This is part one of a two-part series.
"How imminent must death be?” That’s the question Dr. Lisa Harris, an obstetrician-gynecologist (OB-GYN) and faculty member at the University of Michigan, needs answered. She wants to be able to provide the best possible emergency care to pregnant patients, care that might—in the minds of forced-birther extremists—be considered an abortion. Harris needs to know because the answer will tell her if she could end up in jail for trying to save a patient’s life.
There are many reasons why people decide to have an abortion. It’s no one’s place to judge them—the decision should belong to the patient. Although we’re going to focus here on a particular set of circumstances where an abortion, or care that in some way might resemble an abortion, is an absolute medical necessity, this is not to say that all other abortions are somehow less acceptable. The bottom line is that the newly implemented radical laws restricting abortion care harm people in intended and unintended ways, and it's an outrage.
Harris recently described in detail how she and her colleagues were preparing to take care of patients in a post-Roe v. Wade America, i.e., the America we now inhabit.
Absent clear policies permitting it, doctors may hesitate to treat patients with ectopic pregnancy, inevitable miscarriage, or previability rupture of membranes when fetal cardiac activity remains. Hospital pharmacies, doctors, midwives, and advanced practice clinicians will need to consider whether they’ll continue to stock and offer the best evidence-based medication treatment for spontaneous abortion — mifepristone and misoprostol, the same medications used in abortion care — whose use could bring accusations of criminal activity.
For example, as awful as a cancer diagnosis is under any circumstances, it’s even more dangerous for someone who is pregnant in a state where abortion is banned or severely restricted. (For just one example outside the U.S., a 16-year-old girl named Rosaura "Esperancita" Almonte Hernández died 10 years ago in the Dominican Republic—where abortion is illegal with no exceptions—after doctors refused to start her chemotherapy treatments because she was one month pregnant.)
Harris explained that "there are some cancers that the hormones of pregnancy make grow and spread faster, and people will choose to end a pregnancy because of that or because the treatment that their oncologist is recommending would be toxic or potentially lethal to a developing baby.” For every 1,000 people who become pregnant, one will get cancer during their pregnancy. This problem is widespread.
What happens to people in a state where abortion is banned, and traveling elsewhere is not a feasible option—a condition that disproportionately applies to those who are low-income, Americans of color, as well as rural Americans? As per Harris, when cancer patients are forced to carry to term, “that might mean their cancer is more serious and more widespread than early in the pregnancy, and so they may indeed have a higher risk of dying, but it's not a risk that's going to happen immediately—it might be a recurrence in months or years."
In spring 2021, Rachel Brown, a 36-year-old mother of two, found out on consecutive days that she had breast cancer and that she was pregnant. If she didn’t get aggressive treatment, the cancer might well kill her, even if not that day. But the treatment that would save Brown’s life would almost certainly cause serious harm to the fetus. She decided to have an abortion. Here’s what she had to say to The New York Times about the Supreme Court ruling that has taken that decision away from her and so many others: “I felt like … My life didn’t matter, and my children's lives didn’t matter. It didn’t matter if I lost my life because I was being forced to be pregnant.”
In an NPR interview, Harris spoke plainly about her fears in the broadest terms: "It's very frightening and confusing for physicians and the whole team that cares for patients to know, what can we do, what is okay and what's not okay?" She further explained that a condition may not threaten a patient’s life in the moment, but could do so in future: "There are many conditions that people have that when they become pregnant, they're okay in early pregnancy, but as pregnancy progresses, it puts enormous stress on all of the body's organ systems—the heart, the lungs, the kidneys. So they may be fine right now … but three or four or five months from now, they may have life-threatening consequences."
Dr. Louise King, an OB-GYN at Harvard Medical School and vice chair of the Committee on Ethics for the American College of Obstetricians and Gynecologists (ACOG), broadly condemned laws that threaten to punish physicians unless they “deprioritize the person in front of them and … act in a way that is medically harmful. Doctors will have no choice but to “watch somebody get sicker and sicker and sicker until some point—and where is that point?—where it's OK to intervene and we won't be exposed to criminal liability.”
On the matter of criminal liability, Dr. DeShawn Taylor, who owns and operates Desert Star Family Planning, a small clinic in Phoenix, Arizona, might well be even more vulnerable than a physician affiliated with a large academic hospital. She didn’t mince words on not allowing herself to be exposed to criminal liability, and drew on her own lived experience with racism as a Black woman:
I did not go to medical school to go to jail. I have no interest in performing illegal abortions ever. I'm just going to be honest. I don't have the complexion to assume the risk and say, slap my hand later. We see the people who have been criminalized already, the pregnant people who have been criminalized already. They have not been white. So I have no illusions about where I stand on the issue and what type of risk I can take and not take.
That’s three different doctors raising the same concern. Laws that put doctors in fear of losing not only their license but their freedom for practicing evidence-based medicine and caring for their patients the right way is—to use the terminology of medical ethics—seriously fucked up.
Doctors being worried about going to jail because of these inhumane laws is bad enough. Patients are worried they’ll die. For anyone who claims that’s alarmist, that it will never happen, well, the thing is—it already has. And it’s happened to more than one woman.
Izabela Sajbor was 30 years old. She hailed from Pszczyna, in the south of Poland. By profession, Sajbor was a hairdresser. She had a daughter named Maja who was 9. Sajbor was in the 22nd week of her pregnancy on Sept. 22, 2021, when her water broke and she was admitted to the hospital. The fetus in her womb had been diagnosed with such severe deformities, including Edwards syndrome, that it was unlikely to survive to term, and if it did, the life expectancy was not more than a few months.
In a place where abortion rights were enshrined in law—unlike Poland, which has a near-total ban—physicians would have immediately induced labor or done surgery to remove the fetus. Not doing so would put Sajbor at risk for infection and, even worse, sepsis. Her temperature spiked. She began to vomit. She started having convulsions. But as she expressed in text messages to her family, the doctors did not intervene because their focus was on the fetus, whose heart continued to beat.
“My life is in danger.”
“They cannot help as long as the fetus is alive thanks to the anti-abortion law.”
“A woman is like an incubator.”
All too prophetically, Sajbor wrote: “The baby weighs 485 grams. [A little over a pound.] For now, thanks to the abortion law, I have to lie down. And there is nothing they can do. They'll wait until it dies or something begins, and if not, I can expect sepsis.” She added: “I hope I won't get sepsis because then I won't leave this place.”
Sajbor did get sepsis, and she did not leave the hospital. Her fetus died first, at which point the doctors finally prepared to perform a Cesarean section. On the way to the operating room, her heart stopped beating. Sajbor’s mother asked the question many of you are asking right now: “How could such a thing happen to her in the hospital? After all, she went there for help.”
For its part, the hospital blamed the law that bans abortion: “It should ... be emphasized that all medical decisions were made taking into account the legal provisions and standards of conduct in force in Poland.” Urszula Grycuk, the international advocacy coordinator for the Warsaw-based Federation for Women and Family Planning, emphasized that "Izabela's case clearly shows that the ruling [banning abortion] has had a chilling effect on doctors." There have been other similar cases in Poland since the abortion ban, including one where another woman died.
In 2012, abortion had long been banned in Ireland, a strictly Catholic country where the church’s dictates on the matter reigned supreme. Dr. Savita Halappanavar was a dentist, born in India, who had moved to Ireland. On Oct. 21, at 17 weeks pregnant, she was admitted to the hospital in Galway after she “felt something coming down” and had “pushed a leg back in.” She was in “unbearable” pain. As per the official report on the case, there was no chance the fetus could survive. But it did not die right away.
Two days later, a doctor told her that because her water had broken, it was “inevitable” that she would miscarry. Halappanavar asked for the miscarriage to be induced, which technically qualifies as an abortion given that the fetus was alive. She was refused. On Oct. 28, she died of septic shock caused by infection.
Dr. Sabaratnam Arulkumaran, the expert who wrote the official report of the incident, related what happened: “Because the fetal heart rate was present all the time, the obstetrician did not do a termination. If someone decided that she had done it illegally, she would have gone to jail.” Please note how this echoes the fears expressed by the aforementioned Drs. Harris, King, and Taylor. As in Poland, the issue was the law, as Arulkumaran further explained: “It was a life-threatening condition, but they took the view of not doing anything because of the legal framework.” Unlike in Poland, the completely avoidable death of a woman sparked a movement that changed the law:
For many young Irish women, hers was the first tangible story of how the Eighth Amendment, which was introduced in 1983, could affect them, said Melissa Barnes, a 20-year-old medical student.
“When Savita died, that was kind of the point at which people my age, in that kind of young bracket, were made aware of what was going on,” Ms. Barnes said. “We weren’t even around when the Eighth Amendment was introduced.”
Stephanie O’Toole, another 20-year-old college student from Dublin, agreed.
“Her name was a catalyst for a crucial conversation,” said Ms. O’Toole. “She became a symbol of this fight for a generation of people.”
Halappanavar’s father, Andanappa Yalagi, recorded a video in support of the campaign to repeal the ban on abortion through a referendum in 2018. By a 2-to-1 margin, Irish voters voted to amend their constitution and repeal the ban. When the results were announced, supporters made sure to say her name.
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)