Louisiana’s abortion law leaves some doctors afraid to provide miscarriage care : Shots
Claire Bangser for NPR
BATON ROUGE, La. – When Kaitlyn Joshua found out she was pregnant in mid-August, she and her husband, Landon Joshua, were excited to have a second baby on the way. They have a 4-year-old daughter, and thought that was just the right age to help out with a younger sibling.
At about six weeks pregnant, Joshua, 30, called a physicians’ group in Baton Rouge. She wanted to make her first prenatal appointment there for around the eight-week mark, as she had in her first pregnancy. But Joshua says the woman on the line told her she was going to have to wait over a month.
“They specifically said, ‘We now no longer see women until they’re at least 12 weeks,'” Joshua recalls. “And I said, ‘Oh Lord. Is this because of what I think? And they said, ‘Yes.'”
She remembers the woman on the phone saying that since the U.S. Supreme Court decision overturning Roe v. Wade, and with what the woman called a gray area in Louisiana’s law, the group was delaying the first prenatal appointment with patients.
Joshua remembers her saying that many women miscarry in the first 12 weeks of pregnancy, and they didn’t want to be liable for an investigation.
Louisiana’s near-total abortion ban, which took effect on Aug. 1, has raised fears among physicians that they could potentially be investigated for treating a miscarriage, since the same treatments are also used for abortion.
During those early weeks of pregnancy, Joshua experienced symptoms she hadn’t dealt with in her first pregnancy: mild cramping and spotting. Without access to a doctor, though, Joshua felt like she had nowhere to go for answers.
“How in the world can we have a viable health care system for women, especially women of color, when they won’t even see you for 12 weeks?” she says.
Joshua, who works as a community organizer, knew pregnancy can be dangerous, especially for Black women like herself. She also knew about Louisiana’s dismal maternal health statistics: The state has one of the highest maternal death rates in the country, and Black women are at higher risk than white women, according to reports from the state’s health department.
So Joshua booked an appointment weeks away with one of the few OB-GYNs she could find who was a woman of color. Then, when she was between 10 and 11 weeks pregnant, she started bleeding heavily, passing clots and tissue. She says the pain was worse than when she’d given birth.
Her husband was at work, so Joshua drove herself to the emergency room at Woman’s Hospital in Baton Rouge. There, staff took her vitals, drew blood, performed a physical exam, and gave her an ultrasound. They told her the ultrasound showed that her fetus had stopped growing, she recalls. It was measuring seven or eight weeks gestation, not 10 or 11 weeks. Her medical records show her pregnancy hormone levels to be abnormally low.
She recalls being told her fetus had only a faint heartbeat. Joshua understood that she was miscarrying. But hospital staff wouldn’t definitively confirm it and didn’t explain what treatment options she’d have if she was having a miscarriage.
Joshua remembers one nurse telling her: “‘It appears that you could be having one. But we don’t want to say that’s what it is. So let’s just keep watching it. You can continue to come back. Of course, we’re praying for you.'”
Joshua is Christian. She spends Sunday mornings at church. But she says the comment felt like an insult.
“Folks need answers, not prayers. And that’s exactly what I was looking for in that moment,” she says.
Claire Bangser for NPR
The next day, her bleeding and pain were worse. Landon, her husband, was afraid for her life.
By the evening, Joshua was pacing her bathroom floor, bleeding and cramping, when she felt more blood and tissue come out of her body.
“It literally felt like I had almost birthed a child,” she says. “And so I was like, ‘No, I have to go somewhere, like now.’ “
She didn’t want to return to the first ER, so she called her mother and husband and told them to meet her at Baton Rouge General in nearby Prairieville. There, a security guard put her in a wheelchair. Her jeans were soaked through with blood. Staff gave her another ultrasound, and the technician told her she’d lost a lot of blood.
A doctor came in to talk about the ultrasound results. She told Joshua it looked like a cyst, not a pregnancy, and asked if she was positive she’d been pregnant — a question that made Joshua angry.
Joshua remembers the doctor then said that if she was indeed miscarrying, she should go back home and wait, then follow up with her OB-GYN in two to three days.
Joshua asked the doctor for treatment to alleviate her pain and speed up the process. There are two standard options for managing a confirmed miscarriage, other than letting it pass on its own: a procedure called dilation and curettage, to remove pregnancy tissue; or medication, which can help clear the uterus more quickly. Both of the latter treatments are also used for abortions.
The doctor told her, “‘we’re not going to do that,'” Joshua recalls. “I just remember her saying, ‘We’re not doing that now.'”
The doctor also said she wouldn’t refer Joshua somewhere else for miscarriage treatment, Joshua recalls, nor give her discharge papers stating she was having a miscarriage, known in medical terminology as a spontaneous abortion.
“She stated that they’re not going to put anywhere ‘spontaneous abortion’ because that would then flag an investigation on them,” Joshua says.
Landon Joshua, Kaitlyn’s husband, says he had the impression that the doctor was afraid to confirm his wife’s miscarriage.
“She would not look me in the eye to tell me what was happening,” Kaitlyn says.
Frustrated and scared, the Joshuas went home.
Both Women’s Hospital and Baton Rouge General said in statements to NPR that their pregnancy care has not changed since Louisiana’s abortion ban passed. Baton Rouge General said its care of Kaitlyn Joshua was appropriate. NPR contacted the provider who Joshua originally called for a prenatal appointment, and it denied that it had changed the timing of first appointments.
Although she couldn’t comment directly on Joshua’s situation, Dr. Jenny Villavicencio, a D.C.-based OB-GYN, says that delaying a first prenatal visit until the 12-week mark, while not outside the recommended window for care, is later than ideal.
Kaitlyn Joshua says she was told to wait weeks for her first prenatal appointment because of Louisiana’s abortion ban. When she started to have heavy bleeding and labor-like pains, she sought care at two separate ERs, but both times, she was sent home without a clear understanding of whether she was miscarrying or her treatment options. The experience led her and her husband to decide not to have more children for now.
The state law
Louisiana has a law banning nearly all abortions, including in cases of rape and incest, that took effect in the wake of the U.S. Supreme Court decision overturning Roe v. Wade in late June. After a tumultuous but brief legal battle at the state level, the law has been in effect since Aug. 1, and the three clinics in Louisiana that performed abortions have closed.
For anyone who provides an abortion, the law carries stiff penalties of 10 to 15 years in jail, $100,000 to $200,000 in fines and the loss of a physician’s medical license if convicted of performing an abortion.
Louisiana’s trigger law has a narrow exception for certain pregnancies where the fetus is deemed too sick to survive birth, and one that allows for abortion procedures to treat miscarriages.
For the miscarriage exception, in order not to be liable for providing an abortion, physicians must provide “a positive diagnosis, certified in writing” in a woman’s medical records, as well as an ultrasound, to prove that the pregnancy “has ended or is in the unavoidable and untreatable process of ending.”
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What’s at stake
Since Louisiana’s ban took effect, some doctors have warned that the law’s language is vague, and that fear and confusion over the law would lead to delays in pregnancy care.
OB-GYN Villavicencio, who leads equity efforts at the American College of Obstetricians and Gynecologists, says doctors have been delaying or declining care in many states with abortion bans.
“Not because doctors are inappropriate or bad people, but because they’re confused about what they can and cannot do,” she says. “And they’re also scared about what the consequences may be if they break these extremely confusing laws.”
Both the ERs Joshua visited deny that they have changed care because of Louisiana’s ban.
In a statement, Dr. R. Cliff Moore, the chief medical officer and a maternal fetal medicine specialist at Woman’s Hospital – the first hospital Joshua visited – said that bleeding during the first trimester is common and doesn’t necessarily mean a patient is miscarrying. He added that diagnosing a miscarriage “requires complex medical analysis” that can take days or weeks. “Our hearts go out” to those who’ve experienced miscarriages, he added.
Baton Rouge General, the second ER, says it has not changed the way it manages miscarriage or the options provided to patients. In a statement, Dr. Kathleen Varnes, an ER doctor, said the hospital “sympathizes with the pain and anxiety” Joshua experienced but that it believes her care was “appropriate.” Every patient is different, she said, adding “there are times when waiting and observing is the right approach, and other times when medication or a procedure may be necessary.”
According to Joshua’s discharge papers from Baton Rouge General, she was suffering from vaginal bleeding, which can, but doesn’t always, lead to miscarriage. But in her medical charts, which Joshua later obtained from the hospital, staff wrote “it appears that she is having a miscarriage,” and diagnosed her as having a “complete or unspecified spontaneous abortion without complication.” Her medical records also note that Joshua’s pregnancy hormone levels, called HCG, had declined from her previous ER visit, when they should have been increasing if her pregnancy was proceeding normally.
Claire Bangser for NPR
After Joshua signed forms allowing the hospital to comment on her care, Baton Rouge General said that because of Joshua’s symptoms, “her discharge papers and treatment plan provided instructions on how to manage bleeding and when to follow up with a physician.”
Other doctors and lawyers in the state are concerned that the abortion ban is affecting some health care decision-making. They point to the fact that even after a state court briefly blocked Louisiana’s ban this summer, Louisiana Attorney General Jeff Landry threatened the medical licenses of physicians, claiming they could still be prosecuted.
In September, at a Louisiana Department of Health meeting, Dr. Joey Biggio, the chair of maternal and fetal medicine with Ochsner Health, Louisiana’s largest health system, said some OB-GYN doctors were afraid to provide routine care.
“There has now been such a level of concern created from the Attorney General’s office about the threat to them both criminally and civilly and professionally, that many people are not going to provide the care that is needed for patients, whether it’s ectopic pregnancies, miscarriages, ruptured membranes, you know, hemorrhage,” Biggio said. “And we need to figure out a way to be able to provide some clear, unequivocal guidance to providers, or we’re going to see some unintended consequences of all of this.”
The exception for miscarriage in Louisiana’s law creates a high bar of proof for physicians, says Elizabeth Sepper, a law professor at the University of Texas at Austin School of Law who specializes in health law. Louisiana’s anti-abortion political climate could add to physician’s fear and decision-making, she added.
“It creates a real climate of fear where people want to avoid even the perception that they are involved in any abortion care or in miscarriage management,” she says. “I think we’re seeing physicians and health care institutions draw lines that the law doesn’t require, so they are staying well back from any possibility of legal liability.”
Miscarriages can be dangerous – they can cause hemorrhaging and infections that lead to sepsis – and it makes sense that patients would seek answers and treatment options from health care providers, says Monica McLemore, a registered nurse and the interim director for the Center for Anti-Racism in Nursing at the University of Washington.
Miscarriage treatment is also time-sensitive, McLemore added. She says that, ideally, a patient like Joshua would have had OB-GYN care even before she got pregnant so that she had more consistent care, which could have helped give her more autonomy over how to treat her miscarriage.
“As a health care provider, I feel very strongly that we need to apologize for the harms that we’ve committed. It’s really sad that the care that she sought for herself was not provided to her,” McLemore says.
The policy debate
The author of Louisiana’s abortion ban, Sen. Katrina Jackson, is a Democrat who’s opposed to abortion. She maintains that the law is clear about miscarriages, saying in an emailed statement that “it does not prohibit medical treatment regarding miscarriages.”
Sarah Zagorski, the communications director for Louisiana Right to Life, which helped draft the ban, says no part of Louisiana’s law requires a physician to delay prenatal care until 12 weeks of pregnancy. And she says the law specifically differentiates miscarriage care from abortion.
“It looks like the fault is not with the law, but with a misinterpretation of the law,” Zagorski says.
Ellie Schilling, a lawyer with Lift Louisiana, a reproductive justice organization that challenged Louisiana’s law in state court, says that while the law allows for miscarriages to be treated, it is written in legal language that doesn’t translate easily into medicine, or necessarily line up with an individual patient’s set of circumstances. And this puts doctors in a very difficult situation.
“They’re trying to interpret specific language and pair it up to specific patients to do some sort of calculation about, you know, have we reached this threshold yet? Or have we not?” she says.
Doctors also have to consider whether someone else might later disagree with their decision, she adds. “How is somebody else going to interpret that later? How is law enforcement or a prosecutor potentially going to interpret that later?”
She argues that the law needs to be clarified. “It puts providers and patients in a really dangerous situation,” she says. “And to abdicate all responsibility for making the laws, before drafting the laws in a way that will work for physicians on the ground, is just irresponsible.”
The patient’s perspective
In the week after Joshua’s last ER visit, the heavy bleeding and piercing pains continued. While mourning the loss of what would have been her new baby, she remained worried for her own health. She feared getting worse and wondered how bad she would need to get in order to get treatment.
Her overall feeling from both ER visits was that she hadn’t been taken seriously.
“Just complete and total abandonment and just completely being written off by physicians that we saw,” she says.
Joshua blames Louisiana’s anti-abortion law for the care she received. “For me to have to navigate so many different channels to get health care should not be happening,” she says. “This has to change. There needs to be clarity within the abortion ban” so that physicians are not confused or afraid to provide care and support.
Joshua also wondered how much being a Black woman had impacted her care.
“I was just wondering if white women get turned away like this,” she says.
Monica McLemore, the nurse who researches racism and maternal health at the University of Washington, says research shows that Black patients are less likely to be listened to and believed.
“So you can’t tell me that that’s not always in the mix, because it is,” McLemore says.
And that can fuel distrust of the health system. People who don’t like how they were treated during pregnancy can be less willing to seek care in the future, she added.
It took weeks, but Joshua was able to pass the pregnancy at home. If she had been given a choice, she would have chosen care that made the experience faster, less painful, less scary, and less risky, especially as a Black woman.
Claire Bangser for NPR
“This experience has made me see how Black women die. Like this is how Black women are dying,” she says.
It also has made Kaitlyn and Landon Joshua rethink their plans for more children.
“I love my kid. And so, she constantly makes me want another her. But in this moment, it’s just too dangerous to get pregnant in the state of Louisiana,” Kaitlyn says. “I don’t think it’s worth risking your life for a baby right now.”
She wonders how many other women in Louisiana are now feeling the same.
This story was produced in partnership with WWNO and KHN. It was edited by Carrie Feibel, Jane Greenhalgh, Diane Webber and Carmel Wroth. Meredith Rizzo and Max Posner handled art direction and design. Photographs by Claire Bangser.