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Why physicians fear abortion ban language could threaten their ability to give life-saving treatment

As other states' bans kick into place, Indiana physicians voice fears about how legislative definitions of medical terms could harm pregnant people.

INDIANAPOLIS — For decades, the treatment for potentially deadly complications arising from pregnancy overlapped with techniques used during abortions. 

In a "post-Roe" society, though, how do physicians treat those problems, using the same life-saving techniques, without opening themselves up to potential prosecution? 

It’s a question now at the forefront of physicians' minds after the Supreme Court’s conservative majority voted to overturn the constitutional right to an abortion previously guaranteed by Roe v. Wade.

As some states work to enact language that ban abortion into law, Indiana physicians are now raising concerns that the vague definitions established in those other bans could open physicians up to prosecution if lawmakers adopt that same language here. 

“It is so difficult to try to practice medicine at the same time that you are trying to understand new laws, and new legal restrictions on your ability to practice medicine,” said Dr. Katie McHugh, an OB/GYN and abortion provider with more than eight years of experience in the Indianapolis era. “When the term abortion is used in legislation, that presents all kinds of complications and issues in appropriately caring for the pregnant person.” 

Physicians fear a future where they will have to consult with lawyers, ethicists, and hospital administrators prior to giving essential care to patients immediately. 

“Abortion care is necessary, in many instances across many different conditions. And doctors needs to be able to practice the way that we have been taught through evidence, through compassionate ethical care,”  said Dr. Caitlin Bernard, who is an expert in sexual and reproductive health at IUPUI. 

RELATED: Indiana special session to address abortion, tax refund pushed back to July 25

When trigger laws took effect in Ohio and Kentucky, Dr. McHugh said Indiana fast became a haven for people seeking abortions from those states. 

McHugh recalled phone lines at her office ran off the hook, voicemails flooded with people desperate for their services, immediately after the overturn of Roe v. Wade. 

“I have seen dozens of people, just myself, in just a few days. So I would say hundreds of people have accessed care across the state, because it's not just me in my one space. It's lots of people,” Dr. McHugh said. 

The newly implemented language of abortion bans within these two states is now being closely monitored by local OB/GYNs and abortion providers ahead of a special session, where state Republicans appear similarly poised to push an abortion ban through the state legislature. 

RELATED: Abortion rights top of mind at candidate town hall in Fishers

"When we look at the language, and many of these abortion bills or restrictions on abortion in the States, they don't necessarily clarify what exactly they're considering abortion," said Dr. Bernard. 

In both states, physicians face steep penalties for performing abortions. In Ohio, state law now stipulates doctors who provide an illegal abortion face a fifth-degree felony. In Kentucky, the Human Life Protection Act, that went into effect Friday, prohibited abortions in most circumstances and indicated no person may knowingly cause or aid people in “the termination of the life on an unborn human being.” 

Kentucky law does make provisions for abortions when the life of the mother is at risk. But with no precedent yet set as to when the life of the mother takes precedence over the fetus, actual prosecution of physicians is still possible in Kentucky. 

“The law is very vague. We don't really know what the terms are going to mean. And really, we're leaving that in the hands of prosecutors who have the discretion to decide what they want to prosecute," said attorney at law Michelle Lawson, who is a practitioner in east Kentucky. 

Abortion ban language within the Indiana legislature could have profound implications for the treatment of common, and deadly, problems during pregnancy – like ectopic pregnancies or miscarriages. 

Ectopic pregnancies are not abortions, and occur in 1 in 50 births. They are situations where a fertilized egg implants somewhere outside the womb, typically a fallopian tube. 

However, the treatment for an ectopic pregnancy is ending the pregnancy. Medically, that is a type of abortion, according to Dr. McHugh. Legislatively though, that same term could leave the actual treatment of the condition up to lawmakers' restrictions, and further open up physicians to prosecution. 

“There's more to pregnancy care than just abortion. Using terms and restrictions on medications doesn't just prevent people from receiving abortion care, it also prevents people from receiving normal standards of care, health care, for the rest of their pregnancy issues,” Dr. McHugh said.

RELATED: What is ectopic pregnancy? A reproductive health expert explains

Similar concerns hold true for miscarriages, where the treatment for abortions can, according to Dr. McHugh, have "the same medication, the same doses, the medications are very effective in the treatment of both miscarriage management and medication abortion." 

Miscarriages can also, Dr. Bernard reiterated, have a positive heartbeat. 

"We can see the cardiac activity. However, the woman is having bleeding, she could even be hemorrhaging. She could have an infection. Her cervix could be opening. It's still a miscarriage. But somebody might say, well, there's still cardiac activity of the fetus, so therefore, it's an abortion," Dr. Bernard said.

The other way to treat miscarriage is through surgical uterine evacuation, an evacuation of the uterus that’s the same technique used in abortions.  

RELATED: No, the Supreme Court’s decision to overturn Roe v. Wade does not ban birth control

“[Miscarriages] can be treated with a D&C, a procedure where we remove the pregnancy from the inside of the uterus. Those are the exact same procedures that we use for an abortion. The challenge is that, unless you are a medical professional, it's very difficult to write a law that makes it clear what is considered an abortion and what is not,” Dr. Bernard said. 

The overlap in techniques used in abortion and ones to treat other pregnancy related issues have already caused problems for physicians in the state of Texas. 

Texas law banned the use of multiple medications as "abortion-inducing drugs" after the seventh week of pregnancy. Then, in late 2021, OB/GYNs in the Austin area received a letter from a pharmacy saying it would no longer fill the drug methotrexate in the case of ectopic pregnancy, citing recent Texas laws, NPR reported. 

As Indiana Republicans prepare to enact state legislation banning abortion, physicians said they hope lawmakers take the nuances of medical language into consideration when crafting laws that will impact the health, and lives, of Hoosiers for generations to come. 

“I hope that the legislators include the language that allows us to care for emergencies like an ectopic pregnancy. Or a person who is pregnant, but not far enough along that the baby can live outside of them, but they have a life threatening condition. I hope that the legislators remember that the pregnant person is the expert on their own body," McHugh said.

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