Nancy Davis said that when she learned this month that the fetus she was carrying had a rare and fatal condition, she and her partner were devastated.
“There’s nothing I wanted more than this child,” she said.
As they weighed their options, she said, her doctor referred her to an abortion clinic. Yet what ensued in the days after she made that wrenching decision to have an abortion shows how the U.S. Supreme Court’s ruling overturning the constitutional right to abortion has sown confusion and turmoil among doctors, families and officials across the country over when women can be granted exemptions to new state abortion bans.
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After Davis learned that the abortion clinic in Baton Rouge, Louisiana, had shut down, she returned to her hospital only to find out that she could not get the procedure there; the hospital has since said that the state’s new abortion bans raised concerns that doctors who treat patients with “medically futile diagnoses” remain in compliance with the law.
Davis said the hospital diagnosed her fetus with acrania, a fatal condition in which the fetus does not form a skull. “I’m carrying this baby just to bury it,” Davis said.
That specific diagnosis does not yet appear on the state’s list of acceptable conditions for an abortion exception.
This week, though, a Louisiana state legislator told a local TV station that she believed Davis’ abortion was permitted under a law that allows exceptions in cases when the fetus is unlikely to survive. Based on Davis’ case, the state health department said it would update its guidelines. But by the end of the week, it was still unclear if the hospital would perform the procedure.
“They threw me to the wolves. You’re telling me all this is wrong with the baby, but, ‘OK, figure it out on your own,’ ” Davis said.
She added later: “Being a mother starts in the womb, it starts when you conceive, when the baby is inside of you. And I wanted to do the best thing for my child.”
A spokesperson for Woman’s Hospital in Baton Rouge, where Davis received prenatal care, said the hospital could not comment on individual cases. Regarding the state’s abortions bans, the spokesperson, Caroline Isemann, said: “We must look at each patient’s individual circumstances and remain in compliance with all current state laws to the best of our ability.”
Davis, 36, who is now a little over 13 weeks pregnant, and her partner were struggling to understand their options, said Davis’ brother-in-law, LaMont Cole, a city council member in Baton Rouge. On Friday, he said they had hired Ben Crump, a lawyer who has represented families affected by police violence. Crump said in a statement Friday that Davis would travel to another state to get an abortion and was starting a GoFundMe account to cover the cost. But a drive to Florida, which would be the closest state to get the procedure, would be challenging for Davis, a stay-at-home mother to two teenagers and a toddler, while also working as a content creator showcasing Black hairstyles.
“Regardless of what Louisiana lawmakers claim, the law is having its intended effect, causing doctors to refuse to perform abortions even when they are medically necessary out of fear of losing their medical licenses or facing criminal charges,” Crump said in the statement.
Since the Supreme Court’s ruling in June, doctors, patients and state officials across the country have scrambled to navigate the new abortion bans and especially, they say, the murkiness surrounding exemptions. Complicating matters is a patchwork of new legislation that is often temporarily suspended because of legal fights.
More than a dozen states ban abortion from conception or within the first several weeks of pregnancy. Most of those bans include narrow exceptions to save the life of the pregnant woman or allow abortion in cases in which the fetus has a fatal medical condition. But interpreting those exceptions properly is an emerging issue for doctors and hospitals, who fear hefty fines and prison sentences if they get it wrong.
That has made some hospitals reluctant to treat miscarriages with procedures also commonly used in abortions. Other hospitals have created special groups of doctors and lawyers to help interpret new laws and decide when a pregnancy can be legally terminated. Some states require two doctors to sign off on an abortion that meets the legal standard.
The Biden administration took the unusual step of suing Idaho over its abortion ban, set to take effect this month, which the Justice Department said would prevent doctors from performing abortions that are necessary to stabilize the health of women facing medical emergencies. That lawsuit, the first federal suit filed to try to protect abortion rights, is scheduled to be heard Monday.
In announcing the suit, Attorney General Merrick Garland said that since the Supreme Court decision, “there have been widespread reports of delays and denials of treatment to pregnant women experiencing emergencies.”
In Louisiana, three bans went into effect after the Supreme Court decision. Those bans prohibit most abortions at conception or shortly after, but critics have said that they are vaguely worded.
Abortion became temporarily legal in Louisiana in July after a judge issued a restraining order that prevented the state’s bans from being enforced, agreeing with abortion rights groups that the statutes were too ambiguous. But a court then ruled that the bans could go back into effect during the ongoing litigation.
In affidavits filed as part of the lawsuit challenging the abortion bans, some Louisiana doctors expressed fears that the threat of being prosecuted would hinder their judgment or delay emergency care for pregnant women. One doctor also questioned whether they would face prosecution for treating patients with medication used to treat other conditions like depression, diabetes and migraines that could harm a pregnancy.
Some anti-abortion proponents objected to the medical exemptions, saying that even fetuses with fatal medical diagnoses ought to be able to live as long as they can.
Louisiana enacted one of the strictest bans in the country and has rare bipartisan support for abortion bans. The legislator behind the latest ban is a Democrat. Gov. John Bel Edwards, a Democrat, opposes abortion with some exceptions and signed the latest ban into law.
Like most other states with abortion bans, Louisiana criminalizes the procedure and prosecutes providers: Doctors and others can face up to 15 years in prison if convicted.
In Louisiana, the newest abortion ban makes exceptions to save the pregnant woman’s life and for a list of two dozen specific medical conditions that would be fatal to the fetus. Guidelines also include a category for a “profound and irremediable congenital or chromosomal anomaly existing in the unborn child that is incompatible with sustaining life after birth.” Two doctors must sign off on whether the condition meets that standard.
Isemann, the hospital spokesperson, said that Louisiana’s multiple abortion bans, which use different terminology, complicate matters.
“There is currently no guidance on which law controls” the situation, she said.
Isemann added that the hospital was struggling to ensure that a doctor who terminates a pregnancy after a diagnosis of acrania was safe from prosecution.
Acrania is lethal and rare, found in roughly 1 per 1,000 pregnancies at 12 weeks of pregnancy. When a fetus’s skull does not develop properly, the brain becomes damaged from exposure to the amniotic fluid that surrounds a fetus, according to Dr. Michael Aziz, an OB-GYN in Pittsburgh specializing in high-risk pregnancies.
Babies with acrania are often stillborn. Others live anywhere from hours to weeks. But the chances of survival “are none,” Aziz said.
Woman’s Hospital is aware that acrania falls under the list of “medically futile exceptions,” Isemann said, but “the laws addressing treatment methods are much more complex and seemingly contradictory.”
Katrina Jackson, the Democratic state senator who authored the most recent law banning abortion, told WAFB-TV in Baton Rouge, the news station that first reported Davis’ case, that she believed there had been a misunderstanding at the hospital.
“This woman is seeking a medical procedure for a pregnancy that is not viable outside of the womb,” Jackson told the station. She added that the case likely qualified for the broader exemption outlined by the state’s Department of Health. “Where legislation is needed to clear it up, then it will happen,” Jackson said.
Jackson did not respond to a request for comment.
A spokesperson for the Louisiana Department of Health said that because of Davis’ case, the department would add acrania to the preliminary list of two dozen fetal conditions explicitly named as examples of conditions that would make a pregnancy “medically futile” and allow for an abortion.
The final guidelines will go into effect 90 days after a public notice, which was expected to be published in the September edition of the state register, Michelle McCalope, a spokesperson for the agency, said in an email.
Jenny Ma, a senior staff attorney at the Center for Reproductive Rights, who has led arguments for plaintiffs challenging the Louisiana law, said that the group was “absolutely horrified” about Davis’ situation and that it was “absolutely one of the animating reasons for the lawsuit that we brought.” Ma noted that there was also a lack of clarity about what kind of physicians could sign off on the exemption and that there was not a guarantee that two doctors would be available or nearby to quickly assess a case, particularly in rural areas.
She added that any list could not account for every situation that could emerge and that the problem was “exacerbated by the chilling effect” on doctors who were facing legal liability.
Sarah Zagorski, a spokesperson for Louisiana Right to Life, who noted that the organization had fought against an amendment to the ban that allowed for an exception if a fetus had a fatal medical condition, said that in Davis’ case, the organization would recommend “support for families and perinatal palliative care from the moment of the diagnosis through the duration of the child’s natural life.”