Abortion politics muddy medical waters

When Mylissa Farmer, 41, arrived at a Freeman Health System hospital in Joplin, Mo., with vaginal bleeding and leaking amniotic fluid last August, doctors found that her baby’s amniotic sac had no fluid left. But the baby, not yet 18 weeks along, still had a heartbeat, and Farmer’s vitals were stable—so far.

According to an April document from the U.S. Department of Health and Human Services, medical records from Farmer’s case show the doctors believed inducing labor would have been “the most appropriate management” at the time. But they told her they couldn’t do so because she was stable, the baby was alive, and Missouri’s law protecting babies from abortion only allowed abortion in medical emergencies. They gave Farmer other options: travel to another state with different abortion laws or stay at the hospital for monitoring until she went into labor naturally or developed a condition that met the law’s definition of a “medical emergency.”

Farmer left the hospital a few hours later only to return the next day after a hospital in Kansas City, Kan., also would not induce labor. Other documents connected to Farmer’s case show she eventually made her way to a facility in Illinois. After a nighttime drive with her boyfriend, she arrived in active labor, and staff “perform[ed] a surgical procedure to end her pregnancy.” Farmer survived, but her baby did not.

On May 1, HHS Secretary Xavier Becerra announced an investigation of the hospitals in Joplin and Kansas City, saying they violated the Emergency Medical Treatment and Labor Act by failing to offer Farmer an abortion. That federal law requires hospitals participating in Medicare to stabilize patients experiencing an emergency medical condition regardless of their ability to pay. Farmer’s is one of many similar stories across the country that demonstrate a widespread confusion about the medical exceptions to abortion laws in pro-life states.

While some state governments have clarified their laws, Missouri health officials have provided minimal guidance on emergency situations. Some pro-lifers wish Missouri’s medical boards and the agencies of other states would step in. Others say clarification is unnecessary. Regardless, many agree politics are driving the confusion.

Missouri passed its current abortion law in 2019. The state attorney general began enforcing it on June 24, 2022, minutes after the U.S. Supreme Court issued the Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade. The law states “no abortion shall be performed or induced upon a woman except in cases of medical emergency.”

The prior abortion statute defined “medical emergency” as a condition that requires “the immediate abortion of her pregnancy” to prevent a woman’s death “or for which a delay will create” a risk of a major bodily injury.

Dr. Ingrid Skop, vice president and director of medical affairs for the pro-life Charlotte Lozier Institute, said she understood how the language of immediacy in the Missouri law could be confusing.

“I can see how that would be interpreted to mean, OK, we can’t do this until we see that there’s an imminent risk of death,” Skop said. But she added that her own state of Texas, where abortion is also illegal except to save the life of the mother, does not use the medical emergency language. “And yet exactly the same confusion is happening.”

To Skop, it’s clear Missouri’s law was not intended to put women’s lives in danger. But she said cases like Farmer’s show women are being harmed. The “obvious solution,” she said, is for state medical associations and the Missouri Department of Health and Senior Services to help clarify the legislation for hospitals and doctors.

“I mean, that’s what these bureaucracies are for, is to help legislation be interpreted for the people that it affects,” Skop said.

She added that such clarification is routine in “less politicized” aspects of medicine. But, in the case of abortion laws, “I really do feel like there is ideology behind this,” Skop said. “That there are so many people who want to see pro-life laws fail. That they are intentionally allowing confusion on the ground.”

In a response to my email inquiry, the Missouri Board of Registration for the Healing Arts—the board responsible for regulating physicians in the state—said, “Board staff cannot identify or interpret statutes or provide any legal advice.” The Department of Health and Senior Services sent a link to a PDF published on July 13, 2022. It listed a single page of frequently asked questions related to the state’s abortion law, including: “Can DHSS provide legal advice so that medical professionals and patients can know what is and is not legal?” The answer: “No. DHSS is not authorized to provide legal advice to third parties.” The paragraph links to Missouri’s abortion laws.

Missouri Attorney General Andrew Bailey’s office said the facts in Farmer’s case “are still unclear” but that “it has always been the case that Missouri law does not prohibit life-saving care for mothers.”

Similar government agencies in other states have already clarified abortion laws. Nebraska’s chief medical officer in April released a statement explaining how to apply heartbeat legislation that the legislature hadn’t yet voted on. In August 2022, the attorney general of Oklahoma released a statement telling law enforcement they should be wary of prosecuting in a case involving the life exception “when no pattern or trend exists, and where evidence of criminal intent is unclear.”

Sue Swayze Liebel, director of state affairs for Susan B. Anthony Pro-Life America, said her organization has encouraged policymakers in other states to tell their health departments to release similar guidance.

But in Missouri, state Sen. Mary Elizabeth Coleman, one of the law’s architects, said she doesn’t think the legislature or state agencies need to clarify the law. “I think that when you’re a lawyer who is practicing in this area, it is clearly written as it stands. I don’t believe there are needs for more additional language.”

In Farmer’s case, Coleman said she thinks the hospital focused too much on the medical emergency exception instead of the actual definition of abortion in the state statute. Abortion, it says, is acting with “the intent to destroy the life of an embryo or fetus in his or her mother’s womb” or ending a pregnancy “with an intention other than to increase the probability of a live birth.”

“It would not classify as an abortion to induce labor,” said Coleman. “The intention is to end the pregnancy, but not to end the life of the child. And if the child were to live or to die, it would be based on the gestational age of the child, not the intentional killing in the womb of the unborn child.” Coleman acknowledged that children born around the gestational age of Farmer’s baby usually die soon after birth, but that’s because the medical industry doesn’t currently have the technology to save them.

Coleman said she believes the confusion over the law is an “intentional misunderstanding of the state statutes for political reasons.”

Dr. Josephine Glaser, a board-certified family practice physician in St. Louis, agreed that the Missouri doctors in Farmer’s case could have legally induced labor during one of Farmer’s visits to their hospital. But she also emphasized that any doctor who is looking out for the interests of both mother and baby would exhaust all other options to protect the mother before recommending delivery.

In a case like Farmer’s, in which the woman’s water has broken but she has normal vital signs, Glaser said she would not immediately induce labor. Instead, she would monitor the mom and baby as the pregnancy continues, as the Joplin hospital offered to do for Farmer. The woman will likely go into labor naturally on her own—which is exactly what happened to Farmer while in the car on the way to the Illinois facility. Meanwhile, Glaser would prepare the mother for the likelihood of her child’s death and prepare the medical team to manage any complications. She noted that a woman in Farmer’s condition would be safer staying in one location where a medical team could monitor her rather than driving to another state.

To Glaser, the law is clear as-is and protects efforts to save a mother’s life, even if the baby might die as a result. “It’s the intent, right?” she said. “The intent is not to electively end the life. The intent is to preserve both lives in the emergency situation.”