Illegal Jobs: Abortion Doctors/Clinics & The Challenges They Face

In their Maternal and Child Health Journal article, Pari Chowdhary, Anna Newton-Levinson, and Roger Rochat reported what abortion providers identified as challenges they face. In order to preserve women’s access to safe abortion procedures in post-Roe America, there needs to be a “steady maternal health workforce,” but the restrictive laws in place in some states have caused regional provider shortages. Those who do provide abortion services regard this “restrictive legislation” as a significant challenge causing domino effects, such as “institutional separation of abortion from other medical services, training unavailability, safety concerns, identity struggles, and marginalization within their profession.” Abortion providers currently face stigma and isolation not only within the environment of healthcare work (their occupational world) but in their lives as well. Although some providers are driven by restrictive laws to practice in states without them, some choose to continue practicing despite challenges because they want to make a difference in areas of high need and to combat disparities in healthcare access… or simply because they have personal ties to the state.

As Selena Simmons-Duffin writes in a 2022 NPR article, doctors who decide to stay in states that have banned abortion find their medical opinions being overridden by laws that they don’t want to risk breaking. Some legislation prohibits abortion aside from cases involving medical exception, but “deciding what cases qualify … can be a difficult judgement call for doctors.” This may lead them to take a ‘better safe than sorry’ approach when it comes to violating these laws, even if it’s the less safe or healthy option for the patient. However, flat-out denying treatment is not the only harmful consequence of these laws– sometimes doctors delay care because they want to ensure they’re not violating legislation. In his address to the American Medical Association’s legislative body, president Dr. Jack Resneck expressed how he “never imagined colleagues would find themselves tracking down hospital attorneys before performing urgent abortions, when minutes count, [or] asking if a 30% chance of maternal death or impending renal failure meet the criteria for the state’s exemptions, or whether they must wait a while longer until their pregnant patient gets even sicker.'”

In other states, abortion procedures are denied even in obvious emergency situations: for example, a woman who’d been profusely bleeding for hours from a miscarriage was not initially treated at an Ohio ER, NPR reported. Additionally, as Springfield News-Leader described, a woman whose water broke at 18 weeks (leaving her at risk for infection) was denied an abortion procedure by hospital doctors because “current Missouri law supersedes our medical judgement.” This hospital is currently under investigation for going against a federal law requiring doctors to treat and stabilize patients during medical emergencies, but this case nevertheless exemplifies how abortion law presents challenges to healthcare providers that may lead them to withhold services for fear of the legal repercussions of offering them, or opting for riskier procedures. For example, a Texas Policy Evaluation Project survey found that “clinicians sometimes avoided standard abortion procedures, opting instead for ‘hysterotomy, a surgical incision into the uterus, because it might not be construed as an abortion.'” Dr. Matthew Wynia, Director of the Center for Bioethics and Humanities at the University of Colorado, says this procedure is “much more dangerous, much more risky– the woman may never have another pregnancy now because you’re trying to avoid being accused of having conducted an abortion.” Doctors don’t want to break the law by performing an abortion, so they put mothers in danger by delaying, or (worse) denying, care. “If the law is wrong and causing you to be involved in harming patients,” Dr. Wynia wrote in his New England Journal editorial, “you do not have to live [within] that law.”

Before Roe v. Wade was first passed in 1973, “there was ‘almost a ‘don’t ask, don’t tell’ kind of silence’ around” abortion providers, according to UC Davis legal historian Mary Ziegler, who specializes in abortion history. By the 1940s, however, abortion had become increasingly criminalized, which led to the formation of “therapeutic abortion committees” in the 1950s, protecting abortion providers from legal repercussions and allowing abortions in certain circumstances (i.e. emergencies). Then, in the 1960s, the focus shifted from navigating around and avoiding anti-abortion legislation to confronting it: doctors started trying to get caught and arrested, so that their cases would get publicized and draw attention to the “vague or unworkable” legal restrictions. However, this is no longer the case. “In the five months [after] the Supreme Court overturned Roe v. Wade, leading medical associations [told] NPR they [weren’t] aware of any health care workers … charged with providing an abortion in violation of these new state laws,” partly because the new laws are so much more extreme. “Now, many of these state laws,” Simmons-Duffin explains, “were written explicitly to criminalize doctors, with penalties that include felony charges, prison time, fines, and the loss of their medical license and livelihoods. The maximum penalty for doctors who violate Texas’s abortion ban is life in prison.” These are very real threats for doctors, since (unfortunately) in the modern political climate, their cases are likely to be lost. “There is no way that I would risk my personal freedom and jail time for providing medical care,” says Indiana-based OB/GYN Dr. Katie McHugh. “I would love to show my children that I am brave in the world, but our society will not allow me to be a civil-disobedient citizen … I would be imprisoned, I would be fined, I would lose my license and I very well could be assassinated for doing that work.” However, there are two methods of disobeying anti-abortion legislation, according to bioethicist Katie Watson, who also serves as professor of law and humanities at Northwestern University’s medical school. The first is civil disobedience, violating legislation “publicly to make a point.” This is obviously the approach that has been taken historically, but in the face of more restrictive legislation there’s been a shift toward “‘covert disobedience,’ which is privately resisting the law.” As Watson explains, “that is when you believe a law is unjust and you do not believe disobeying it in public will change it, but there is an identified other in danger in front of you that you have the resources to help.” Historical examples of covert disobedience include the Underground Railroad or hiding Jews from the Nazis. In the context of abortion providers, this looks like referral systems that send patients to different places to receive abortion care. This allows abortion providers to ensure “patients can still get care without risking their livelihoods and personal freedom.”

Of course, the illegalization of abortion in certain states has deterred some doctors from practicing in those states in the first place. Even if a doctor does not plan to provide abortion care, the abortion bans (laws meant to protect fetuses) present unique liabilities and limits for regular medical practice. Additionally, some doctors don’t want to associate with a state that does not align with their personal values (being pro-choice). This means that these states are at a disadvantage amidst the current reproductive health practitioner shortage– “some prospective OB/GYN candidates won’t even consider opportunities in states with new or pending abortion bans.” In fact, there have been at least 20 instances (according to Tom Florence, president of AMN Healthcare company Merritt Hawkins) where prospective doctors have specifically refused to practice in states where reproductive rights were legally constricted out of fear that “‘…they could be fined or lose their license for doing their jobs.'” Doctors currently being trained are presented with challenges by the overturning of Roe v. Wade, as well — mainstream physicians in support of abortion rights “worry that limits on training for new doctors will undermine recruitment of young talent,” concerned that restrictions will prevent prospective healthcare professionals from reaching their full potential by limiting the services they can offer.

The overturning of Roe v. Wade presents challenges not just for doctors but entire abortion clinics. As Shalina Chatlani writes in her Tennessee Lookout article “Remaining Abortion Clinics Face More Challenges If Abortion Pill Limited by Texas Judge,” clinics across the country have been shut down due to the overturning of Roe v. Wade. For example, Jackson Women’s Health Organization (“The Pink House”), which for years had been the only abortion clinic serving the greater Mississippi area, was forced to shut down following the Supreme Court ruling. Its transformation into a luxury consignment shop has begun– the iconic pink walls have been painted over (there are no longer protesters outside of them); the medical equipment that was once inside, not serving a purpose anymore, has been removed. Many women in Mississippi, as well as other Southern states, are traveling elsewhere to seek abortions, whether via drugs or an in-clinic procedure. However, a federal judge in Texas is deciding on an anti-abortion lawsuit directing the FDA to withdraw approval of mifepristone, a decades-old drug widely used in medical abortion. Medication abortions account for the majority of all abortions in the US, the Guttmacher Institute reports, so the consequences of a ruling in the anti-abortion groups’ favor would definitely be felt. Restrictions on medication abortions are currently most prominent in our area of the country, the southeastern United States, but “the likely immediate impact [of an anti-abortion biased ruling] would be that manufacturers would not be allowed to ship mifepristone anywhere in the United States, and providers would no longer be able to prescribe it.” This would be yet another law that would limit providers, preventing them from providing certain services. This may, as previously stated, deter doctors from working in anti-abortion states– they may follow women who seeking abortion to states in which offering abortion services is legal. However, the immigration of clients to clinics in these states presents those clinics with the challenges of increased demand. Mara Pliskin, patient navigation manager at Planned Parenthood in Illinois, describes it as being “in the trenches.” These clinics are trying to put systems in place to take in this large influx of patients as quickly as possible, as patients may be in dangerous situations, but often end up having to create waitlists (which will grow if medical abortion is restricted).

Chatlani’s article also discusses a challenge faced by abortion advocacy & reproductive justice organization Yellowhammer Fund: after the overturning of Roe v. Wade, the nonprofit not only “had to effectively stop most of its abortion-related services” but were also limited to only providing information already available in the media. The organization’s focus, says deputy director Kelsea McLain, has shifted to their programs that support new parents.

An American Civil Liberties Union article describes TRAP (Targeted Regulations of Abortion Providers) laws, which “require abortion providers to have admitting privileges at local hospitals or require clinics that provide safe, outpatient care to meet the standards of ambulatory surgical centers.” These requirements are challenging, sometimes impossible, to fulfill. Most hospitals won’t admit abortion providers, and the safety of the abortion procedure prevents doctors from meeting the hospital-admit patient threshold. In May 2017 (pre-TRAP), there were 6 states with only one remaining abortion clinic; this number could soon rise to at least 8, and some states could have no abortion clinics at all.

As Max Zahn of ABC News reported, abortion bans have led to financial losses for clinics. His article, “Abortion Clinics in Embattled States Face Another Challenge: Money” focuses on Katie Quinonez, executive director of Women’s Health Center of West Virginia. When the nonprofit faced prosecution under a West Virginia abortion ban from 1882, Quinonez and her coworker called to cancel 60 procedures scheduled for the following 3 weeks, which was “a crushing blow to the nonprofit health center’s financial stability.” As Quinonez points out, clinics’ financial situations are typically already tight, meaning abortion bans are especially detrimental in this regard. Unfortunately, according to clinic officials and reproductive health organizations, the two options now faced by abortion clinics are expensive: either move to a state where abortion is legal, or remain open but stop providing abortions. The latter deprives clinics of a key revenue source (for example, Quinonez reports that abortions accounted for 40% of her clinic’s revenue, a large portion of their $1.6 million annual budget). The former means losing revenue from established patients while gaining moving expenses. Clinic budgets might not be able to handle this, Quinonez worries, because in addition to complying with these regulations, they are depending on low-income patients who often lack insurance, and they themselves lack federal funding (and, in many cases, Medicaid coverage).

Across the country, abortion providers are sticking their necks out in order to fight for what they believe in. Abortion bans present challenges for clinics and doctors who offer these procedures, but providers are able to counter-challenge in three main ways. Mabel Felix, Laurie Sobel, and Alina Salganicoff outline these challenges in their KFF article “Legal Challenges to State Abortion Bans Since the Dobbs Decision.” The first category of challenges is Broad Constitutional, which can be seen in states including Oklahoma, Georgia, Utah, and Ohio and includes claims stating constitutional protections (i.e. liberty; due process; privacy rights) protect abortion rights. Health Care Amendment Challenges argue that state constitution amendments to include rights to healthcare/health insurance decisions include a woman’s right to choose; this category of challenges is seen in states such as Ohio and Wyoming. The final category of challenges to abortion bans is Religious Freedom: arguments that abortion bans “either unduly infringe on … religious exercise or violate state constitutional protections against the establishment of religion” in Wyoming, Indiana, Florida, Kentucky, Utah, and Missouri.

As it did in most areas of our lives, the COVID-19 pandemic (which preceded the overturning of Roe v. Wade) presented many challenges in regards to abortion. In their study “The Impact of COVID-19 on Abortion Providers,” a research team at University of California San Francisco’s ANSIRH (Advancing New Standards In Reproductive Health) program found that the pandemic caused abortion provider shortages, forced clinic closures, “led to increased expenses and reduced revenues,” delayed ability to provide services, and overall disrupted the ‘flow’ of clinics. As previously stated, these types of problems have been exacerbated by Roe v. Wade being overturned: there are practitioner shortages in states that have banned abortion; abortion clinics have experienced financial strain that, in some cases, forces them to shut down; there’s obviously an inability to provide abortion services without legal consequences, and the field of women’s healthcare has been drastically altered.

Nora Paladino

References

Arons, Jessica. “The Last Clinics Standing.” American Civil Liberties Union, American Civil Liberties Union, 2023, https://www.aclu.org/issues/reproductive-freedom/abortion/last-clinics-standing.

Chatlani, Shalina. “Remaining Abortion Clinics Face More Challenges If Abortion Pill Limited by Texas Judge.” Tennessee Lookout, 2 Mar. 2023, https://tennesseelookout.com/2023/03/02/remaining-abortion-clinics-face-more-challenges-if-abortion-pill-limited-by-texas-judge/.

Chowdhary, Pari, et al. “‘No One Does This For The Money Or Lifestyle’: Abortion Providers’ Perspectives on Factors Affecting Workforce Recruitment and Retention in the Southern United States.” Maternal and Child Health Journal, vol. 26, no. 6, 2022, pp. 1350–1357., https://doi.org/10.1007/s10995-021-03338-6.

Felix, Mabel, et al. “Legal Challenges to State Abortion Bans since the Dobbs Decision.” KFF, 30 Jan. 2023, https://www.kff.org/womens-health-policy/issue-brief/legal-challenges-to-state-abortion-bans-since-the-dobbs-decision/.

Roberts, Sarah, et al. “The Impact of Covid-19 on Abortion Providers.” ANSIRH, University of California San Francisco, 31 Mar. 2023, https://www.ansirh.org/research/ongoing/impact-covid-19-abortion-providers.

Rowland, Christopher. “A Challenge for Antiabortion States: Doctors Reluctant to Work There.” The Washington Post, WP Company, 6 Aug. 2022, https://www.washingtonpost.com/business/2022/08/06/abortion-maternity-health-obgyn/.

Simmons-Duffin, Selena. “Doctors Who Want to Defy Abortion Laws Say It’s Too Risky.” NPR, NPR, 23 Nov. 2022, https://www.npr.org/sections/health-shots/2022/11/23/1137756183/doctors-who-want-to-defy-abortion-laws-say-its-too-risky.

Zahn, Max. “Abortion Clinics in Embattled States Face Another Challenge: Money.” ABC11 Raleigh-Durham, ABC News, 15 Aug. 2022, https://abc11.com/abortion-clinics-in-embattled-states-face-another-challenge-money/12127770/.