What counts as a "life saving" abortion under Michigan's law? Experts say it's not clear
Dr. Lisa Harris treats women whose pregnancies need to be terminated in order for them to survive. Some have life-threatening pre-eclampsia, she says, or another illness that’s become critical because “pregnancy is putting extra stress on all of their organs.”
“Me and my colleagues have all performed abortion care in intensive care units in the hospital, because we're trying desperately to save someone's life, someone who's critically ill,” said Harris, an OB-GYN and professor at the University of Michigan.
But their ability to do that could change overnight. If the U.S. Supreme Court strikes down Roe v. Wade, as a leaked draft opinion suggests it will, then Michigan’s 1931 law criminalizing abortions would go into effect immediately, according to state Attorney General Dana Nessel. The law is one of the strictest in the nation, and doesn’t have exemptions for rape or incest. It only allows abortions when they’re to “preserve the life” of the woman.
“Prosecutors … could bring the case when they find out that there's been an abortion, and then it would be up to the doctor or the physician or whoever the abortion provider is to use [the exception] as an affirmative defense, much like you would with a self-defense case,” Nessel said at a press conference Tuesday.
Nessel said while her own office wouldn’t enforce the law, county prosecutors could.
“Now the burden shifts to the [provider] to say, ‘Yes, I performed the abortion; however, it was necessary to save the life of the mother.’ And then it basically could be a contest of experts, because you'll have to say, ‘It's not just that this woman could have been seriously injured or harmed or that there were some other medical emergency.’ You would have to actually show that the woman was going to die, or it would still be a crime.”
To medical experts, that’s dangerously ambiguous. For a woman with cardiac disease, the leading cause of death in pregnant women, the risk of dying in pregnancy could be between 20% and 30%, Harris said. But medical professionals will now have to decide if that is, in fact, risky enough.
“Is that enough of a chance [of death] or does it have to be more? I hate to even put it like that,” said Harris, who was a guest on Michigan Radio’s Stateside. “But is that enough of a chance of dying that that person would qualify under Michigan's ban for a lifesaving abortion? Or would their risk of dying need to be 50% or 100%? And so those kinds of things are very unclear.”
It’s also unclear whether a woman whose pregnancy would only become life threatening in its later stages, would be required to delay termination until then.
“We see people with things like kidney disease or other problems, where they're actually okay during early pregnancy. But if the pregnancy were to continue and they were to give birth, then they would have a very high chance of dying. So could someone request an abortion early in pregnancy, even though their risk of dying might not be [until] later?”
Another area of uncertainty: cancer treatments. Women who need to undergo chemotherapy or radiation may choose to end their pregnancies in order to start treatment, Harris said.
“So there's not an imminent risk of dying, but there might be a risk of dying years later if they didn't have chemotherapy or didn't have other treatment immediately,” she said. “These are the kind of situations doctors are wondering about.”
But perhaps the highest health burdens would fall on Black women: research suggests that a ban on abortions would raise maternal mortality rates for Black women by 33%, and for all women by about 21%. “It’s astounding,” Harris said. “And it’s going to become an even more urgent need to address this in the wake of an abortion ban.”
The confusion and uncertainty alone could be enough for some healthcare professionals to simply stop offering abortions, Nessel said.
“I think that this will have the kind of chilling effect that doctors just simply will not perform this procedure really under any set of circumstances, because they don't want to get dragged into court,” she said. “They don't want to face the possibility of being prosecuted and the possibility of going to jail or prison. So I think that that honestly, even under very serious sets of circumstances, you'll have doctors that really have to violate their Hippocratic oath and just say, ‘I'm sorry, I can't help you.’”
That’s what healthcare workers in Texas are already doing, Harris said. Last year, the Texas legislature enacted a ban on abortions once a fetal heartbeat can be detected, which is usually around 6 weeks into a pregnancy.
“When I talk to my colleagues [in Texas], the pain that they are experiencing, because of the pain and distress of their patients, it's so evident on their faces and in their souls, really. They cannot care for most people who come to them. And many of those people will not be able to leave the state to seek care and will continue pregnancies that they don't want to continue.”
For doctors in Michigan, insurance could be another hurdle under the state’s 1931 law. Insurance carriers could start asking medical professionals whether they perform abortions, Nessel said.
“And if the answer is yes, I think a lot of insurance carriers are just going to say, ‘Well, then we're not going to insure you under those circumstances.’ So what I see happening is just basically not having any abortion providers at all in the state of Michigan. And my grave concern is that you are going to have women who are going to die” as a result.
Dr. Lisa Harris was a guest on Stateside on Tuesday, May 3, 2022. You can hear that full conversation in the audio player at the top of this post.