'It's designed to chill abortion access': Doctors, lawyers face vague exceptions

North Carolina doctors and lawyers are attempting to develop guidelines on how to follow a reinstated 49-year-old law that bans abortions after 20 weeks of pregnancy except to save the life of a pregnant person. 

It has proven difficult to define all the medical emergencies that could potentially result in a pregnant person’s death or serious injury – as well as the punishment for doctors if an abortion is not deemed part of this category.

According to state law, a medical emergency is defined as a complication to the medical condition of a pregnant person that leads to “the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function.”

UNC Public Policy Professor Rebecca Kreitzer said statutes like North Carolina's use language that might be interpreted in different ways due to their vagueness. 

“There's so many different phrases in there that could be unpacked,” she said. “What does a physical impairment of a major bodily function mean? What constitutes a bodily function? How close do you have to be to death?”

Kreitzer also said some hospital legal teams might advise doctors against providing abortions after 20 weeks under circumstances that could be interpreted as unfit under narrow definitions of a medical emergency. 

“Even if a patient does fit the bill and fits under these narrow guidelines, it often means that the doctors have to go through a number of steps to really document how close the person is to being sick and how dangerous the situation is, which can add a dangerous amount of time before somebody can get the health care that they need,” she said. 

Dr. Amy Bryant, an OB-GYN in Chapel Hill, said she has had to turn away people seeking abortions beyond the 20th week of pregnancy due to the ban. 

She said this even included an individual carrying a fetus with a lethal anomaly – a condition that will result in the fetus' death.

“Instead of us being able to prevent that pregnancy from continuing, we've had to send people to other states for that care,” Bryant said. 

As some states around North Carolina entirely outlaw abortion and others somewhat restrict access, medical professionals must grapple with legal language that might not address all the medical situations of the patients who come into their clinics and hospitals. 

“Everything is really up in the air right now, as there's a lot in flux, even in North Carolina, but also all of our surrounding states as well,” Kreitzer said. 

She also said the uncertainty created by the vague language of abortion bans can be intimidating for both providers and patients. 

Maxine Eichner, a UNC law professor, said medical situations often do not directly mirror the language of a legal statute.

“Even really well-meaning hospital administrators, physicians and other healthcare providers may be extra cautious and conservative and making decisions out of a fear of reprisal," she said. "And the fear of reprisal is pretty substantial right now because there's such a lack of certainty about it."

North Carolina requires doctors who provide an abortion after the 16th week of pregnancy to send to the North Carolina Department of Health and Human Services the method used to determine the gestational age of the fetus, the results of the methodology and "an ultrasound image of the unborn child that depicts the measurements," as said in state law. 

The state also requires that medical professionals who cause a miscarriage or provide an abortion after 20 weeks of pregnancy “record the findings and analysis on which the qualified physician based the determination that there existed a medical emergency” to the NCDHHS. 

Since doctors are facing the possibility of legal consequences, some may be hesitant to provide abortions at all. 

Kreitzer said part of the issue with the language used in abortion bans and medical exceptions is that they are written by policymakers who lack medical knowledge. 

“Health experts are uniquely insightful into understanding the conditions under which somebody should be legally allowed and able to get an abortion,” she said. “And I think when policymakers tried to preemptively anticipate those things, it's impossible for them to anticipate all situations.”

Bryant also said it is difficult for people without medical knowledge to fully understand situations where an abortion might be necessary. 

“I think most lay people, of course, don't have a real understanding of the health consequences, or the realities or the difficulties and challenges of some pregnancies,” she said. 

As doctors and lawyers continue to make sense of a changing abortion landscape, Eichner questioned the intent of the vague language of state laws. 

“The reasonable conclusion here is legislators aren't trying to pinpoint these issues as clearly or as well as they certainly could,” Eichner said. “Instead, some of this imprecision is deliberate – and it's designed to chill abortion access.”

@emmymrtin

@DTHCityState | city@dailytarheel.com 

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