When the U.S. Supreme Court overturned Roe v. Wade this summer, it became clear abortion bans like the ones in Oklahoma and Texas were here to stay. Both of those include exceptions for what lawmakers call “the life of the mother” — medical emergencies.
Reproductive health doctors began the warnings immediately.
Dr. Maureen Phipps, the CEO of the American College of Obstetricians and Gynecologists, discussed the threat in a briefing the day that the Dobbs v. Jackson decision dropped.
“It will leave physicians looking over our shoulders, wondering if a patient is in enough of a crisis to permit an exception to a law,” she said.
Oklahoma passed several laws this year that ban abortion. Senate Bill 612 makes performing one a felony, punishable by up to 10 years in prison and $100,000 in fines. House Bill 4327 opens anyone who performs or helps someone get an abortion up to civil liability. That means anyone in the state can sue them for up to $10,000.
Both laws have the same definition for medical emergency: “a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury.”
Vicki MacDougall, professor emeritus of health law at Oklahoma City University’s law school, said the law hinges on the word “endangered,” but doesn’t make its definition clear.
“How serious a condition does it have to be?” she said. “Is a statement from the doctor sufficient? Well, attorneys are going to be running around in circles trying to figure this out.”
She said it’s common for definitions to be more explicit — for example, listing specific conditions that would count as medical emergencies. Because the laws don’t do that, it’s kind of anyone’s guess. And with Oklahoma’s new bans — especially SB 612 — the stakes are high.
“I mean, $100,000?” she said. “I don’t have that lying around. And it says not to exceed ten years. Well, that would not be a piece of cake.”
Texas doctors face a similar situation. Their bans essentially match Oklahoma’s; the lawsuit-enforcement ban came in 2021, and a law criminalizing the procedure went into effect with Roe's reversal this summer.
Dr. John Thoppil, an obstetrician and gynecologist in Austin, says it’s subjective. Although the vast majority of OB-GYNs in Texas weren’t performing elective abortions in the first place, they’re all having to consider what their personal comfort level is.
“I kind of go by the common sense principle, saying that if I have strong medical data backing what I do, I am comfortable with that,” he said.
As an example, he pointed to a famous case in Ireland, which became a flash point in the largely Catholic country’s abortion debate. In 2012, a 31-year-old dentist died of sepsis after she began to miscarry her 17-week-old fetus. Doctors denied her an abortion, given the country’s ban on abortions when cardiac activity can be detected.
Another factor in his assessment: local politics.
“Thankfully, I also live in a city where, you know, the district attorney says we will not prosecute anybody for this,” he said.
Legally, district attorneys have discretion in which cases to prosecute. According to NPR, 88 prosecutors across the country have vowed not to prosecute abortions, calling the criminalization of abortion care “a mockery of justice.” Travis County District Attorney José Garza, who represents Austin, Texas, was among them.
“Those two factors, give me a level of comfort that someone in a rural place in Oklahoma or Texas may not have that same level of comfort,” Thoppil said.
To be clear, that lack of comfort for doctors can have dire consequences for patients. Texas’ lawsuit-enforcement ban has been around longer, so we have a clearer picture of its effects. A group of researchers interviewed 25 OBGYNS in Texas about their experiences post-Senate Bill 8 andreported the findings in the New England Journal of Medicine.
Some said support staff like nurses and anesthesiologists refused to administer miscarriage care because that involves evacuations, and they were afraid of getting sued. Some said their hospitals stopped offering treatment for ectopic pregnancies — a life-threatening condition in which the embryo implants outside of the uterus and can never be viable. That condition, like an early water break, can cause the patient to die of sepsis. Another said fear of lawsuits forced providers to delay care until patients were, "on death’s door."
