In early October, an Idaho woman 20 weeks into her pregnancy went to the emergency room after her water broke about five months early.
When the water breaks prematurely, an infection can develop and infect the fetus, placenta and other fluids. At that stage of pregnancy, the threat of infection becomes a ticking clock for everyone involved.
And in this case, time was already running out.
At 20 weeks, there is virtually no chance a fetus can survive outside of the womb even with medical intervention — the heart and lungs are too immature. And once an infection reaches the uterus, it is systemic, so there isn’t enough time to allow the fetus more days in utero.
The condition can progress to a blood infection called sepsis within a matter of hours, then septic shock, which can cause organ failure in as little as 12 hours, according to medical research. More than one quarter of patients who develop sepsis die. And if the patient survives, merely having the infection can leave them with permanent organ damage and other long-term health effects.
In another state, a doctor would be able to induce labor and let the patient deliver if that was their wish, then offer palliative care so the parents could hold their child until it passed.
But in Idaho, a state with a strict abortion ban, the doctor had limited options. The law does not allow for termination to preserve a person’s health, only to prevent death. And hours could pass before the hospital’s legal, administrative and medical teams might approve the decision to terminate the pregnancy and properly care for the infection.
So rather than roll the dice, the doctor ordered the woman transferred in the hospital’s small airplane to Salt Lake City, Utah — a state that has an 18-week ban, but also an exception to preserve the pregnant person’s health.
It’s a scenario physicians have warned about in the year since the Dobbs decision, when 14 states implemented near-total abortion bans. Doctors in ban states, including those with health exceptions, have said the exception language is written so vaguely that it is essentially meaningless, and hospitals have adjusted their policies to protect doctors from potential criminal charges and loss of medical licenses. Several states with a general health exception don’t include fatal or life-limiting fetal anomalies.
On that day in October, the stakes felt especially high for physicians in Idaho. In a 12-day period, the U.S. 9th Circuit Court of Appeals struck down, then reaffirmed, an order protecting doctors from prosecution under the state’s abortion law. Judges initially ruled that the law’s exception permitting an abortion to prevent the pregnant person’s death was sufficient for ER physicians to avoid violating the federal Emergency Medical Treatment and Labor Act — known as EMTALA. But the ban does not include a health exception, while EMTALA requires ER physicians to provide a patient with stabilizing care or risk losing Medicare funding, potentially putting the two laws in conflict. On Oct. 10, the full court restored the protection for now.
In the span of time between the two rulings, 11 St. Luke’s patients were transferred for pregnancy-related complications, said spokesperson Christine Myron, which is a typical amount of pregnancy-related transfers in that time frame. Seven were within the hospital’s network and four were sent out of state.
The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with abortion bans — Idaho, South Dakota, Oklahoma, Arkansas, Wisconsin and Mississippi — do not have language in their laws that would allow for abortion to protect a person’s health, only to prevent death.
In all five states, legislation has been drafted to add a health exception, and in many cases, it is Republican lawmakers who are coming forward with proposals to add it. But with ongoing court battles, partisan fights between Republicans at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts have failed during each state’s respective 2023 legislative sessions.
Idaho Republican lawmaker: Health exception issue ‘has to be dealt with’
Idaho’s Legislature nearly advanced a bill that would have added an exception for an abortion to be performed “to treat a physical condition of the woman that if left untreated would be life-threatening.” Rep. Brent Crane, who took office in Idaho’s House of Representatives in 2006 on the promise of advocating for anti-abortion legislation, worked on the bill for months with the founder of Idaho Chooses Life and the Idaho Medical Association.
The night before the bill was scheduled to receive a hearing in the House State Affairs Committee, Idaho Republican Party Chairwoman Dorothy Moon sent an email to the party’s distribution list that said the legislation was the medical association’s attempt to bring abortions back to Idaho as part of a “closed-door, back-room deal.” She called the association a “progressive trade organization” with doctors educated “in some of the farthest left academic institutions in our country.”
The Idaho Medical Association has more than 4,000 members, half of whom are actively practicing physicians and others who are retired physicians, physician assistants, nurse practitioners and medical students.
The email included the names and phone numbers of the committee’s Republican members and encouraged recipients to voice their opposition to the bill. The following morning, Crane pulled the bill from the agenda, and the version that became law did not include the health provision language. In the following months, more physicians and maternal-fetal medicine specialists have left the state, with some citing the abortion laws as the reason for their departure.