The fallout from the Supreme Court’s June 24 decision overturning Roe v. Wade has been predictably brutal for pregnant patients with a medical emergency. The ruling unleashed a new crop of abortion bans with vague, narrow exceptions for the “life of the mother” that force doctors to decide when a patient is sufficiently close to death to justify termination. The court’s decision in Dobbs v. Jackson Women’s Health Organization has pushed hospitals into a frightening and dangerous position: If they follow the long-established standards of care, they might face prosecution; if they follow state law, they might kill their patients.
Every week, more horror stories emerge about women who are denied lifesaving care because of abortion bans. To experts on reproductive health care, these tragedies were no surprise. Sonia M. Suter—a professor at the George Washington University Law School, bioethicist, and former genetic counselor—has long studied the catastrophic impact of abortion restrictions on maternal health care. On Monday, we spoke about the crises roiling hospitals after Dobbs and the profound damage that the decision will inflict on obstetric care in red states. Our conversation has been edited for clarity.
Mark Joseph Stern: Can you talk about how abortion bans affect care for pregnant patients at hospitals in red states?
Sonia M. Suter: In theory, the best interest of the patient should affect what the hospital does, because a hospital not acting in the best interest of the patient could lead to legal liability. You could definitely have a real conflict now, because what the law requires has nothing to do with the best interest of the patient in many ways. We’re already seeing those conflicts. In the past, hospitals had more freedom to defer to medical judgment. Now medical judgment seems to take a backseat—it’s not relevant anymore. You have to ask, does this case fit within any exception the law allows?
Is there a risk that decision-makers at a hospital, like an ethics committee, could be liable if they greenlight an abortion that’s deemed illegal by the state?
I think there is absolutely that risk. That’s why we’re seeing hospitals err on the more conservative side. Even if there are indications of infection already, the patient has to be really, really sick to fit within the exceptions. That’s why they’re making bad decisions from a health care perspective. The costs to the providers and hospital are so high.
How do those fears intersect with concern about medical malpractice suits?
Before, if you didn’t act in the patient’s best interest, you could be at risk of liability. Now, you’re in between a rock and a hard place, because what if the patient dies and there’s a wrongful death suit? It looks like you didn’t do what you needed to do to save the patient’s life. You’re trying to thread a needle so you prevent her from dying but don’t look like you’re “aiding and abetting” an abortion that’s not allowed. It’s a horrible situation to put hospitals and doctors in.
So if you don’t act in the best interest of the patient, you might get sued. But if you do, you might get prosecuted.
Normally when you’re facing medical decisions, you’re worried about medical liability—you’re not worried about criminal liability. It’s such a change. If you followed the standard of care, you were pretty insulated. Criminalizing what has been an essential part of health care changes everything.
Along with ethics committees, many hospitals have risk-management consultants and in-house counsel. How do they affect care for pregnant patients in an emergency?
Before Dobbs, if the patient had an incomplete miscarriage, or the pregnancy was failing, most of the time doctors made those decisions on their own without bringing these other actors in. Dobbs is changing how doctors do care and changing the relationship between doctors and the institution. All these legal questions are putting these actors in the doctor-patient relationship who ordinarily wouldn’t be there. It’s preventing doctors from thinking through what the patient needs. All these other people are coming in and bringing these concerns that don’t get to what is best for this patient medically. It’s all to the detriment of the patient.
Imagine a patient dies after a doctor refuses to terminate her pregnancy because of an abortion ban. Her family sues for wrongful death. What happens?
A defense could be: Look, we thought we were complying with the law. The standard has been defined by the law, even though, medically, the standard was something else. Laws prohibiting abortions could be a defense. I don’t think we know how this is going to play out; that’s what’s so difficult for doctors. There’s no decision that doesn’t subject them to some risk of liability. One is a risk of civil liability; the other is a risk of civil and criminal liability. You’re going to err more on the side of preventing the two types of liability rather than just the one.
Still, though, you can’t avoid malpractice suits by insisting that you complied with the law.
You can’t just, say, it’s fine, there’s no chance they’ll bring a wrongful death suit. You don’t know how juries are going to weigh this. It’s all so new, establishing what the standard of care is now. And when there’s all that uncertainty, it puts you at risk—what’s a jury going to say?
How do those trials typically play out?
Usually, you’d get testimony from experts looking at how health care providers generally handle this kind of situation. It’s really the jury weighing the testimony of the different experts, looking at the practice of medicine, and trying to figure out what a reasonable doctor would do in these circumstances. The law has tended to defer to medical expertise. These abortion laws are a huge movement away from that, because they don’t care about medical expertise. It doesn’t matter now. States have defined a new standard here that’s in conflict with ethical standards.
How will Dobbs affect the field of obstetrics more broadly?
There’s going to be fewer and fewer obstetricians. Who would want to do this work anymore? It’s too fraught. Even if you don’t provide abortions regularly, sometimes that’s how you’re going to manage pregnancies. Even if you have laws that allow for exceptions, will there be anybody left who’s trained to do an abortion? You have to train these people! How are we going to do the medical education to perform abortions at medical schools in Texas? Even if it was clear to everybody that an abortion was allowed under the law, will there be anybody left who can do it?
A lot of the stories so far involve second-trimester pregnancies, too; it’s not as simple as prescribing a medication abortion.
These cases require special training. They’re just more complicated and higher risk. I wouldn’t want somebody doing that procedure who hadn’t had the training. The risks would be higher.
Do you think there will be a gap between the quality of obstetrics in red and blue states?
Yes. There will be fewer people practicing in red states and less training in techniques that are needed for part of essential obstetric care.
Have we witnessed any other examples of abortion bans creating inferior obstetric care?
Of course. Obstetricians generally do a sonogram at 20 weeks to make sure everything looks OK anatomically. In abortion-restrictive states, they’ve been doing these scans earlier to give people more time to travel for termination. But before 20 weeks, you might miss things. You might misinterpret things. You won’t have as much information; the fetus isn’t as well-developed. Obstetricians are not following the standard of care because their hands are tied by the law. I think genetic counselors are worried about what they can say, too. What kind of prenatal testing can they offer? Would they be wary of revealing results that could lead to termination? All care will be affected by the question: Are you in some way “aiding or abetting”?