Tim Hoff, MA: Welcome to a special edition of Ethics Talk, the American Medical Association Journal of Ethics podcast on ethics in health and health care. I'm your host, Tim Hoff.
This multipart series examines ethical and clinical fallout from the recent United States Supreme Court holding for Dobbs, State Health Officer of the Mississippi Department of Health v Jackson Women's Health Organization. This decision upends 50 years of legal and clinical precedent established on abortion, privacy, and other rights foundational in everyday health care practice. Dobbs challenges clinicians and organizations everywhere in the US in unprecedented ways, including whether, where, and when to defy law to give their patients standard health care, and how far to go to offer standard care to patients who are medical refugees from restrictive states.
Abortions, when delivered by health care professionals, are safe, common, and until recently, legal. Whether as a request to end an unwanted pregnancy or in response to complications indicating risk to a patient's health, abortion is part of standard health care practice. In places where abortion care is restricted or banned, abortions will likely remain common. We know this from global research showing that regardless of changes in legality, abortion frequency remains steady, but that medical risk to women and legal risk to women, clinicians, and organizations increase when abortion is restricted to unduly infringe upon decision making and care planning that have, up until Dobbs, taken place within patient-clinician relationships.
Regardless of legality, abortions are often clinically indicated standard of care (sic) for pregnant people, especially in response to incomplete miscarriages or secondary to fetal development anomalies or complications. And regardless of legality, all clinicians are still legally and ethically required to practice according to standard of care. Though in restricted states, this is now extremely difficult for most clinicians who are motivated clinically to continue to provide safe abortion care and motivated ethically to prioritize their patients' best interests above the intrusive demands of an unjust law.
When abortions occur naturally and spontaneously, they're called miscarriages, which are common. Once straightforwardly managed according to clinical indications, miscarriage management in restricted states now requires navigating a labyrinth of unscientific legal requirements. For example, restriction exceptions, allowing abortion to “save the life of the mother” de facto incentivize clinicians to watch their patients decompensate, that is become increasingly ill, to the point at which a complication formerly safely managed with an abortion becomes a life-threatening emergency. Though it is worth noting that these kinds of exceptions are increasingly rare, as many have or look to simply ban abortion without any nod to a pregnant person's right to life or to a clinician's duties to do no iatrogenic harm and to provide standard of care.
In this series we'll cover what students and clinicians need to know about how the changing legal landscape of abortion influences their practices. This series also considers how restrictions will influence health professions and a generation of students and trainees now at risk for possibly never learning how to manage, according to standard practice, complications from one of the most common human experiences: pregnancy.
Back with us for Episode Four is Professor Katie Watson, an associate professor of Medical Education, Medical Social sciences, and Obstetrics and Gynecology at the Feinberg School of Medicine at Northwestern University in Chicago, Illinois, where she is also a faculty member in the Medical Humanities and Bioethics Graduate Program. Professor Watson joins us to consider key questions about risk management for clinicians trying to practice and for patients trying to stay healthy. Professor Watson, thank you for being on the show today. [music fades out]
Katie Watson, JD: It's my pleasure, Tim.
Hoff: In the past few episodes, we've talked about how patients with means will likely be traveling from restricted states to standard-of-care states to obtain abortion care. How should interstate referral systems be initiated, structured, and operationalized by clinicians and organizations to promote equity, and to, at the very least, make sure health outcomes for pregnant people don't get more inequitable?
Watson: Well, the premise of your question, I think, first needs to be named, that these structures should be developed. And there may be clinicians or health organizations in restricted states that say, okay, we're not going to participate. And I think that's a mistake. There will be a few states that will need…where clinicians will need to review their aiding and abetting laws carefully with hospital counsel or other legal counsel for their organization. However, the premise should be that the goal is to get patients the care that they need that is legal elsewhere and that the patient wants and is a standard of care by ACOG guidelines and other medical guidelines.
So, what we need here is the interstate version of a warm handoff, so the idea where you don't just say, “Call a specialist,” but you give them a name. And ideally, you tell that person you have a relationship with that referral source, and you tell them that this patient is coming so the patient isn't cold calling themself. In a perfect world, the health care organization is, or the health care provider is, the one making the call to help facilitate that transfer of care. So, that requires relationships. From clinic to clinic, there are abortion clinics that are, I think, developing kind of sister clinic relationships being careful about antitrust laws and that sort of thing, but just trying to have a couple of relationships where they can pick up the phone and say, “I have a patient. Do you have openings in your schedule,” so the patient isn't the one making 27 phone calls, trying to find a place that accepts her insurance, if she has insurance, that has an opening in time for her to access care.
It's also the case that more medically complicated or unstable patients are going to need hospital-based care in other states. So, for example, in a state that has a ban or a very restrictive policy except in the most extreme situations where someone's life is at risk, the hospitals in their state might be fearful of doing the abortion until she is actually dying. But that's just horrific care when you know this is the trajectory of her illness and that if you do the abortion now, you avoid that situation. So, having those hospital handoffs is going to become very important.
Another aspect of this is helping patients pay for it. And often in health care, and I'm so sympathetic to health care providers who say, “I can't figure out 200 different insurance plans.” Well, what you need to know is if your state has banned abortion, they've probably made a ban on private insurance paying for abortion, and they probably don't have Medicaid coverage. So, this one's easy. Assume your patient's paying out of pocket. And there are funds that are donor-driven funds that help patients pay for procedures, and then there are practical support funds that help patients pay for or find lodging in this city they're going to show up in and gas money to get there or money for a plane ticket. And having your support staff understand what are those sources, again, so your patient is not delaying and making 200 phone calls herself to figure out, how am I going to pay for this? How am I going to get there? How am I going to get child care? To get her plugged into the existing systems.
So, now, Tim, let's add the new landscape of our patchwork where we have what I think of as free states and forced motherhood states. Now people have to travel even further to get an abortion in the first trimester when states are banning. We are going to have more and more second trimester abortions. It's just how it's going to turn out because of the delays and the travel. And those who are already in a later group might be later still. When you've asked about equity, I think we have to integrate the structural realities into our ethics analysis and our attitudes toward second trimester abortion to serve the most vulnerable patients.
Hoff: As you were pointing out, one of the effects of restricting abortion access is going to be pushing that time frame in which abortions tend to happen later in pregnancy, potentially. Additionally, it'll likely consolidate abortion access in standard-of-care states. So, how should clinicians and organizations prepare for that increased demand for safe health care?
Watson: You're asking how should the clinicians in the receiving states prepare?
Watson: And I think some of it's just, gosh, incredibly, it makes me think of MASH units, except this is going to last longer than that. They are currently, I mean, many of them are already doing this, looking for ways to expand their hours and/or their physical space so they can see more patients in a day or a week. Some of them are considering having Sunday hours or being open from 8 to 8 PM, which requires multiple shifts of health care workers, rather than just are you on this day or not? And they, too, are developing those personal relationships if they didn't have them before with the abortion funds that support access--but with out-of-state funds as well--funds they may not have had relationships with before.
It's also the case that the sort of social work and counseling demand—I don't want to say burden, but—might be greater. When someone is coming to you for an intimate procedure around their reproductive life, some patients need more support than others, that this is a significant turning point for them. When someone has had to escape an environment of illegality, which communicates to them that they are criminal and that they're doing something awful, and they have had to overcome the barriers and make a journey to your office, this is no longer just a medical procedure. It is a medical procedure, but it is the culmination of an incredible amount of work and, whether it is felt or not, an attempt to shame and stigmatize. And so, these also might be higher-need patients on a psychological and emotional level, not because abortion itself is harmful to women's mental health. Again, the Turnaway Study and other studies have just proven over and over again the primary response is relief, and regret is not a feature for the people in these studies. But that the powers that be, the structure might make it feel that way, right? So, I think that that is another thing to prepare for.
And then lastly, as I said, getting ready for these later, shifting the statistics to later procedures. Later procedures take more time than someone at six weeks. That procedure takes five minutes. A second trimester procedure takes longer. And so, that's a booking issue, you know, how you schedule your time. And then I've spoken to people in access states, standard-of-care states, trying to talk to their hospitals and hospital-based environments. And hospitals are like, well, we don't have more OR time, and their response, hey, remember COVID? They're coming anyway, whether we have room for them or not. Do you want them to sleep on the sidewalk in line? Like, get ready.
Hoff: Mmhmm. Yeah. I think you were right to break out the fact that that question focused on people who are able to travel. So, let's shift that focus and talk about the folks who are going to stay local and do perhaps illegal things, or what will now be illegal things, in an effort to seek abortion care. So, it seems like that's going to increase the need for emergency responses. So, how should organizations and emergency clinicians prepare for that eventuality?
Watson: Well so, in restricted states, again, organizations should prepare to support their patients who need abortion care by helping them get to other states where they can receive it. A second category of patient will access medication abortion illegally through the Internet…through Internet pharmacies. And so, first of all, just understanding medication abortion and how it works would be important. And clinicians counseling pregnant people who want to end their pregnancies, again, would have to look at aiding and abetting laws. But in states that don't criminalize the person who does a self-managed abortion, to be able to tell them, “I'm not telling you what to do, but I know many people who are seeking this. Look at these three websites, which research shows are sending quality medication, like, you're getting what you think you're getting. And some people call If/When/How for legal advice, and some people call this hotline for medical advice during their procedure.”
And giving people the information, but like a public health approach where you say, “I know you're going to do this at home, and I want to do whatever I can to make it the safest experience possible.” So, I think getting educated on medication abortion for the average clinician is important and letting people know. Getting educated on the statistics about how incredibly safe it is, so people aren't terrified knowing that if they got the medication that they think they got. And there's (sic) so many pharmacies, studies have shown, that are sending what they say they're sending. It's a really interesting chemical analysis studies (sic)of multiple pharmacies that they can be safe at home.
Now, I recently read a study that said 50 percent of all current ER visits for post-abortion complications only required watching and waiting and absolutely no intervention. So, people get scared. They're home, they're bleeding, they're cramping if they're doing…a medication abortion is like having a first-trimester miscarriage at home. And it hurts, and people have a range of experiences and a range of amount of bleeding and just want to know, is this normal, or am I having a problem? And so, emergency departments and probably, potentially urgent care centers, will see, I imagine, more patients coming in wanting to know, is this normal? But then being fearful, are they safe from criminal sanction when they come in?
So, a little bit…some thoughts I have on that are the treatment of any kind…say someone is having a complication that they have retained products of conception. It didn't pass completely, and they're still bleeding and need to have an evacuation procedure. That's the same as any kind of natural, spontaneous miscarriage. The medical treatment's exactly the same. So, number one, there's no reason that an emergency personnel needs to know what's the source of this pregnancy loss. So, they might adopt a don't ask, don't tell policy in states with bans. And they might communicate that warmly in ways such as saying to a patient, “I treat everybody who comes in here equally and with compassion. I don't ask you why you're losing this pregnancy because I don't need to know. And I'm going to treat everyone exactly the same, and you are safe with me.” And just helping the patient know this is a safe zone. It's a confidential zone. And there's a wonderful article that I'd refer people to in the New England Journal of Medicine, I believe, 2020, by Harris and Grossman on the medical aspects of managing pregnancy loss in the emergency room that's really good.
Now, the other aspect is just good old-fashioned confidentiality. And we have some case record now of emergency room personnel calling law enforcement when they believe someone has done a self-managed abortion. There was a recent case in Texas in which a young woman came in bleeding and ended up arrested, and her photograph and name were all over the national media. I believe she spent 48 hours in jail, and then she was released, and the charges were dropped because there were no charges. Self-induction is not a crime in Texas, yet somebody in the emergency room with no legal justification whatsoever—and even if that had been a crime, I would argue no legal justification whatsoever—violated this person's confidentiality and privacy in the most dramatic and disgusting way. I mean, that's the only word I can use for it, right? That this abortion exceptionalism…that somehow, this woman deserves penalty and shame for seeking medical care.
And I want to share just it's Ethics 101, but the American College of Emergency Physicians, of course, has, like so many specialty groups, has its own ethics code. And it notes very explicitly, and this is a quote, “Personal information may only be disclosed when such disclosure is necessary to carry out a stronger, conflicting duty, such as a duty to protect an identifiable third party from serious harm or to comply with a just law.” And I find that fascinating, of course, because even if there were a state that tried to use emergency room personnel as law enforcement agents, I think that that would be an unjust law.
So, the tradition in emergency medicine is if someone comes in with a belly full of cocaine balloons because they swallowed them as a courier and then they got scared, you don't call the police, that this is a safe space. The same statement says one essential virtue of emergency physicians is trustworthiness. Sick and vulnerable emergency patients are in a dependent relationship, right? The idea is that no one tells their intimate medical story to a stranger unless they really need help. And so, this does, the maintenance of confidentiality, is part of that trustworthiness. And so, I just think abortion is unique in many ways, but there's so many ways it's similar to or the same as other health care. And we can't lose that in states with restrictions or bans when people come seeking emergency care. And lastly, people will do unsafe things as well, and they will need…it will be obvious that they tried to end their own pregnancy, and they need as much or more, care and compassion.
Hoff: Mmhmm. Yeah, it sounds like it might be good to look towards sanctuary health care or hospitals that have adopted policies to protect, for example, undocumented immigrants where they come in, and if that information is not medically relevant, which it almost never is, it's not part of the conversation. Or you make sure that the person knows, like you were saying, that the clinic is a safe space where they treat everybody regardless of any particular status.
Watson: And you make it clear to your staff.
Watson: To use the ICE analogy, the waiting room of an emergency room is a public space, and ICE officers can come in there. But once a person is back in any kind of triage or exam room, that's a private space, and they may not come there. And having that clarity of, yes, this is a safe and private space where you can tell me the intimate stories and the vulnerable details of why you got in your car and came here to talk to a stranger, and you're safe here.
Hoff: Since extremist advocates and legislators in restricted states are seeking to criminalize pregnancy risks, outcomes, and losses that are, from a clinical standpoint, physiologically normal, it seems like clinicians should know how to best protect their patients from potential legal ramifications. So, which key clinical and ethical factors should good clinicians be able to discern and document in order to mitigate patients' legal risks in these kinds of cases?
Watson: I think I would take a different tack because the impression of the question is if I think this is a spontaneous miscarriage, how can I, what can I do to document to keep her safe from the abortion police? And I think I'd go the other direction and say as a clinician, pregnancy termination is pregnancy termination, and whether it was terminated by nature or a human decision to swallow a pill, I'm here to give a person whatever follow-up care they need because that ship has sailed at this point. The way to not have that confused with medication abortion is to make no effort to separate them and to defend all women. Because then we get into this idea that health care providers should be protecting the good women, and no one should be getting, in my estimation, prosecuted for this. And because you can't tell the difference right now, yes, some people who had spontaneous abortions, the medical term for a miscarriage, will be caught in the dragnet. I mean, they will be suspected. And so, some people find that more sympathetic because they didn't “do anything.” I am of the…I mean…I think that's horrific, but I don't think anyone should be caught in this dragnet. So, I want to resist the categories of good miscarriages and bad ones and good women and bad women. And so, I would say for health care providers, just realize what game you're being pulled into and step away. That's not what doctors do.
Hoff: There are many ways in which a new legal precedent about abortion care prompts social, cultural, ethical, and clinical reconfiguration of what constitutes quote-unquote “normal.” So, what should matter clinically and ethically to how clinicians and organizations in standard-of-care states and in restricted states define and reorient themselves to what we think of as “normal” pregnancy risks?
Watson: Well, that is a really interesting question. I want to say at the outset that when you don't want to be pregnant and the government has forced you to continue your pregnancy, none of the risks are normal. They may be biologically normal, but we are social creatures living in these structured social relationships, and we have the safe pharmaceuticals and medical procedures where women, for a half a century, have had a constitutional right to end their pregnancies and not endure those risks. And so, I know your question is leading elsewhere, and I want to address that, but I just want to say this is not normal. What the Supreme Court did is not normal. And I think as clinicians and ethicists, we both have to work in the now and adjust to the new reality and accommodate the new circumstances that the patients and clinicians find themselves in and maintain a dual perspective that this is not acceptable, this is not standard-of-care medicine, it is not normal, and it cannot stand. We have to both work within it and not get used to it, right? And that's a funny place to be as academics, as clinicians, as ethicists.
The medical risks, when we think of what's a normal pregnancy risk, the medical risks may become more dangerous. So, for example, I mean, pregnancy comes with medical risks. So, we've all heard the statistic that you're 14 times more likely to die of pregnancy and childbirth than you are of having an abortion. I mean, pregnancy is an incredibly taxing state on the body of a person with a uterus. And the fact that people do it joyfully and voluntarily all the time doesn't change that medical profile. And there are people for whom it's more dangerous than others because of underlying conditions they have or conditions that are revealed during pregnancy. And so, the medical standard of care when you discover those kind (sic) of conditions is to counsel the patient, let them know what are the odds of a successful pregnancy, what are the odds of death from this pregnancy, the odds of harm to your major organs, given whatever your underlying situation is and how these are working together. And when the patient says, “I don't want to undertake those abnormal risks,” to offer pregnancy termination. That's just standard of care.
In restricted states, either that patient has to get out of state or wait until their symptoms fit whatever the state's life and health exception is. And for some of those conditions, they can be recognized in the first trimester, and a termination can happen before the person experiences the harm of the condition. But they don't manifest until the second trimester. So, do you have to wait in those states? And the answer may be yes, if the person stays in the state, until you actually see the symptoms, and she gets into a risk profile where you can say this pregnancy is threatening her health.
So, I'll share that I spoke with a maternal fetal medicine specialist in Texas recently who was very upset because the six-week ban does allow abortions beyond six weeks for health reasons, risk to a patient's health. So, the example of PPROM, someone's membranes rupture, let's just say at 18 weeks, this pregnancy is not going to continue. The fetus is unviable. But there's still a fetal heartbeat, so it fits the statutory definition of an abortion past six weeks. But the patient can become septic and die. But they haven't yet, and there's still a heartbeat. So, they have to just sit and watch this patient and wait for her to get a temperature, wait for her to get an infection that is serious enough that it meets the state criteria because they've got to send…it's got to be signed off by two physicians, and they have to send separate paperwork to the state justifying the abortion, which has a chilling effect. It scares them. And they have to wait for her to get sick enough to qualify but not so sick that they can't save her life. And that is horrific medicine and horrific for the doctors who are like, I know how to. Why? Why would we let her sit here under observation and not do what we know how to do? And so, are we going to call that a normal complication of pregnancy? That just can't be our medical system.
The last piece is when we talk about normal pregnancy risks now, there are legal risks to being pregnant. And there were before definitely for people accused of substance use and other issues, so I don't want to suggest it's brand new. But there will be legal risks, as you said, with spontaneous miscarriages being misunderstood. There will be risks for people who are scared to travel out of state. So, if you're in Illinois and pregnant, and your employer wants you to go to Texas for a work thing, should you go, or must you stay a hostage in your own state? So, there's employment risks. Do you want to take a new job in Texas? [theme music gently returns] Maybe it's a fabulous job, but as a person of reproductive age, you say, “That's scary to me. I don't want to be there.” So, is that our normal pregnancy risk? You have to consider a lot when you decide whether to become pregnant or whether to continue a pregnancy. This is going to add new “risks,” social, legal, and medical, to our list.
Hoff: Professor Watson, thank you so much for being on the podcast. I always appreciate your insights and your repeated contributions to the Journal.
Watson: Thank you so much for having me and for covering this important issue.
Hoff: That's all for this episode of Ethics Talk. Thanks to Professor Katie Watson for joining us. Music was by the Blue Dot Sessions. Join us next time for our final episode in the Abortion Care Podcast series, where we'll discuss observed decompensation as a post-Dobbs clinical and ethical phenomenon and its influences on health professionalism. Talk to you then.
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