Jennifer Block is an investigative journalist and the author of “Everything Below the Waist: Why Health Care Needs a Feminist Revolution.”
Abortion is more criminalized and difficult to access than it has been in the United States in 50 years. But owing to medications and technology that didn’t exist in the pre-Roe era, early terminations are now overwhelmingly safe, even when illicitly obtained.
Today, the most dangerous outcomes are the result of procedures not happening.
In Texas alone, at least three harrowing tragedies have occurred since 2021, when the state passed the draconian antiabortion law known as SB8. In September of that year, 28-year-old Josseli Barnica lay bleeding in a Houston hospital bed. Her 11-week-old fetus had zero chance of survival, but physicians were waiting until there was no heartbeat — following the letter of the law — before they would treat her. Barnica died of an infection, leaving behind her husband and toddler. Porsha Ngumezi, mother to a 3- and a 5-year-old and excited for her third baby, was left to lose so much blood in June 2023 that her heart stopped. That October, 18-year-old Nevaeh Crain was so sick she couldn’t sit through her own baby shower. Two emergency rooms turned her away even after she screened positive for sepsis, because her 6-month-old fetus still had a heartbeat. At the third, clinicians were ordering a second ultrasound as her organs failed and she went into septic shock.
ProPublica, which investigated each of these deaths, recently analyzed hospital data and found that in Texas the rate of sepsis related to pregnancy loss has gone up 50 percent since the abortion ban, which awards $10,000 to people who rat out anyone who “aids and abets” an abortion. The Supreme Court’s Dobbs decision triggered another law that threatens life in prison and a $100,000 fine for performing a procedure.
“Dozens more pregnant and postpartum women died in Texas hospitals” than in years prior, ProPublica reported, raising the concern “that the same pattern may be occurring in more than a dozen other states.”
The Texas women, experiencing common, treatable complications of pregnancy, are the new archetypal victims of abortion’s illegality. Two women in Georgia have also died for lack of care, and there are likely others whose cases won’t be investigated or reported. Now the perpetrators of “botched procedures” are not back-alley butchers; they are medical institutions erring on the perceived side of caution — in deference to hospital risk managers rather than patients’ lives.
Fingers tend to be pointed at the laws, written by medically untrained ideologues, which purport to make exceptions for life-threatening emergencies yet are vague on details. But we should also be asking why hospitals and medical organizations are interpreting those vagaries so narrowly, in ways that imperil pregnant patients’ lives — what one legal scholar calls “a new and pernicious form of defensive medicine.”
“People are just presuming that they have to work within the constraints of the law,” says Anne Drapkin Lyerly, a professor of obstetrics and gynecology at the University of North Carolina. “And I find that somewhat surprising.”
In May 2024, Lyerly, who is a former chair of the American College of OB/GYNs ethics committee, published a paper on the “moral obligations of physicians in a post-Dobbs landscape.” She and coauthors call out hospitals for taking an “unnecessarily conservative approach.… Many state abortion laws are vague, and that vagueness can be exploited to maximize physicians’ autonomy, but some facilities have done the opposite.”
The consequence, says Carol Joffe, a sociologist who has studied the issue, is that “a woman of reproductive age in 1950 Texas was a hell of a lot better off than she is today.”
Procedures that are all called ‘abortion’
In each recent case of death, physicians withheld treatment that has been a staple of gynecological care for 150 years: evacuating the uterus. Not all miscarriages require medical attention, but some do, especially after the first trimester. The uterus, which draws blood to the placenta via an expanding network of vessels as a pregnancy grows, must ultimately expel all the tissue so that those vessels retract. Any tissue that remains prolongs bleeding and acts like a wick for bacteria. If an infection develops, it has a direct line to spread throughout the mother’s body.
Such complications led early gynecologists to develop a tool — the curette — to remove tissue that isn’t released on its own. Hence the longstanding procedure of dilation and curettage, or “D&C.” Today there are simpler and safer methods that use suction and require only local anesthesia. Infuriatingly to some, medical terminology — even insurance billing codes that were standardized in the 1980s — does not differentiate between these procedures or specify when complications warrant treatment.
“There is no code for pregnancy loss, period — it doesn’t exist,” says Sarah Prager, a professor of OB/GYN and complex family planning at the University of Washington. “All of the terms that we have to pick from include the word ‘abortion.’”
Like stamping the medical record with a scarlet letter, having to indicate “abortion” regardless of what prompted the action may make physicians in states with bans unnecessarily anxious. This also complicates insurance coverage, Prager explains, since in many states, neither Medicaid nor marketplace plans will cover elective abortion.
Removing a failing and dangerous pregnancy seems to have been less controversial, less politically charged, before Roe v. Wade than it is now.
“When I was trained in OB/GYN there was a very, very strong commitment to teaching people how to evacuate a uterus in any circumstance — and to do so discreetly,” Lyerly told me. Her mentors tended to be older men, “not your classic feminist advocates for choice.” But they had held the hands of frightened and lucid women as they were dying senseless deaths “and felt it was their duty to help us figure out how to take care of people, whatever the law said was allowable, with a patient-first mentality.”
In many ways, they had it easier. Before Roe, the laws weren’t as punitive as they are now, and enforcement was generally focused on lay “abortionists,” not upstanding physicians. Ultrasound technology didn’t exist — the fetal heartbeat couldn’t be detected as early and wasn’t being broadcast into exam rooms — so the fetus was more abstract and gestational dating was a fuzzier math. Lawrence Lader, a journalist and prolific documentarian on the subject, noted in his 1966 book “Abortion” that the treatment of miscarriage in hospitals is “seldom bothered by the police” and therefore not a source of fear for physicians. One told him, “My first responsibility is to save the life of the patient.”
Perhaps the most salient factor for physicians in the pre-Roe landscape was that “there was no real antiabortion movement,” says Joffe, a sociologist at the University of California San Francisco and author of “Doctors of Conscience,” a 1995 book about doctors who performed abortions before the Roe decision. “There was nobody telling doctors if you terminate an ectopic pregnancy, you’re going to jail for 99 years. That just didn’t exist.” So when indications called for a D&C, “doctors could pretty much do what they wanted.”
For example, if a pregnant woman’s waters broke before the fetus could survive outside the womb — a common cause of second-trimester miscarriage — the doctor would simply tell their colleagues why they were ending the pregnancy and “the decision would be respected,” says Joffe.
Today, with the consolidation and corporatization of medicine, there are many more colleagues to convince. “I have a number of people that have to work with me on my team to get any one patient taken care of, from the front desk person to a phlebotomist to a nurse taking care of the person and so forth,” says Dawn Bingham, an OB/GYN in Columbia, S.C. If any one of those people is feeling hesitant, “it holds up the entire process.” Meanwhile, many hospitals are requiring a second physician to sign off (and expose themselves to possible scrutiny), a consultation with a hospital attorney, or a review by an ethics committee, she explains. “And depending on what is said there, the patient may or may not be granted that termination.”
Physicians today are not only in the crosshairs of political actors and a more eager carceral state. They’re also under more surveillance from their own institutions. Gone are the days when local OB/GYNs practiced solo with their own nurse, paper charts, and a door closed to prying eyes.
“It’s very hard to keep secrets within an electronic medical record,” says Prager. “If we’re looking at now versus 50 years ago, everything has changed about how medicine is practiced.”
‘You can break the law in this situation’
Through a voluntary survey of health care providers, the Advancing New Standards in Reproductive Health research program at UC San Francisco, documented 86 cases between Sept. 29, 2022, and Aug. 16, 2024, in which treatment “deviated from the usual standard due to laws restricting abortion.” Several clinicians described cases in which patients in their care suffered preventable complications because “our hands were tied.”
That point of view was echoed in a letter that more than 100 Texas OB/GYNs sent to state officials last November: “The nature of the strict abortion ban in Texas does not allow us as medical professionals to do our jobs. The law does not allow Texas women to get the lifesaving care they need and threatens physicians with life imprisonment and loss of licensure for doing what is often medically necessary for the patient’s health and future fertility.”
Anitra Beasley, an OB/GYN in Houston, told me that physicians should never have to weigh their own personal well-being “against doing the most appropriate thing for a patient.” Yet that’s the reality, she says. “Because if I make the determination that this is an emergency and some government actor says, ‘No this was not an emergency,’ then I’m also thinking about will I be going to jail, will I have to come up with $100,000 to pay a fine, plus associated court costs? Am I still going to have a medical license?” Beasley and other physicians even worry about being charged with a capital crime: “Am I going to die because of this?” she asks. Bills that would levy homicide charges have been proposed in Texas and other states, though none have passed.
One antiabortion talking point is that physicians are cynically overinterpreting the law to push “a political agenda on the back of tragic losses,” as one viral tweet put it. But that is a bad-faith take that ignores how far down the hierarchy of power physicians have moved, the history of antiabortion violence targeted at them, and how the laws undermine “reasonable medical judgment” by making it subject to criminal review.
“The entire profession of medicine has been disciplined into not doing things that someone else doesn’t approve first,” says Tracy Weitz, a professor of sociology and director of the Center on Health, Risk, and Society at American University. “And so why would we imagine that they would buck that entire system for something that potentially could land them in jail?”
At least two of the women in Texas experienced a complication that occurs in about 1 in 200 pregnancies. Life-threatening conditions are rarer than that, but the risk increases substantially for women who do not get timely care. It’s impossible to know how clinicians are reacting everywhere; if they’re quietly resisting, they’re not going to broadcast it. Researchers also point out that each death represents an unknown number of “near misses” — which is true of maternal mortality generally — cases in which patients whose lives were threatened pulled through.
Kari White, executive and scientific director of Resound Research for Reproductive Health, told me it’s “really challenging” to glean from hospital data whether physicians followed best practices or hedged. “It’s usually only possible to see things that were coded and not necessarily anything else about what’s happened before,” she said. “So some of that storyline is inherently missing from those datasets.” A survey of 50 Texas physicians she helped conduct after SB8 took effect found it had a “chilling effect” on timely treatment.
Lyerly, the OB ethicist, told me she did not intend the paper she coauthored “in any way to call doctors out, because I think they’re in an incredibly difficult position.” The intention was more, “Let’s remind ourselves that law and ethics are not the same thing. The moral distress doctors are feeling is because there’s a real moral conundrum. The law is asking them to do something that’s unethical. You can break the law in this situation.”
Who Lyerly does call out are institutions — hospitals, medical and licensing boards, and professional societies like the American College of OB/GYNs — that “have moral obligations that they are not upholding,” she told me. For instance, institutions could decline to follow the advice of lawyers “who have not used their legal judgment to further the hospitals’ core mission of patient care,” Lyerly and coauthors write. Hospitals that do so, or “require ethics committees or lawyers to approve physicians’ decisions about when abortion care is medically required, or that otherwise perpetrate fear and uncertainty about the legal consequences of not obeying new abortion laws strictly, are morally complicit in the patient harm that results.”
The hospital that failed Barnica stated, notably: “Our responsibility is to be in compliance with applicable state and federal laws and regulations.”
We need a few brave physicians
Theoretically, a physician might make a grand gesture of breaking the law in order to test it. In 1938 in London, the surgeon Aleck Bourne openly risked life imprisonment by performing an abortion on a 14-year-old who had been raped. “I cannot draw a line between danger to life and danger to health. If we waited for danger to life, the woman is past assistance,” he testified. (A judge agreed.) In Minnesota in 1970, Jane Hodgson had a pregnant patient who tested positive for rubella, widely known to cause birth defects. Rubella was an accepted indication for a “therapeutic” abortion in other states, though not in Minnesota. After failing to persuade a federal court to allow her to perform a D&C on the woman, Hodgson did the procedure anyway. She was arrested at her office and became the first US physician convicted for performing an abortion in a hospital. (The Roe decision exonerated her while she was awaiting appeal.)
In general, however, pre-Roe physicians tended to fear law enforcement and restricted their own autonomy by instituting abortion committees to rubber-stamp therapeutic abortions. Those committees imposed quotas, and following World War II, the numbers of procedures performed safely in hospitals sharply declined and deaths caused by illegal procedures rose.
Lader reports one frustrated attorney claiming that “the profession has scared itself into a negative position, remaining ‘in substantial default through silence.’” Today, hospitals are reviving the abortion committee in the form of “ethics committees,” which Lyerly says are not behaving ethically at all. “For the most part, their role is to protect institutions rather than to protect doctors, and their commitments are not to ethics, they’re to risk aversion.”
Weitz, who cofounded the abortion research program at UCSF, says what few others will say out loud: “I think these professionals need to stand up and do the right thing. I think physicians need to actually take care of patients and let the chips fall and see if somebody is actually going to go to jail…. We need a few brave physicians to test the laws.”
Maggie Carpenter, a doctor in New York who is the founder of the Abortion Coalition for Telemedicine, is the first physician to face criminal charges for prescribing abortion pills to patients in another state. She faces charges in Louisiana, and a Texas judge has hit her with a $100,000 fine. Both cases will test the strength of so-called shield laws intended to protect such actions.
Dawn Bingham, the Columbia, S.C., OB/GYN, is the lead plaintiff in a first-of-its-kind lawsuit challenging her state’s abortion ban on the basis of conscience — a concept traditionally deployed to protect clinicians’ ability to refuse to perform a procedure.
“This is affecting our ability to practice our faith,” says Bingham, who is an elder at her Presbyterian Church. The suit also charges that the law doesn’t fulfill its due process obligation to define the crime, instead deferring to “reasonable medical judgment” that can be deemed criminal after the fact. Says Bingham, “What the legislators have done in essence is to make fear, not reasonable medical judgment, the lowest common denominator in taking care of patients.”
These and other cases are encouraging. But courts move slowly. Infections spread quickly.
So does fear.