than two weeks before a significant state supreme court election, which Justice Janet Protasiewicz went on to win in April. Protasiewicz openly campaigned in favor of abortion rights.
Wisconsin Gov. Tony Evers, a Democrat, also vowed to veto the bill if it passed, after which the bill died. While it passed the House, Republican Senate Majority Leader Devin LeMahieu said at the time that the Senate would not hear the bill because, “This is not a topic to use as a political football.”
National Right to Life helps guide legislative language to keep exceptions narrow
Ingrid Duran, director of state legislation for National Right to Life, also cited the Doe v. Bolton case as the reason why the organization is typically opposed to legislation that adds a health exception to an abortion law. Because the court in that ruling said that a physician could use their own medical judgment to determine what qualifies as “health,” any exception related to health must be narrowly tailored if it is to earn the NRLC’s support.
“This is a tale as old as time, as far as the different medical associations — or maybe just a pro-choice senator or representative — that will introduce language that would make it not as narrowly tailored and kind of leave it open and vague to the person performing the abortion’s interpretation of what ‘health’ could mean,” Duran said. “I think when we do that, it is very akin to the wolf looking after the sheep.”
Duran added that in states where abortions were regulated in later stages of pregnancy, “a handful of abortion providers terminated unborn life even after they met the biological marker of viability.”
Right to Life was heavily involved in the passage of a narrow health exception in Tennessee’s abortion ban earlier this year. The Tennessee Medical Association supported an initial version of the bill that included fatal fetal anomalies and allowed physicians to provide an abortion if in their “good faith” judgment it would prevent serious health consequences.
After Right to Life’s objections, a different version passed without fetal anomalies listed and instead said the physician must act with “reasonable” medical judgment. Duran said that term is preferable because to her, it reflects a consensus of the medical community, making it a more objective approach. Objections from the medical community must be taken with a grain of salt, in her view, because groups like Right to Life believe physicians profit from providing abortions.
“If you had a very terrible abortion doctor like Kermit Gosnell, you wouldn’t want to leave it up to him to determine what is his good faith medical judgment,” Duran said, referring to a former physician and convicted serial killer.
For attorneys who are advising medical staff like Peg Dougherty, deputy general counsel for St. Luke’s in Idaho, that distinction is important from a legal standpoint. Dougherty would prefer to see “good faith” wording because in other areas of medicine, physicians are trusted to provide the appropriate training and expertise to a patient.
“When it’s ‘reasonable judgment,’ the fact that it’s reasonable is going to go to community standard of care, so then you can hire experts who will challenge whether they met that community standard of care,” Dougherty said. “Doctors are treating patients and providing the best care for their patients that they can and they’re also working with their patient, they’re not trying to fabricate reasons for their patient to do something, ever.”