How overturning Roe v. Wade would change Utah abortion exceptions

The exceptions in Utah’s abortion ban won’t actually protect patients in most medical complications if Roe v. Wade is overturned, doctors and legal experts say.

Driving the news: Utah’s ban includes language that may make it impossible for most patients to claim an exemption to the state’s potential law. The ban would take effect this summer pending a final ruling from the US Supreme Court.

• Exemptions would include things like birth defects and health threats to the mother.
• Yes, but: Doctors say medical diagnoses would require a level of certainty that is seldom clinically possible.

Birth defects must be “uniformly diagnosable” and “uniformly lethal” or cause a patient “to live in a mentally vegetative state” to qualify for an abortion under Utah’s ban.

• That could exclude some severe disorders like trisomies 13 and 18, even though they usually end in miscarriage and most babies die within a week or two of births.
• Birth defects sometimes occur in combinations that make a baby’s survival all but impossible, said Dr. Lori Gawron, a Salt Lake City obstetrician and officer for Utah’s ACOG section.
• But doctors may not be able to judge the severity of each defect with total certainty, or point to research that shows a given combination is “uniformly lethal.”

What they’re saying: A “vegetative state” is something that “nobody can truly predict,” Gawron said. “We can say what the risk of that would be. But does it have to be 100% risk in order to qualify?”

Meanwhile: A patient may not be able to find two doctors — as the law requires — who are willing to affirm such extreme criteria, Leslie Francis, a University of Utah professor of health law, told Axios.

Health threats to the pregnant patient only qualify if abortion “is necessary to avert” death or “serious risk of substantial and irreversible harm to a major bodily function.” Gawron said neither of those is clinical distinctions.

• For example, if a patient’s water breaks midway through pregnancy, there is a high risk of infection, which can lead to death and infertility.
• But doctors can’t immediately know how soon that may happen or how severe it may become if the pregnancy continues — or whether their county prosecutor will disagree with their judgment and charge them.
• The word “necessary” also poses problems, Francis said. She posed the scenario of a doctor performing an abortion to allow for chemotherapy but the patient dies of cancer anyway. “Has the abortion proved unnecessary to avert their death?” she asked.

Context: Utah doctors are already hesitant to perform emergency abortions that are supposedly exempt from the state’s existing 72-hour required wait.

• Gawron said she frequently fields calls from OBs who “are trying to figure out whether they can proceed even in the setting of a life-threatening situation to the mother, without checking these boxes.”
• The risk of hesitation, which could lead to deadly results, is likely to worsen if Utah’s trigger law takes effect, Gawron said. “When the outcome is a second-degree felony, … I think that women are going to be put at significant risk,” Gawron said.

By the numbers: From 2015 to 2019 Utah recorded 60 abortions for maternal health and 214 for “fetal malformations.” Combined, that’s about 2% of all abortions in the state. It’s not known how many of those would still be available under the pending ban.

zoom out: Polling nationwide and within Utah suggests public support for new restrictions is largely predicated on medical exceptions.

• But legislators who passed Utah’s trigger ban have bragged about how limited the state’s exceptions are, and Republicans have discussed eliminating them altogether.
• Many patients who receive abortions due to medical complications are already blindsided by existing restrictions, such as being forced to complete a state “information module” and Medicaid not covering abortions, said Dr. Cara Heuser, a Salt Lake County obstetrician.
• Salt Lake County District Attorney Sim Gill told Axios he will not enforce an abortion ban, but he suspects some prosecutors will face political pressure to punish doctors to the fullest extent of the law.

What’s next: Utah specialists in maternal-fetal care are in discussions to unite around certain circumstances where abortion is clearly medically justified, at least in the spirit of the trigger law, Heuser told Axios.

• Prosecutors may be less likely to charge doctors if they will have to overcome an expert consensus in a trial.
• “The more we as a medical community can try to be on the same page with what these laws mean … or ought to mean that does give us some protection,” Heuser said.