The Aftermath of the Overturning of Roe v Wade

Olivia Fleischer
Jul 25, 2022
10 min read

Updated: Jul 25, 2022

The purpose of this post is to clear up some of the misinformation and outright denial in the media of the immediate effects that the overturning of Roe v Wade is having in certain states. Before I explain some of those effects, I want to acknowledge that I am NOT an OB/GYN, and I am by no means claiming to have the same level of knowledge on these topics as they do. However, I have received a similar base training as well as an understanding of the grueling and life-long process that is earning and keeping a medical license, and I too have taken and understand the Hippocratic Oath to do no harm.

In making the decision to overturn Roe v Wade, the Supreme Court directly impaired the ability of physicians - OB/GYNs in particular - to utilize expertise that they have spent many years developing. In a recent study in Wisconsin by the American Journal of Public Health, 99% of physicians were concerned about legislation interfering with the doctor-patient relationship, and 91% said that women’s healthcare would get worse if Roe v Wade was overturned and the state’s abortion law took effect. In the face of a public health crisis, it is troubling to see members of the public both criticizing the credibility of physicians and downplaying the complexity and terror they are facing in their efforts to provide quality healthcare while risking criminal prosecution. I am choosing to recognize my limited knowledge on these topics and trust the experts when they say it is negatively affecting public healthcare - especially women's health. If you are not a board certified OB/GYN, then I would encourage you to do the same.

The definition of abortion:

Roe v Wade gave all women the constitutional right to abortion if they wanted it. Now, in a post-Roe world, it is up to states to define abortion and decide if, when, and how a woman can have one. One reason that this is hugely problematic is that there is no single definition of abortion. There are many, and each is just as vague as the next. Here are just a few of them from medical dictionaries/textbooks:

Expulsion from the uterus an embryo or fetus prior to the stage of viability.
The spontaneous or induced termination of pregnancy before fetal viability.
The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.

In other words, abortion is ANY end of any pregnancy. Definitions this vague are up for interpretation, as are the state laws surrounding them. Take incomplete miscarriages for example. A miscarriage is the spontaneous loss of a pregnancy at less than 20 weeks whereby all products of conception have not been expelled from the uterus. In other words, dead embryonic or fetal tissue remains in the uterus and must be removed through medication. Those who are anti-choice may argue that this is not abortion because the distinction is clear: the fetus died accidentally and so it is okay to remove the remaining tissue. When considering the aforementioned medical definitions, however, this treatment is synonymous with abortion.

So how can healthcare providers be expected to know what is and is not illegal when it has never been up for debate before? Will a woman who experiences a spontaneous miscarriage and the doctor treating her now be held responsible for criminal abortion for removing the remaining tissue due to the ambiguity of the language? How will lawyers know that the woman was pregnant in the first place or know that the termination was spontaneous vs induced? There is no way of knowing this information unless a woman willingly confesses to it, unless her digital devices are searched for hints of what the state deems unlawful termination, or unless her private medical records are obtained without her consent (which is, by the way, still illegal). Will HIPAA laws be changed? These are all extremely valid concerns due to the ambiguity of many state definitions and laws. Why do many members of the public support an individual's right to privacy until it is in regards to a woman and her reproductive health? These invasive actions and legal questions will undoubtedly cause ripple effects impacting a person's right to privacy in other aspects of life.

And then there is the issue of removing live embryonic tissue. An ectopic pregnancy, although a danger to the carrier and technically nonviable, still involves a live embryo. The removal of this embryonic tissue is therefore also considered medical abortion of a pregnancy. Many anti-choice laws in extreme states do not currently have specific exceptions for terminating said pregnancies, ultimately putting the carrier's life at risk due to the possibility of delayed medical treatment. And what about fetuses found to have severe physical defects or anomalies incompatible with life? Anencephaly, for example, is a defect in which a baby is born without parts of the brain and skull, and has a first-year mortality rate of 100%. Are states with extreme abortion bans and limited exceptions really going to force a pregnant person to carry this fetus to term against their will just to watch it die? In states such as Ohio, the answer is yes.

Exceptions to save the woman's life:

Even when exceptions are mentioned, they are riddled with ambiguous language. Some strict state regulations such as those in Texas allow for abortion only when "it is a medical emergency and necessary to prevent the pregnant person's death or substantial and irreversible impairment of a major bodily function." This exception is hugely up for interpretation because "threat of life" is not well-defined. Does a person carrying an ectopic pregnancy have to be hemorrhaging at a certain rate with unstable vitals before an abortion can be induced? And what about septic (infected) patients? How septic do they have to be for it to be considered life-threatening? Do they need positive bacterial cultures and a fever, or do physicians have to wait for them to be in the ICU and intubated before finally inducing an abortion? What if a woman is diagnosed with cancer mid-pregnancy and physicians cannot predict whether or not said cancer will kill her if the treatment of it is delayed for the sake of the fetus?

Those who are anti-choice may argue that doctors should know when there is a threat to life and know when to put the pregnant patient's health above the fetus's. And yes, theoretically they should - it is a doctor's job to protect their patient. However, even when medical definitions and regulations are unambiguous, these are not decisions that are taken lightly. Physicians have never had to work under such ambiguous and high-stakes conditions before now. The reality is that in states with abortion bans the doctor-patient relationship will now be a lawyer-doctor-patient relationship. It is important to emphasize that the physician and the patient will now suffer from this new dynamic. This is because, instead of relying solely on their intense medical training and instincts to administer the best possible care to their patients, doctors will now have to consult with hospital lawyers first. And it is a lawyer's job to protect the hospital, not the pregnant patient. Hospital lawyers will therefore be weighing in on said patient's health care, meaning they will be putting pressure on the physician to wait to administer life-saving care until the law has been interpreted for that specific medical situation, or until the signs of threat to life are more clear for documentation to save the hospital's skin. Care will no longer be patient-centered. It is completely valid that physicians - especially OB/GYNs - would be confused and fearful. They are now facing the impossible decision of either: 1. Risking criminal charges and loss of licensure for upholding their Hippocratic Oath to do no harm by saving their patient's lives, or 2. Choosing to let their patients suffer and potentially die to protect their own self-interest. Additionally, this heavier need for hospital lawyers is going to increase the cost of healthcare. Patients alone will not bear that cost, it will also be paid for by tax dollars.

The dispensing of medications:

Pharmacists are facing concerns about doing their jobs now too, and rightfully so. Many already are and will continue to hesitate (or even flat out refuse) to fill prescriptions for the abortion pills mifepristone and misoprostol for fear of administering an illegal abortion, even if the drugs are being prescribed to treat an incomplete miscarriage (which is, again, medically synonymous with abortion). Additionally, prescriptions for the drug methotrexate that may be meant to treat rheumatoid arthritis are being questioned by pharmacists when given to women of reproductive age because said medication can also treat ectopic pregnancies. In other words, this overturning is affecting the health care of women who are not even seeking an abortion. These are, again, completely valid concerns due to the ambiguity of abortion definitions and laws.

In vitro fertilization (IVF):

IVF may come under attack soon too. IVF is an assisted reproductive technology that uses a combination of medicines and surgical procedures to help a sperm fertilize an egg to create an embryo outside of the human body, that then gets transferred into a woman's uterus in the hopes of creating a pregnancy. This technology is often used by couples struggling to conceive naturally, and has only recently become available under Roe v Wade. Often times to increase a woman's chances of pregnancy, several embryos are made at once and are either placed in storage for future use, or multiple are transferred to the uterus at once to increase odds of implantation. In extreme states with personhood laws that define life at fertilization, these IVF questions now have to be asked:

What will happen to the extra embryos that do not get used? Will it be considered murder on the patient's or doctor's part to dispose of them? Or will only one embryo be allowed to be created at a time now so that none are ever put in storage, ultimately affecting a woman's chances of conceiving due to costs and biological time constraints?
What if multiple embryos get implanted in the uterus at once? Under Roe v Wade, if four or five got implanted at once, it was perfectly legal to remove a few of them in a process called reduction to protect a woman from the dangers of carrying too many pregnancies at once. Will this be illegal abortion now too despite it being a threat to the mother's health? Or will multiple implantations at once no longer be allowed, again possibly affecting a woman's chances of pregnancy?

Those who are anti-choice argue that IVF is for women wanting to be pregnant, so this technology should be exempt from post-Roe restrictions. But isn't the disposal of spare embryos, by the "pro-life" definition, still murder? When the government limits reproductive rights, they start to limit ALL reproductive rights, even those of women deemed "wholesome" and "worthy" of said rights by anti-choice advocates.

Tennessee Law:

The abortion bans in Tennessee serve as clear examples for how the Supreme Court decision can and will negatively affect and even kill women. This information is straight from criminal defense attorney Chloe Akers, so if you do not fully understand it or have any doubts about it, please watch her video explaining it. A codified Tennessee trigger law states that ANY and ALL abortion is CRIMINAL for a physician to perform, and there are NO EXCEPTIONS. In other words, a physician who performs an abortion will be criminalized even if the abortion was for a pregnancy resulting from rape, incest, human trafficking, etc., and even if the pregnant person's life was at risk. There are no exceptions to abortion being a criminal act. There are only two statutory affirmative defenses for this criminal charge, but these are not the same as exceptions. Exceptions allow for abortions to be performed in those situations listed, whereas with statutory affirmative defenses, the abortions performed are still criminal and the physicians who perform them can still be arrested and charged for their crimes. Only after being arrested and charged can physicians then try to overturn their charges by using the following affirmative defenses: 1. The abortion was performed in an attempt to save the pregnant person's life, or 2. The abortion was performed to end a pregnancy that would have greatly harmed the patient. Again, physicians are not automatically exempt from being criminalized in these two situations, they must defend themselves to overturn their criminalization.

But wait, it gets better. Although there are affirmative defenses for potential harm or potential death to the patient due to a dangerous pregnancy, there is NO DEFENSE for a physician who performs an abortion on a patient threatening to TAKE THEIR OWN LIFE if they do not receive the abortion. In other words, if the pregnant person has serious mental health issues and is desperate enough to threaten to kill herself if she does not get the desired abortion, the physician who performs the abortion will NOT be able to defend themselves. There is no overturning this criminal abortion - the physician will be arrested, charged, and found guilty for saving their patient's life. This is written very clearly in the trigger law. The law makers recognized how traumatic some pregnancies could be and recognized how desperate some women would get, and still insisted on forcing them to give birth despite threats of suicide. This is NOT "pro-life." This is pro-control. And will deeply affect women and physicians in Tennessee.

Conclusion:

Make no mistake, women are already suffering and will continue to suffer from this lack of autonomy over their own beliefs and bodies. And it will not end here. Subsequent threats have already been made to a woman's right to contraception and the right to interracial and same-sex marriage. If the overturning of Roe was only about saving fetal life, then why is our government now threatening further overreach and the continued implementation of extremist religious agendas? How do contraception and marriage equality have anything to do with fetal life?

I am urging the "pro-life" side of this debate to consider all life, not just that of a fetus. The evidence of harm against women is clear, and until we acknowledge and accept that there is no single answer to when life begins, women who disagree with the religiously-rooted belief that life begins at conception will continue to suffer. There are better ways to reduce abortions than to force one belief on all. We are headed down a very slippery slope if we continue to lack respect for the beliefs and subsequent rights of others.