States with Abortion Bans are interpreting miscarriages as abortion if fetal heartbeat persists.

Compassionate Care or Aiding and Abetting Abortion?

As Certified Nurse-Midwives and Certified Midwives, many of us in hospital practice have been present for our patients who have spontaneously miscarried or the pregnancy failed weeks before a significantly pre-term fetus could possibly survive outside of its mother's womb.

A 17-week, previable, pregnancy can fail as a result of causes outside a mother's control. A woman may present with unexpected contractions, bleeding or ruptured amniotic membranes. Fetal heart tones are undetectable. The fetus may still be in the uterus or has descended through the cervix into the vagina. The expectation is that the fetus will, inevitably, deliver prematurely. Management in this scenario includes watchful waiting and careful surveillance of the mother. Left alone, the process may be complete within a few hours, indicating an uncomplicated miscarriage.

In another scenario, the pregnancy has failed, as described above, and the fetus is retained in the mother's uterus/cervix/vagina. In this situation, though, the fetal heart beat is still detectable. There is no hope for the baby's long-term survival at this early stage of gestation. Due to the presence of a heart beat, the management plan becomes more complicated, potentially involving State law. Reproductive legislation, in select States, may intrude on this delicate space, forcing legal scrutiny of the midwifery/medical care provided.

Again, in order to support their patients, midwives are frequently at the bedside during these events. In addition to providing emotional support, a physician or midwife may gently assist the delivery of these tiny babies, who have descended from the protection of the uterus. Once born, they can be swaddled in warm blankets, with donated knitted caps, and placed in the mother's arms. She is encouraged to hold and cuddle her child during the final movements and heartbeats of its life. Both scenarios are similar, whether the baby has already died in utero, or is still alive. The ultimate outcome is, also, the same. A mother has lost her baby. These are tragic and bittersweet moments that midwives may share with a grieving mother.

Potentially intruding into one of these birth scenarios are State laws associated with total or partial abortion bans. The love and support you have provided, as a midwife, might be subject to scrutiny. Supporting a spontaneous or inevitable miscarriage, with a beating fetal heart, has some potential for mis-characterization as an illegal abortion. Your gentle care may be judged as an active separation of a living fetus from its mother.

In certain States, legislators have passed "Heartbeat Protection Acts" which make it a crime for a provider to knowingly perform an abortion without determining whether the unborn child has a detectable heartbeat. The language in these laws lacks clarity for everyone, except those drafting the legislation. In practice, care providers are increasingly hesitant to provide even normal care under threat of prosecution, prison time, or professional ruin. Under pressure from medical providers, some abortion laws have been revised to make exceptions for "medical emergencies". Unfortunately, no clear definition of medical emergency has been included in these statutes.

There are, also, State laws which fail to clearly define the differences between miscarriage and abortion. Select legislative bans may lack explicit exceptions for miscarriages. This ambiguity creates fear of criminal liability, loss of license, or financial penalties if doctors or midwives provide any treatment in clinical situations where there is fetal heart activity. These fears result in delayed care for women experiencing miscarriage and pregnancy failure caused from incompetent cervix, lethal fetal anomalies, pre-viable pre-term rupture of membranes, or chorioamnionitis, to name just a few. The major concern among providers is that miscarriages,with detectable fetal heart beats, could be interpreted, legislatively, as abortions. Routine medical management, or patient support, could be interpreted as a violation of the law.

The tragic result of poorly drafted State reproductive legislation has led to the deaths of several women who were refused care after presenting to the hospital with obvious signs and symptoms of miscarriage. In one case a woman presented to the emergency department at 17+ weeks with cramps and vaginal bleeding. An ultrasound confirmed bulging membranes in the vagina with the fetal head descending through her almost-fully-dilated cervix. It was noted that she had low amniotic fluid (likely due to premature ROM). It was, also, documented in the record that "miscarriage was in progress". Yet, the doctors informed the patient that they could not "intervene" in the "inevitable miscarriage" until the baby's heart stopped beating. Out of fear of prosecution, all that the providers would offer this patient was pain medication and "emotional support".

The new law regarding abortion in the State where this patient lived, required physicians to confirm the absence of a fetal heartbeat before managing miscarriage. The exception to the law would only allow intervention in the event of a "medical emergency", which the law failed to define. The physicians felt that they could only watch, support, and document on the patient's condition while fetal heart activity was still detectable. Unfortunately, they also felt that more aggressive management and treatment would place them at risk for felony charges and/or malparactice litigation.

Within a couple of days, the fetal heart stopped beating. Tragically, the mother died from an overwhelming sepsis infection, due to failure of the physicians to timely anticipate and treat the risk of infection. Responsible care was abandoned out of fear of prosecution. Apparently, no one was sued, the interfering State abortion statute went unchallenged, and a previously healthy patient died because her providers were afraid of losing their livelihoods and/or facing 99 years in prison.1

Criminalization of the "doctor-patient" relationship logically includes hospital midwifery care. Although midwives are dedicated to supporting women through their pregnancies, abortion counseling can be part of the midwife-patient relationship. These very private and difficult discussions are legislated in an increasing number of States, to a point where seemingly private communications are judged as "aiding and abetting" abortion. These interactions are legislated for the purpose of imposing civil and/or criminal penalties. Aiding and abetting, primarily, concerns private discussions that midwives and physicians may have with their patients.

State abortion regulations, incorporating aiding and abetting laws, actually implicate First Amendment free speech for physicians and other individuals. These laws can interfere with a provider's ability to advise patients on their private healthcare decisions. Legal challenges based on the right of Constitutional Free Speech, versus opposing State abortion legislation, are complicated and mind-bending, often requiring Supreme Court scrutiny for resolution.2,3,4

The purpose of this article is not to induce anxiety and fear in everyday practice. It is information to be considered in a developing environment where legislation is infringing on women's health provider's ability to provide compassionate care for patients. I cannot, yet, locate actual cases where providers have been successfully prosecuted under these relatively new State statutes. One case against a physician was brought in Texas, but was eventually dismissed on appeal. It is difficiult to predict the outcome of anti-abortion legislation in women's healthcare and to what extent it will require compromises in practice. Unfortunately, politics in healthcare has potential for harming patients and the medical/midwifery providers that they trust to make ethical and safe decisions.

This information is not intended to keep you awake at night. The aim is to encourage awareness of restrictive legislation that may or may not become more threatening as time goes on. I propose that you become familiar with reproductive healthcare laws in your State. If you practice in an abortion-ban State, it may be wise to review the care legislation that is in place and pertinent to your individual practice. You do not have to read an entire coma-inducing statute. Just attempt to absorb salient points that might represent restrictive boundaries to your care.

The following advice is three-fold; (1): Advocate for your patients, first, and resist fear which encourages panicked decisions and poor patient outcomes. (2): Learn and develop new pathways to responsible practice, if necessary, that are safely within the boundaries of the reproductive laws in your State. (3): Remain alert and informed. Document your decision-making, carefully. Communicate with hospital administration and risk management for support, and always enter these interactions in the medical record.

www.midwivesontrial.com

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1. KXAN/NBC. ProPublica Reporting.

2. United States, CTR. FOR REPROD. SERVS., https://reproductiverights.org/our-regions/united-states [https://perma.cc/84AF-6P39]. This statistic represents the number of States imposing total bans as of March 2024.

3. See, e.g., TEX.PENALCODEANN. 7.02(a)(2) (West 2023) (criminalizing an individual assistinig another in committing a crime): see also Aid and Abet, BLACK'S LAW DICTIONARY (11th ed. 2019) (defining the act as an individual who "assist[s] or facilitates[s] the commission of a crime").

4. See TEX. HEALTH & SAFETY CODE ANN. 171.208(a) (West 2021) (allowing individuals to file lawsuits against another for aiding and abetting abortion procedures)

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