PHOENIX — Brianna was seven weeks pregnant when she started worrying she would not live to see her due date. She had a narrow windpipe severely scarred by surgeries she had undergone as an infant, and as her pregnancy developed, she began wheezing and straining for breath.
She had not planned to get pregnant at 30 and said her doctor warned her the pregnancy was high-risk and could threaten her life. This month, she hurried to get an abortion near her home in Phoenix, concerned that if the Supreme Court acted before she did, she might lose the option.
“I probably wouldn’t have made it to term. Or I would die,” said Brianna, a nursing assistant who asked to be identified only by her first name. “It definitely saved my life.”
With the Supreme Court expected to overturn a 50-year precedent and strike down a right to an abortion soon, pregnancies like Brianna’s that are endangered by a serious medical condition are emerging as complicated flash points in the fight over women’s health.
Arizona is one of more than 20 states in which abortion could be banned or sharply restricted after the Supreme Court acts. A century-old law that could go into effect if Roe is overturned would ban women from getting an abortion “unless it is necessary to save her life.” And a new ban on abortions after 15 weeks, signed into law in March, includes an exception for medical emergencies.
Similar exceptions are in place in nearly every state where abortion would be outlawed. For abortion rights activists however, the clauses are too narrow or too vaguely worded and would put women’s lives in jeopardy.
Women with high-risk pregnancies and their doctors are already agonizing over what medical bar they need to clear to legally justify an abortion.
“How almost dead does someone need to be?” asked Dr. Leilah Zahedi, a maternal fetal medicine physician in Tennessee who specializes in high-risk pregnancies and performs abortions. “Am I to just watch someone bleed to death? Or provide the care and then be reported and go to jail? I don’t know.”
Opponents of abortion say such speculation is exaggerated, arguing that doctors are trained to make life-or-death decisions every day and are more likely to err on the side of protecting the mother rather than the fetus.
Read More on the U.S. Abortion Debate
- Biden’s Dilemma: Bracing for the end of Roe v. Wade, the president is weighing executive actions to help preserve abortion rights. Many come with legal risks.
- Abortions Rise: After a three-decade decline, the number of abortions in every region of the United States increased from 2017 to 2020.
- Not Waiting for a Decision: Roe is still the law of the land, but clinics in some states are operating as if it were already overturned.
- Birth Control Battle: In Missouri, a clash over contraception foreshadows what may come in a post-Roe world.
“The health exception has allowed for abortions to take place up to the moment of birth,” said Cathi Herrod, president of the socially conservative Center for Arizona Policy. “‘Life of the mother’ is going to mean, prevent the death of the mother.”
The issue can be especially complicated in pregnancies in which the fetus is unlikely to survive. Continuing with such pregnancies can endanger a woman’s health, but doctors say serious prenatal anomalies in many cases can be confirmed only after the first trimester, when most abortions would be banned in these states. Being forced to carry a dying baby to term exacts not only a physical toll, but also an impact on a women’s mental health that some doctors argue is life-threatening.
But only five states with abortion bans and Republican-controlled legislatures — South Carolina, Louisiana, Utah, Mississippi and Georgia — have some exceptions for fatal fetal defects, according to the Guttmacher Institute, a research group that supports abortion rights. Other states make no exception for cases where a fetus is unlikely to survive, and laws in some states, including in Ohio and Arizona, specifically outlaw abortions performed based on a diagnosis of Down syndrome or other nonlethal conditions.
Ahead of the court’s ruling, maternal-fetal medicine specialists are already scrambling to understand the hazy new standards in their states for what constitutes a legally permissible abortion in a post-Roe America. A patient with aggressive cancer? A pregnancy in which a fetus had a 10 percent chance of surviving outside the womb?
“There’s no bright line in medicine or science that says, ‘OK you are officially dying,’” said Dr. Jen Villavicencio, who is with the American College of Obstetricians and Gynecologists.
If doctors avoid medically necessary abortions because they are worried the law is unclear, more women will carry high-risk pregnancies to term or delay terminating until they can travel to a different state, and America’s high rates of pregnancy-related deaths could climb even higher, maternal fetal medicine specialists argue. They say the effects will fall hardest on low-income women and Black, Hispanic and Native patients, who already die at rates three times higher than white women in pregnancy.
But abortion opponents defended the narrow “life” exceptions, saying the laws would protect fetuses while still allowing women to get abortions in medical emergencies — situations that would cause the “impairment of a major bodily function,” in the language of several state abortion prohibitions.
Beau LaFave, an anti-abortion Republican state representative in Michigan, defended laws that made no exception for grave fetal defects, saying the instances of fatal anomalies were rare, and abortion was used to cull fetuses with disabilities. Mr. LaFave was born with birth defects requiring multiple surgeries and, when he was 18 months old, the amputation of his left leg.
“The Democrats would like me to have been aborted, and I think killing people just because they have a disability is immoral and should be illegal,” he said. “It’s not compassionate.”
But women who have terminated otherwise desired pregnancies for medical reasons said the laws would compound the pain and confusion of an already agonizing experience. Since the Supreme Court’s draft ruling overturning Roe v. Wade leaked in May, many women have turned to message boards and support groups to air their frustration and questions.
In more than a dozen interviews, women who have terminated for medical reasons said they long felt like forgotten outliers in the debate over abortion access. Now, they said, their cases illustrated the chasm between how abortion restrictions are written, and the wrenching realities of how pregnancy can actually unfold (Most spoke on the condition of being identified only by a first name).
In Pittsburgh, Tracee Miller, 38, was devastated when a prenatal genetic screening 12 weeks into her pregnancy showed that her fetus likely had a genetic condition called Trisomy 13. Some 90 percent of babies born with it do not live beyond a year, if they even survive to delivery.
Ms. Miller is now seeking a more definitive test of her amniotic fluid before she decides whether to terminate her pregnancy. But she said she cannot get the test she needs until she is 16 weeks pregnant — a stage of development where abortion would be prohibited in many states.
Though abortion would remain legal in Pennsylvania, Ms. Miller said the idea of being forced to bear the health risks and emotional pain of a doomed pregnancy was unfathomable.
The State of Roe v. Wade
What is Roe v. Wade? Roe v. Wade is a landmark Supreme court decision that legalized abortion across the United States. The 7-2 ruling was announced on Jan. 22, 1973. Justice Harry A. Blackmun, a modest Midwestern Republican and a defender of the right to abortion, wrote the majority opinion.
What was the case about? The ruling struck down laws in many states that had barred abortion, declaring that they could not ban the procedure before the point at which a fetus can survive outside the womb. That point, known as fetal viability, was around 28 weeks when Roe was decided. Today, most experts estimate it to be about 23 or 24 weeks.
What else did the case do? Roe v. Wade created a framework to govern abortion regulation based on the trimesters of pregnancy. In the first trimester, it allowed almost no regulations. In the second, it allowed regulations to protect women’s health. In the third, it allowed states to ban abortions so long as exceptions were made to protect the life and health of the mother. In 1992, the court tossed that framework, while affirming Roe’s essential holding.
What would happen if Roe were overturned? Individual states would be able to decide whether and when abortions would be legal. The practice would likely be banned or restricted heavily in about half of them, but many would continue to allow it. Thirteen states have so-called trigger laws, which would immediately make abortion illegal if Roe were overturned.
“To have this constant reminder of a baby that’s dying inside of you — to force someone to carry that baby to term and watch that baby die within minutes of being born is a cruelty that I just can’t abide,” she said. “The feeling that you aren’t able to make a decision about a thing that’s inside of you, about you, is unbelievable.”
In Texas, which imposed a ban on abortions after six weeks, doctors may perform an abortion in a “medical emergency” that puts a patient at risk of dying or suffering the “substantial impairment of a major bodily function.” But doctors say patients with medical complications are already leaving the state to get abortions because they are worried about how the law would be applied.
Dr. Alice Mark, medical adviser to the National Abortion Federation, said one patient in Texas drove 10 hours to New Mexico to end a dangerous nonviable pregnancy in which an embryo implants outside the uterus. Even though Texas’ law contains an exception for these situations, called ectopic pregnancies, Dr. Mark said the law had created a climate of fear and uncertainty surrounding abortion care.
In Utah, Dr. Cara Heuser, a maternal-fetal medicine specialist, said that a cluster of doctors was wrestling with how to stay within the boundaries of an abortion ban that would be triggered by overturning Roe. They agreed that water breaking too early, which puts a patient at risk of infection and sepsis, would qualify for the state’s medical emergency exception.
In Tennessee, physicians and hospitals are swapping emails to outline a standard of care across the state for how doctors should treat complicated cases such as an incomplete miscarriage under the ban on abortions that will take effect if the Supreme Court strikes down Roe. Tennessee’s law would allow abortions only in “extreme cases where it is necessary to prevent death or serious and permanent bodily injury.” Complicating the picture, the law and others like it do not spell out what conditions would meet that standard.
In Ann Arbor, Mich., Hannah, 33, got a grave diagnosis about her wanted pregnancy the day after the Supreme Court’s draft decision went public. She and her husband had been elated to be expecting their first child. But after a genetic screening, an ultrasound revealed that her baby had fluid in his brain, severe swelling throughout his body and a heart defect that would require intensive surgeries, and could kill him.
As Hannah tried to absorb the news, she also thought about her legal options. Michigan has a 1931 law still on the books that would outlaw all abortions, though it has been blocked by a state court judge. The law makes no exceptions for catastrophic fetal defects.
“I was just terrified,” Hannah said. “Would it mean that by the time we were making a decision I wouldn’t be able to make that decision? Would it mean I’d have to travel to a different state?”
Like several women who got abortions for medical reasons, Hannah did not draw any distinction between her decision to terminate and other women who get abortions because they can’t afford to raise a child, are too young, not ready or any other reason.
“No one does this casually,” she said. “People are much more sympathetic to these kinds of terminations, where it’s not viable, there’s going to be no quality of life. But my abortion is not more valid than anyone else’s. All women need to have access to this.”