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Texas laws say treatments for miscarriages, ectopic pregnancies remain legal but leave lots of space for confusion

By María Méndez, The Texas Tribune

Texas laws say treatments for miscarriages, ectopic pregnancies remain legal but leave lots of space for confusion” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Treatments for miscarriages and ectopic pregnancies are still legal under the state’s abortion ban, according to state law and legal experts. But the statutes don’t account for complicated miscarriages, and confusion has led some providers to delay or deny care for patients in Texas.

Texas laws banning abortions make narrow exceptions only to save the life of a pregnant patient or prevent “substantial impairment of major bodily function.” And lawmakers in recent years have clarified state statutes to say treatments for miscarriages, known as “spontaneous abortions” in medicine, and ectopic pregnancies, in which a fertilized egg grows outside of the uterus and becomes unviable, do not count as abortions.

But the lack of clarity accompanying the threat of jail time and six-figure fines for medical professionals has led some hospitals and doctors in the state to deny or delay care for pregnancy complications, according to multiple reports. Doctors and experts also worry that patients with pregnancy complications may be too afraid of being accused of inducing an abortion to seek care.

Delays in care — particularly for first-trimester conditions such as bleeding, hemorrhaging, septic miscarriages and ectopic pregnancies — can become lethal, said Dr. Natalie Crawford, an OB/GYN and cofounder of a fertility clinic.

“Those can be acute life-threatening emergencies,” she said.

That’s why Crawford said it’s important for patients to quickly seek medical care if they notice their pregnancy isn’t progressing normally or they are bleeding.

“If you’re having severe pain, if you’re getting a fever, you need to keep your medical team in the loop,” Crawford said. “We want to keep you safe.”

In cases in which a medical provider may be hesitant to conduct a needed treatment, it’ll be critical for patients to stay informed, seek help or get more than one medical opinion, said Joanna Grossman, a professor at Southern Methodist University’s Dedman School of Law.

“More than ever, I think people, patients really need to be extremely well-informed and really aggressive about advocating for their own health because the system right now is basically designed to fail,” she said.

But for patients facing a medical emergency, or low-income or uninsured Texans, seeking a second opinion may not be possible.

The American College of Obstetricians and Gynecologists has information on early pregnancy loss, finding an OB-GYN and having better conversations with your doctor.

Texas’ abortion laws penalize the person who performs an abortion and, under a state law from 1925, anyone who “furnishes the means” for an abortion. But the National Advocates for Pregnant Women provide free legal assistance to women who have been charged with a crime because of a pregnancy loss like a miscarriage. You can reach them at 212-255-9252.

Delays in care

Last week, the Texas Medical Association warned that several hospitals in the state have turned away or waited to treat patients with pregnancy complications — including a physician in Central Texas who was allegedly instructed by a hospital to not treat an ectopic pregnancy until a rupture occurred. Such a rupture can be life-threatening.

“To the extent anybody is delaying or denying care for ectopic pregnancy, they are simply misunderstanding the law,” Grossman said.

But things can be murkier when it comes to treating miscarriages, she said.

A miscarriage is generally defined as the loss of a fetus before the 20th week of pregnancy typically because of complications outside of a patient’s control. About 10% to 20% of confirmed pregnancies end in miscarriages, but estimates are as high as 30% to 50% for all pregnancies, including those in which a person may not know of the pregnancy.

There is no treatment to stop a miscarriage once it has started, and miscarriages can become life-threatening to the pregnant patient if complications are untreated.

But in cases of unviable pregnancies in which fetal cardiac activity can still be detected, treatment to remove the expected miscarriage could be considered illegal under Texas’ laws, Grossman said.

“What you’re really worried about is that period of time when what’s going to be a miscarriage, if you let it take a natural course, might cause severe suffering, and/or death to the mother, to the pregnant person,” she said. “If you do something to prevent that, you might be in fact performing an illegal abortion.”

That’s what recently caused Dr. Jessian Munoz, an OB-GYN in San Antonio, to wait a day to treat a patient who had started to miscarry and developed a womb infection, according to the Associated Press.

“We physically watched her get sicker and sicker and sicker,” he told the AP. The patient lost liters of blood and had to be put on a breathing machine because of the 24-hour delay in care.

Another patient in Dallas was denied a surgical procedure for a miscarriage, according to The New York Times, and a Texas woman told CNN she had to carry her dead fetus for two weeks until she could find an OB-GYN willing to remove it. A recent study also reported 28 women with dangerous pregnancies at two Texas hospitals faced delays for care because fetal cardiac activity was detected, according to the AP.

Given the state’s severe penalties, Grossman said medical professionals and their legal teams might err on the side of caution in regard to the law, even if it puts patients at risk.

“The way the system is going to work is that the patients are going to always pay the price,” Grossman said. “Because the providers have a choice whether to provide and the patients are the ones who need the care. But the incentives are all very strong for those providers to err on the side of not providing care.”

There have been no criminal charges against providers since the U.S. Supreme Court’s decision in late June to overturn the constitutional right to abortion access that was protected by Roe v. Wade, but anti-abortion groups and state lawmakers have threatened to ramp up the pressure against abortion providers and their allies.

The Biden administration last week told hospitals they must treat pregnant patients who need an abortion to stabilize a life-threatening condition. Texas Attorney General Ken Paxton quickly sued the Biden administration over the federal guidance.

Federal law typically trumps state laws, but it will now be up to courts to decide whether that will be the case in this instance.

In the meantime, Grossman said the delay and denial of care will likely become more common.

Denials at the pharmacy

Confusion around the laws has caused issues for patients outside of emergencies. Crawford, the OB/GYN and fertility clinic co-founder, said she’s seen instances of pharmacies not wanting to fill prescriptions for certain medications that are related to abortions but being used for other treatments.

This represents more confusion around state policy. While another law enacted last year forbids dispensing and shipping abortion-inducing medications like misoprostol, mifepristone and methotrexate past seven weeks of a pregnancy, it makes exceptions for when the drugs are used for “other medical reasons.”

Misoprostol is used to help prevent stomach ulcers, but it can induce abortions, particularly if taken along with mifepristone. For patients who are not pregnant, it can also open up the cervix and make surgeries safer, Crawford said.

Methotrexate, another abortion-inducing medication, is used to treat ectopic pregnancies as well as rheumatic illnesses, inflammatory bowel disease, psoriasis and cancer.

Dr. John Thoppil, president of the Texas Association of Obstetricians and Gynecologists, said doctors usually note a diagnosis when prescribing medicines, and prescription rejections don’t appear to be widespread. He said the association has been in communication with some pharmacy leaders to “help clarify proper interpretation of the rules.”

If patients run into trouble filling prescriptions, Thoppil and Crawford say they should try to find another pharmacy or talk to their health care provider.

“We haven’t seen a large issue, but there are certainly anecdotes,” Thoppil said. “Thankfully, I think there’s still plenty of pharmacies that understand the proper utilization of some of the medications we use for nonelective [pregnancy] terminations.”

Disclosure: Southern Methodist University, Texas Medical Association and New York Times have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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