Dr. Katherine McHugh is an ob-gyn in Indiana who has been practicing medicine for about 10 years and has provided abortion care to thousands of women. In late June, when the Supreme Court overturned Roe v. Wade — the decision that legalized abortion nationwide — the clinic where McHugh works was flooded with calls from patients in states where the procedure became illegal following the high court’s decision.
“Instantly our phones lit up and we had an incredible wait, because we were being called by people from the waiting rooms of other abortion clinics in different states who were saying that they had an appointment, they were gonna have their abortion that day and now they couldn't get it because of the [Supreme Court] decision, and people were so afraid and so desperate to receive this care,” McHugh told Yahoo News.
Following the Supreme Court ruling, abortion remained legal in Indiana until about 20 weeks after fertilization, or 22 weeks after the mother’s last menstrual period. These last couple of months, McHugh said, the state has become an important regional hub for abortion services. She’s worked longer hours seeing so many more patients from neighboring states such as Ohio, Kentucky and Tennessee, where the procedure was banned. But she has also taken care of people traveling farther distances, including from Alabama and Texas.
After Roe was overturned, Indiana was poised to pass legislation restricting abortion.
McHugh explained, “The tempo over the last few months is this sort of race to try to take care of as many people as we could.”
In August, lawmakers in the state passed a near-total abortion ban with extremely narrow exceptions for rape, incest, lethal fetal abnormalities and serious medical complications. The ban, Senate Bill 1 — which was challenged in court by several abortion care providers in Indiana — took effect on Sept. 15. On Thursday, however, it was temporarily blocked by a judge, making abortion legal in Indiana until 22 weeks of pregnancy. In a statement reacting to the preliminary injunction, Republican state Attorney General Todd Rokita said Indiana was planning to appeal and “continue to make the case for life in Indiana.”
But for now, doctors in Indiana like McHugh can continue to provide abortion care to Hoosiers and women in other states. But for how long isn’t yet clear.
At least 13 states, many of which had so-called trigger laws in place, have completely banned or severely limited abortions since the high court ruling on June 24, and more are expected to do so. According to the Guttmacher Institute, a research group focused on reproductive health, 26 states are certain or likely to ban abortion now that Roe has been repealed.
For doctors like McHugh and many other reproductive health providers in states where abortions are now illegal, navigating work post-Roe has been stressful. One of the challenges they’ve faced is that the language in abortion laws has created confusion and uncertainty.
“I think what you’ll find in many of these states, these laws are written by nonmedical people to regulate the practice of medicine,” Dr. Nisha Verma, an ob-gyn in Atlanta and a fellow with Physicians for Reproductive Health, told Yahoo News. “They often don’t make sense for the doctors that are actually on the ground providing this care in terms of how to interpret them, how they apply to a particular situation.”
In many states where abortions are banned, an exception was carved out to allow the termination of a pregnancy in order to preserve the life or health of the mother. However, in some places, these exceptions are even narrower, allowing abortion only in cases of medical emergencies. But what constitutes an emergency, doctors say, is not clearly defined in any of the legislation.
“The exceptions in Indiana include the life or serious health risk of the mother. … The concern there is that we don’t know what a serious health risk is,” McHugh said. “There’s not a list in a textbook that says, ‘These are serious health risks, and these are not serious health risks.’ We know that different people respond to disease and illness in different ways, and the long-term outcomes are not up for us to decide how risky it is and how much risk we are willing to take. So it is a complicated exception to navigate.”
Dr. Tani Malhotra, a maternal-fetal specialist in Cleveland, Ohio, said the abortion law in her state puts physicians “in an absolutely impossible position,” because they now have to prove that someone is sick enough to be able to get the necessary care.
“Previously, when patients came in, if they had health conditions, we would talk about, you know, what the implication of a pregnancy would be on that health condition. Would it make their health worse? Would it not really impact their health? Is there risk for progression of their disease as they’re pregnant or postpartum? And then ultimately the decision lies with the patient, whether she wishes to accept those risks or not,” Malhotra said.
Under the new law, however, she can no longer just offer a patient the option to terminate the pregnancy, even if it is medically justified care, she said. Instead, she has to run it by the hospital’s lawyers to determine whether she can legally perform the procedure.
“That’s a really poor position to put physicians and their patients in,” Malhotra said.
Last week, a judge blocked Ohio’s six-week abortion ban for a period of 14 days. In the meantime, Ohio abortion providers can continue to perform procedures until 22 weeks of pregnancy.
Verma said that having to involve lawyers when making these medical decisions has also disrupted an important part of medical care — the confidential relationship between physician and patient.
“Traditionally, it’s been the doctor and the patient working together to come up with the best decision, and, you know, that could include the patient’s family. … Now that’s involving a lot of people, a lot of things that are outside of that physician-patient relationship,” she said, adding that what her patients really want is for their doctor to be able to create the best plan with them without having to worry about facing possible criminal charges for providing the best medical care.
While penalties vary by state, under most abortion laws, doctors who provide this type of medical care can be charged with some class of felony. Punishments can include fines, prison time and loss of medical licenses.
“These are not light consequences to be facing,” McHugh said. “We all want to think that in the moment we will do whatever it takes to save the patient in front of us. But what about the next patient in the next room? How do I guarantee that I can take care of that patient if I’m in jail for taking care of the patient in front of me? It’s a really complicated mental gymnastics that we’re trying to weigh the balances of taking care of people and doing what is right and doing what is legal, which are not the same thing.”