Doctors are preoccupied with threats of criminal charges in states with abortion bans, putting patients’ lives at risk

By Sophie Bjork-James, Vanderbilt University; Anna-Grace Lilly, University of Toledo, and Isabelle Perry Newman, University of Virginia

Abortion bans are intended to reduce elective abortions, but they are also affecting the way physicians practice medicine.

That is the key finding from our recently published article in the journal Social Science & Medicine.

Medical providers practicing in states that implemented abortion bans in the wake of the 2022 Dobbs v. Jackson Women’s Health Supreme Court decision are forced to balance the needs of their pregnant patients against the risk that the providers could be prosecuted for treating these patients. This dilemma has serious and far-reaching consequences.

We interviewed 22 medical providers working in reproductive health care across Tennessee in the six months following the implementation of the state’s total abortion ban in 2022.

Providers spoke with our team about the need to protect themselves from criminal liability and told us that they were increasingly hesitant to provide care that their patients needed.

The study took place in Tennessee, a state that has had a near-total ban on abortions since 2022. Anchiy/E+ via Getty Images

Why it matters

A 2024 ProPublica investigation found that at least two women have died in Georgia as a result of being denied medical care stemming from the implementation of these abortion bans. Nearly all of our interviewees spoke about their fear that these kinds of deaths would happen.

Providers told us that patients often believe that these bans include exceptions when the health of the pregnant person is at risk, but that is not always true in practice.

The Tennessee abortion ban allows for an “exception for situations where the abortion is necessary to prevent the death of a pregnant woman or prevent serious risk of substantial and irreversible impairment of major bodily function.”

The problem is that such cases are rarely clear-cut. And the stakes for health care providers are very high. In certain states, including Tennessee, if they are found to have provided an abortion in a case where the mother’s life or health was not imminently at risk, they can face felony charges, which could include multiple years in prison.

In interviews, providers described many cases where terminating a pregnancy is medically necessary for the pregnant person. Take cases of preterm premature membrane rupture, a condition where a pregnant person’s water breaks before 37 weeks of pregnancy. Serious complications can follow a premature membrane rupture, particularly in cases that do not result in the beginning of labor.

The standard treatment for this condition is to induce labor in an effort to prevent such potential medical complications. However, if it is early on in a pregnancy and the fetus would likely not survive outside the womb, this treatment is now discouraged, as the law does not sufficiently clarify what interventions are allowed to protect the pregnant person.

In many cases, the physical harm the pregnant person is experiencing correlates with the level of legal protection a medical provider receives.

Although doctors are trained to follow best practices around health care treatment, fear of malpractice accusations leads to the widely documented practice of defensive medicine, cases where providers either over-administer testing or avoid risks in an effort to prevent malpractice lawsuits.

Abortion bans make this dynamic far worse because they often involve the threat of criminal prosecution, which is not covered by malpractice insurance. This exposes providers to a new form of risk, one that is shaping how providers interact with patients and provide care.

Our team calls this new form of defensive medicine “hesitant medicine.” Providers are forced to prioritize their own criminal legal protection over the well-being of their patients, so they hesitate to provide treatment that patients need. Hesitancy is exacerbated by bans that are ambiguous about when a provider can intervene during a pregnancy complication.

What’s next

It will take years before researchers have data showing the full picture of how abortion bans are affecting women’s reproductive health. However, our interviews show that these bans are already shaping how providers are treating pregnant people.

A majority of our interviewees had considered moving to a state without an abortion ban to practice medicine with far less stress around the threat of criminal prosecution, a trend that is already occurring. Over time, this exodus of providers could exacerbate the problem of health care deserts in the United States.

To mitigate some of this harm, more effort is needed from medical associations, employers and legislatures to clarify or revise the Tennessee “Human Life Protection Act” in a way that better protects women’s health.

Sophie Bjork-James, Assistant Professor of Anthropology, Vanderbilt University; Anna-Grace Lilly, Medical Student, University of Toledo, and Isabelle Perry Newman, Medical Student, University of Virginia

This article is republished from The Conversation under a Creative Commons license. Read the original article.