When Elizabeth Weller’s water broke during the 18th week of her pregnancy, the prognosis was bleak: With almost no amniotic fluid left, the fetus could not survive. If Weller did not terminate immediately, she would be at risk of a potentially lethal uterine infection. She requested an abortion, but the hospital’s ethics committee refused. The committee feared that if doctors terminated Weller’s pregnancy before she was actively dying, they would face liability under Texas’ six-week abortion ban. So the committee forced her to wait until she had a high fever and “foul” discharge—symptoms of a serious infection in her uterus—to terminate.
Weller’s story, documented by Carrie Feibel in a wrenching NPR report, reflects a growing crisis in a post–Roe v. Wade America. Many states have banned or severely restricted abortion since the Supreme Court overturned Roe on June 24, enacting laws with extremely vague and narrow exceptions for the life of the mother. Health care providers have legitimate concerns that they will face civil and criminal liability if they terminate a pregnancy under any circumstances. They worry that judges, juries, and prosecutors will disagree that the patient had a true medical emergency. And so the decision shifts from the patient to the hospital, which frequently places these delicate considerations in the hands of ethics committees.
These committees reveal little about their work to the public, and their membership is usually kept secret; as a rule, they do not talk to the press. They have long functioned in the background, a mostly obscure feature of hospital administration. Now that’s all changed: In our post-Roe nation, the ethics committee may decide whether pregnant patients live or die.
American hospitals, especially those affiliated with universities, began to establish these committees in the 1960s. Christine Mitchell, president of the Association of Bioethics Program Directors and executive director of Harvard Medical School’s Center of Bioethics, told Slate that in their early days, the panels primarily discussed the ethical quandaries regarding technological advances and end-of-life care. The health care system was developing tools to keep patients alive in a persistent vegetative state, raising difficult questions about when a family member could refuse death-prolonging treatment on their behalf. As resulting conflicts were litigated in the courts, hospitals wanted their own internal experts to help make the best decisions for patients.
Today, Mitchell said, hospital ethics committees consult with medical staff on a wide range of issues. They typically include physicians, nurses, community members, hospital chaplains, clinical ethicists—and, often, attorneys. Their work goes beyond ethics consultation: Committees also develop written policies (like informed consent) and education, for the hospital and the broader community, about medical ethics. They do still take on end-of-life disputes, too, and a Texas law requires the state’s hospitals to create panels for that very purpose.
After Roe’s fall, ethics committees are taking on a new responsibility: determining whether a pregnant patient suffering a medical emergency may lawfully obtain an abortion. This task is actually a throwback to the 1960s and early 1970s, when states required hospitals to use “abortion committees” that decdied when a pregnancy was dangerous enough to merit termination. The Supreme Court struck down those laws in a companion case to Roe, finding them “unduly restrictive of the patient’s rights and needs.” That decision, of course, has now been overturned. So, in 2022, committees formed for different purposes are suddenly undertaking a job that had been deemed unconstitutional since 1973: giving an up-or-down vote on an emergency abortion.
The fundamental problem facing these committees is that the current crop of abortion bans were written with the most cramped and ambiguous health exceptions imaginable. Many of these laws allow termination only in the case of a genuine medical emergency—a term that is not defined, but suggests the patient’s life must be in imminent peril. GOP lawmakers have consistently rejected a broader exception for the mother’s “health” on the grounds that it creates a loophole allowing “abortion on demand.” The Susan B. Anthony list, a prominent anti-abortion group, has condemned any “health exception” as “a dangerous carveout” that makes “abortion available throughout all of pregnancy without any meaningful restriction.”
Hospitals are thus left to interpret draconian laws that ban abortion except when necessary to “save the life” or “prevent the death” of a pregnant woman. But when is a patient sufficiently close to death to justify termination? When her pregnancy has a 10 percent chance of killing her? 50 percent? 90? That, increasingly, is a question for the hospital ethics committee.
This engineered drama is already playing out on the ground in Missouri, which banned abortion minutes after the Supreme Court overturned Roe. The ban has no explicit exception for ectopic pregnancies, which are nonviable and deadly if not terminated; Republican Gov. Mike Parsons has declined to call a special session to clarify this ambiguity. Instead, Missouri law permits abortion when there is an “immediate” need to avert death. This language suggests that even if a patient will surely die if her pregnancy is not terminated, she cannot undergo an abortion until the pregnancy is about to kill her.
As Stat’s Olivia Goldhill has reported, at least one patient with an ectopic pregnancy has been denied care under Missouri’s law. When she arrived at the hospital, her fallopian tubes could have burst at any moment, causing internal bleeding and possible death. Yet she still had to wait for the ethics committee to decide whether an abortion was legally permissible. The panel took half a day to decide that the patient was, indeed, in enough danger to terminate.
The Missouri incident demonstrates that these committees are not always focused on what is ethically appropriate, but on what’s allowed by law. Attorney input varies by hospital: Some appoint in-house counsel as full-time members of their ethics committees; others let in-house counsel sit in as unofficial advisers; some bring in lawyers from outside the institution; and others appoint no lawyers at all. Mitchell believes it’s inappropriate for in-house counsel to participate, since they have “a fiduciary duty to protect the institution from liability” and may not have the patient’s best interests at heart.
The Weller case illustrates this problem. Texas’ S.B. 8, which Republican lawmakers passed in 2021, bans abortion after the detection of “fetal cardiac activity,” at around six weeks. It allows virtually every private citizen to sue anyone who “aids or abets” such an abortion for $10,000, plus attorneys’ fees. There is an exception for a “medical emergency,” but this provision does not prevent vigilantes from filing suit in the first place. Rather, a health care provider who’s sued under S.B. 8 must prove to a judge by a preponderance of the evidence that their patient faced a true emergency. (If they prevail, they cannot collect attorneys’ fees from the plaintiff.) It’s no surprise Weller’s doctors would not terminate after her water broke far too early: They could still detect fetal cardiac activity, and an abortion might have triggered an avalanche of S.B. 8 suits against them, as well as their nurses and staff. The ethics committee, too, may have faced liability for greenlighting the procedure.
At least two states have already passed S.B. 8 copycats, and more than a dozen have imposed severe civil and criminal penalties on abortion providers. These laws pit the best interests of the woman (as a patient in need of treatment) against the best interests of the hospital (as an institution seeking to avoid lawsuits and prosecution). Doctors know that prosecutors are always looking over their shoulder. In Missouri, for instance, every abortion must be reported to the state, and prosecutors can review the doctor’s decision to decide whether to charge them with a criminal violation of the state’s ban. If a doctor is convicted under the law, they face up to 15 years in prison.
This trepidation about prosecution translates into denial of maternity care for women in desperate need of it. It’s why Dr. Jessian Munoz, a Texas OB-GYN, could not provide an abortion to a woman in the midst of a miscarriage with a womb infection: The fetal heartbeat had not yet stopped, so he waited until she lost multiple liters of blood to terminate. By that point, she had developed major complications that required surgery and had been put on a breathing machine. It’s why another Texas patient undergoing a miscarriage could not terminate until she was bleeding out. It’s why at least 28 other Texas patients experiencing a failed pregnancy were denied an abortion—a majority of whom then had serious infections and bleeding. It’s why yet more Texas patients were forced to suffer through sepsis and hemorrhage before doctors would terminate their doomed pregnancies.
Faced with these horror stories, the anti-abortion movement is embracing a conspiracy theory that doctors are intentionally putting women’s lives at risk to cast abortion bans in a negative light. If this conspiracy existed, it would require the participation not just of doctors, but also of hospital ethics committees supervising their work—thousands of people in multiple states colluding to harm patients as a political stunt.
There is a simpler explanation: Abortion bans inflict the exact harms that reproductive rights advocates have long predicted they would. They compel the entire health care bureaucracy to worry about prosecutors rather than patients when making life-or-death judgments. This government intrusion upon private health care decisions does not protect life. It guarantees suffering and death.
Update, Aug. 2, 2022: This article originally stated that S.B. 8 does not define a “medical emergency.” While the measure itself does not define the term, it is defined elsewhere in Texas law.