WASHINGTON — The state laws enacted since the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization have come in rapid succession: A doctor in South Dakota accused of inducing an abortion could be guilty of a Class 6 felony punishable by two years in prison.
A doctor in Texas, meanwhile, could face life in prison and fines of up to $100,000 for aiding in an abortion. A doctor who violates Florida’s 15-week abortion ban could receive up to five years in jail.
In all, 18 states have enacted laws that would punish doctors who perform abortions with jail time in the wake of the Supreme Court ruling overturning the federal right to an abortion — and doctors worry that helping to medically treat a miscarriage, too, will put them at risk of prosecution.
Idaho, North Dakota and Wyoming all have abortion laws on the books with similar punishments that the state has not yet implemented. A 19th century law in West Virginia would make abortion a felony, but the status of the law, which predates the 1973 Roe v. Wade Supreme Court ruling that established a right to an abortion, is still in flux. Wisconsin and Arizona face similar situations, with pre-Roe laws that would criminalize the procedure.
But doctors are concerned that the procedures used to treat miscarriages can be similar to those used to terminate a viable pregnancy — often a prescription for the medication abortion drugs mifepristone and misoprostol.
“Just being accused is a huge risk. Even if you’re completely in the right and you’re being very careful to follow laws,” said Karen Meckstroth, an OB-GYN and professor at University of California, San Francisco.
Alina Salganicoff, director for Women’s Health Policy at the Kaiser Family Foundation, cautioned that these laws will make it more difficult for doctors to decide the course of care when a woman begins miscarrying, and the risk to the woman’s health is still unknown.
“And just the decision is going to be in many cases shaped by whether the doctors have concerns about their liability, either civil or criminal, depending on the state,” Salganicoff said.
Last week President Joe Biden issued an executive order to ensure emergency medical care for women experiencing pregnancy loss.
Health and Human Services Secretary Xavier Becerra followed up on Monday, sending a letter to health care providers clarifying physician responsibilities under the Emergency Medical Treatment and Labor Act, a 1986 law that requires emergency departments to care for patients in unstable medical conditions regardless of their ability to pay. Becerra said if a woman comes into an emergency room while miscarrying and needs an abortion to stabilize her, the law would require doctors to save her life. He also said that the federal act preempts any state abortion restrictions.
Enforcement of the federal law is a complaint-driven process, and Becerra said any hospital or physician found in violation of the federal law could be subject to exclusion from Medicare and state health care programs.
Laws restricting abortion in Alabama, Texas, Arkansas and Ohio all include carve-outs to allow for abortions of ectopic pregnancies, which is when a fertilized egg implants outside the uterus and requires removal. Such pregnancies are not viable and can threaten the life of the woman.
But other state abortion restrictions do not explicitly mention it.
It can take time to confirm a miscarriage, said Meckstroth.
When people who have what she described an an inevitable miscarriage — situations where a person is bleeding heavily or has an open cervix — time can be of the essence and the health risks from continuing the pregnancy can outweigh the small chance the pregnancy continues to term.
