Democrats and Republicans on the U.S. Senate panel that oversees health care sharply disagreed Wednesday over how Congress should respond to confusion among doctors about compliance with state abortion bans.
State abortion restrictions, some of which were written long ago and don’t account for complicated medical situations, don’t make it clear when a health care provider can end a pregnancy to save the life of a patient, witnesses told the Senate Health, Education, Labor and Pensions Committee.
The sparring among senators came in reaction to the U.S. Supreme Court ruling on June 24 that ended the constitutional right to an abortion and allowed each state to set its own laws. The debate reflected the chaos and confusion that’s ensued as states pursue a patchwork of laws.
Committee Chair Patty Murray, a Washington state Democrat, argued that Republican policies to ban or severely limit abortion in deeply red states could lead to an increase in the number of women who die as a result of their pregnancies, known as the maternal mortality rate.
“Anyone who has given birth knows this isn’t just about whether you are ready to raise a child, pregnancy is a life changing medical procedure — it takes a physical toll, it takes a medical toll and for too many women in this country it takes their life,” Murray said.
“No one should be forced to go through this against their will. But Republicans are going to force women to stay pregnant, not only when they don’t want to be but even when it could kill them,” she continued.
Kansas Republican Sen. Roger Marshall said that no state in the country has a law in effect now that prevents doctors from saving a pregnant patient’s life — though testimony later in the hearing showed that when exactly a doctor could perform an abortion to save the person’s life is murky.
“Every state abortion law triggered by overturning Roe includes an exception to save the life of the mother,” Marshall said, referring to the 1973 Roe v. Wade Supreme Court ruling that established a nationwide, constitutional right to abortion.
Marshall, who practiced as an OB-GYN before joining Congress and is still licensed, argued that treating miscarriages and ectopic pregnancies is “not the same as performing abortion.”
“In fact, no abortion law in any state in America prevents treatment,” he said.
But Dr. Kristyn Brandi, the board chair at Physicians for Reproductive Health in New Jersey, later testified that the treatment for a miscarriage uses the exact same medicines and exact same procedure as abortion management.
This is one of the reasons doctors and other health care providers in states where lawmakers have implemented bans or strict restrictions have raised concerns about exactly when they cannot terminate a pregnancy.
Health care providers are also struggling to determine exactly how sick a patient has to be before they could terminate a pregnancy to save the person’s life, she said.
Using the example of a patient whose water breaks at 18 or 19 weeks into a pregnancy, Brandi said that complication would make it very unlikely the patient could carry the pregnancy to term or that there would be a good fetal outcome.
Brandi questioned if health care providers could legally discuss options and intervene when the diagnosis is made, or if they legally must wait until the patient gets an infection, or ends up in the Intensive Care Unit in shock.
“These laws don’t really specify, and it’s very confusing for people on the ground,” she said, noting that having to wait until patients are very ill before being able to proceed with health care is not evidence-based care.
Law on emergency care
The Biden administration on Monday reminded health care providers in states that now have strict abortion limits or bans that the Emergency Medical Treatment and Active Labor Act protects them if they need to terminate a pregnancy to stabilize a patient.
The law, sometimes referred to as EMTALA, historically has been used to prevent hospitals from turning away patients if they are unable to pay for care, Brandi said. The law, she said, requires emergency department physicians to assess a patient and then stabilize them if it’s an emergency or transfer them if the hospital can’t provide the care they need.
The problem with relying on the law to ensure abortion access in emergency situations is that religious hospitals don’t necessarily fall under the rule and that doctors will likely end up questioning when exactly a patient is sick enough to fall under the protections, she said.
Abortion and cancer diagnosis
Virginia Democratic Sen. Tim Kaine also brought up the possibility a pregnant person in one of the states with severe abortion restrictions would be diagnosed with cancer.
Reading from a piece Jamie Abrams, law professor at American University Washington College of Law, wrote for NBC News, Kaine quoted her questioning how a breast cancer diagnosis would fit into the Kentucky law that only allows abortions when the patient faces as “substantial risk of death” or “serious, permanent impairment of a life-sustaining organ.”
“Is Stage 1 breast cancer enough? Stage 2? What relevance are my two children, for whom I desperately seek the best prognosis and longevity for myself? Does the law require me to endure the state-compelled progression of cancer? The answers to these questions would be entirely unclear,” Abrams wrote.
Kaine said he was struck by the piece and asked Brandi if that would be an unusual concern.
“I think many people, before all of this happened, didn’t really understand the full impact of how this is going to radically change health care and put our health care system potentially into chaos,” Brandi answered.
Health care is often specific to each person and doctors often talk with those patients about the best path forward for them, she said.
Alaska GOP Sen. Lisa Murkowski, one of the two abortion rights Republicans in the U.S. Senate, had a similar sentiment about abortion access.
She said that because a decision on abortion is so personal and complex, and has such an impact on the person’s life, that the choice “must ultimately be in the hands of the individual and not in the government.”
Murkowski said she’s heard many stories from Alaskans, including from women who are “distraught” by the Supreme Court’s decision to end the nationwide right to an abortion.
Murkowski, noting the often sharp divide between Republicans and Democrats on abortion itself, said she’d hope senators could agree that “it’s in the best interest of everyone to create a system where fewer women face this choice in the first place, because everybody has adequate access to and knowledge of contraceptives.”
Murkowski said she’s “working with a small bipartisan group to ensure that the rights that women have relied on for the last 50 years” regarding abortion access and making their own decisions about birth control are “protected.”
“I hope that at a minimum, our legislation will demonstrate that there is a majority in the United States Senate that support these basic rights,” she said.
Murkowski also sought to dissuade Democratic senators from adding an exception for voting on abortion rights to the chamber’s legislative filibuster, which requires at least 60 senators to take a procedural vote before the chamber can move on to passing a bill with a simple majority.
“The balance of Congress moves back and forth,” Murkowski said. “Without the filibuster do we really think, do we really believe, that a different majority would not seek a nationwide ban on abortion and find a way to succeed in enacting it?”
Brandi Swindell, founder and CEO of Stanton Healthcare in Idaho, told the committee that pregnancy centers similar to hers throughout the country, which don’t provide abortions, outnumber abortion clinics by a 4 to 1 ratio.
Swindell criticized Democrats and abortion rights advocates who have questioned the ethics of some pregnancy centers for the types of information they provide the people who go to their facilities.
Swindell also called on Congress to “support women with unexpected pregnancies” by passing legislation that would provide paid maternity leave and child care, saying that would be a step in the “right direction.”