Fetal Anomalies: Individuals also seek abortions later in pregnancy due to medical reasons. With medical advances, many genetic fetal anomalies can be detected early in pregnancy; for example, chorionic villus sampling can diagnose Down Syndrome or cystic fibrosis as earlier as 10 weeks gestation. Structural fetal anomalies, however, are often detected much later in pregnancy. As part of routine care, a fetal anatomy scan is performed around 20 weeks, which entails ultrasound imaging of all the developing organs. Many structural anomalies are discovered at this time that would not have been apparent previously. A proportion of these are lethal fetal anomalies, meaning that the fetus will almost certainly die before or shortly after birth, meaning the fetus may be nonviable (consensus does not always exist as to which anomalies are fatal, and thus nonviable). In these cases, many individuals wish to terminate their pregnancies, rather than risk carrying the pregnancy until the fetus or newborn passes away. Very often these pregnancies are desired, making this decision exceedingly difficult for parents. Inadequate data exist to know how many abortions later in pregnancy occur due to fetal anomalies, but a study by Washington University Hospital showed almost all women whose fetuses had lethal fetal anomalies chose to terminate their pregnancies. Three (Alabama, Indiana and West Virginia) of the fourteen states with abortion bans and five states with early gestational bans (Florida, Georgia, North Carolina, South Carolina, and Utah) currently have exceptions for pregnancies with lethal fetal anomalies, but it is unknown whether any abortions under these exemptions have occurred. Among the states with viability or near viability bans, Delaware, Maryland, Massachusetts and New Hampshire have exemptions for fetal anomalies. Pregnant people who reside in states where abortion is banned and with no fetal anomaly exceptions who are unable to travel out of state can be forced to carry their pregnancies to term and deliver infants who are stillborn or die shortly after birth.
A 2011 survey of maternal fetal medicine (MFM) doctors—specialists who manage pregnancies with fetal anomalies— found most agreed that termination of pregnancy due to a lethal fetal anomaly should be allowed in all circumstances (76%). The majority (75%) discuss abortion as a management option soon after diagnosing a lethal fetal anomaly, but services for terminating pregnancies in these scenarios are limited. Even over decade before the Dobbs decision, only 40% of MFM doctors worked at healthcare centers offering abortions past 24 weeks for lethal fetal anomalies. An additional 12% knew of available services <50 miles away.
Health Risk to the Pregnant Person: Life threatening conditions may also develop later in pregnancy. These include conditions like early severe preeclampsia, newly diagnosed cancer requiring prompt treatment, and intrauterine infection (chorioamnionitis) often in conjunction with premature rupture of the amniotic sac (PPROM). If these conditions occur in a state where abortion is legal, the pregnant individual may pursue termination of pregnancy to preserve their own health. All states that ban abortion, have gestational bans, or limit abortion at or near viability, have exceptions allowing for abortions to occur when the life of the pregnant person is in danger, and 37 states have exceptions for when the health of the pregnant person is at risk (Figure 5). Former President Donald Trump reportedly supports a 16-week national abortion ban with exceptions for when the life of the pregnant person is in danger and in cases for rape or incest, but the 16-week national ban would not have an exception for when the health of the pregnant person is at risk. It is likely that a ban such as this would be structured so that it would limit abortions in states that currently permit abortions later in pregnancy, but allow states with abortion bans or gestational restrictions to keep their laws in effect.
The legal standards states use to determine when a pregnant person qualifies for a life or health exception can be ambiguous, with some standards leaving physicians in a legally vulnerable position that allow a prosecutor to bring an expert witness to contradict the physician’s medical judgment. In a recent case out of Texas, Kate Cox, a pregnant women seeking an abortion, sought a court order that would have allowed her to have an abortion under the exceptions to the Texas abortion ban. Fearing prosecution for providing abortion care that she believed it fit under the abortion ban’s exception based upon her good faith medical judgement, Ms. Cox’s physician asked a Texas District Court to determine that providing the abortion was not a violation of the state’s ban. While the District Court agreed with the plaintiffs that the case qualified for an exception, the Texas state Attorney General wrote a letter to the hospital stating that his office would still enforce the state abortion ban if abortion care was provided. Consequently, the Texas Supreme Court overruled the lower district court, finding that the physician’s “good faith belief” was insufficient to qualify for the exception, and only abortions that are certified to be necessary under the “reasonable medical judgement” standard are allowable under Texas law.
In states where abortion is banned, there have been questions and confusion about how ill a pregnant person must be for an abortion under a health exception to be performed. There are reports of patients having health complications that are not life threatening at the moment they are seeking care, and being sent home and subsequently developing serious complications that do threaten their lives as a result. In Idaho, Indiana, Tennessee, and Texas, physicians and people who were denied abortion care despite facing pregnancy complications that jeopardized their health have filed lawsuits regarding harms experienced as a result of the lack of health exceptions in their respective state abortion bans. They are asking for courts to clarify the scope of the state bans’ health exceptions and for physician judgment in making determinations about abortion as a medical treatment for emergent conditions to be granted greater deference.
In July 2022, the Department of Health and Human Services (HHS) issued guidance regarding the enforcement of EMTALA (Emergency Medical Treatment and Active Labor Act), the law that requires hospitals that take Medicare enrolled patients to perform appropriate medical screening examination to any patient who presents at the emergency department and to provide stabilizing care to patients identified as having an emergency medical condition. The 2022 guidance clarifies that hospitals and physicians have obligations to provide stabilizing care, including abortion in medically appropriate circumstances, when a patient presenting at an emergency department is experiencing an emergency medical condition. Since the guidance was issued, HHS has sued the state of Idaho for their abortion ban, which did not contain exceptions for health, and the state of Texas has sued to block enforcement of the guidance in Texas. The two federal district courts that have considered this issue have reached opposite decisions. In Texas, a federal district court blocked HHS from enforcing the EMTALA guidance in Texas and the Biden administration has appealed this decision to the 5th Circuit Court of Appeals. In Idaho, a federal district court issued a temporary stay blocking part of the Idaho ban, which was also stayed by the 9th Circuit Court of Appeals. However, in January 2024, the Supreme Court of the United States agreed to hear the Biden Administration’s challenge to the Idaho abortion ban and allowed Idaho’s ban to be fully in effect while the litigation is ongoing.
Have states taken action to expand access to abortions later in pregnancy?
Recognizing that access to abortions later in pregnancy can be a health preserving or life-saving medical service to a small group of pregnant people, yet very difficult to access, a few states have sought to expand access to abortions later in pregnancy. The New York Reproductive Health Act enacted in January 2019 expanded protections for abortion providers and pregnant individuals who have abortions after 24 weeks in cases of health or life endangerment or lethal fetal anomalies. In May 2023, Minnesota repealed its viability ban and in July 2023, Maine enacted L.D. 1619, allowing abortions after viability anytime a doctor deemed them medically necessary. Previously the law only allowed abortions after viability if the pregnant person’s life was in danger.
The authors would like acknowledge Gabriela Weigel, MD, former KFF-UCSF Fellow, who co-authored the 2019 version of this brief.
The authors would like to acknowledge Jennifer Karlin, MD, PhD (University of California, San Francisco) for her review of an earlier version of this brief.
Appendix
Endnotes
Berglas NB, Schroeder R, Kaller S, Stewart C, and Upadhyay UD. Change in service availability of 2nd and 3rd trimester abortion care following Dobbs. Society of Family Planning Conference, October 2023.
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Also of Interest
Key Facts on Abortion in the United States
A Review of Exceptions in State Abortion Bans: Implications for the Provision of Abortion Services
Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts
State Profiles for Women’s Health
Abortion in the United States Dashboard
EDUCATE,ILLUMINATE,RE EVALUATE YOUR POSITION.....U DO NOT HAVE TO CARRY THE HUMAN IN YOUR BODY....when shit hits the fan and u have found unfathomable facts that shatter u. it's called EMPATHY.