LANSING — Following the ultra-conservative majority on the Supreme Court overturning Roe v. Wade, doctors and health care providers in Michigan are speaking out against the ruling, sharing their fears that basic reproductive care could soon be criminalized.
Read more on how Republicans’ relentless attacks on abortion access and reproductive right could prevent Michiganders from accessing care:
MLive: Doctors worry Michigan’s abortion ban, if enforced, could criminalize routine reproductive care
Some doctors are concerned too, following the high court’s decision to eliminate abortion rights in the United States, where they’ve been protected for nearly 50 years.
“I think miscarriage and ectopic pregnancy will be very much affected. We’ve already seen it affected,” said Dr. Lisa Harris, obstetrician and gynecologist with Michigan Medicine and a University of Michigan Medical School professor whose published paper on navigating the loss of abortion services was cited by the three dissenting justices.
Within days of the opinion in Dobbs v. Jackson Women’s Health Organization, a colleague was consulted because a patient in a neighboring state, where abortion is now illegal, could not get her ectopic pregnancy treated, Harris said.
In Michigan, a 1931 law, unenforced since 1973, prohibits the willful administration to any pregnant woman of “any medicine, drug, substance or thing whatever” to “procure a miscarriage.” Anyone who does so, except to save a mother’s life, is guilty of a felony.
A court injunction, however, is blocking the statute while a Planned Parenthood lawsuit filed against the attorney general is pending.
For now, abortions are allowed in Michigan – although at least two county prosecutors, Jerard Jarzynka in Jackson County and Christopher Becker of Kent County, have said they will enforce the law if presented with cases.
“People want to go to their health care provider and be assured they can receive the spectrum of evidence-based health care,” said Dr. Lauren Owens, an obstetrician, gynecologist and specialist in complex family planning in the Northville, Ann Arbor and Kalamazoo areas. “That’s really concerning about the prospect of a ban in Michigan.”
There are gray areas where pregnancy care and abortion care can overlap. Those situations, even with the law’s single exception, could lead to delays and worse outcomes, she said.
“If we can’t even refer people for abortion care, it just makes us violate our oath to take good care of our patients. It does harm,” said Owens, also a fellow of the American College of Obstetricians and Gynecologists, which condemned the high court decision, saying it will leave many unable to access needed medical care and “allow state governments to prevent women from living with autonomy over their bodies and their decisions.”
Harris said clinicians may be afraid to provide what is now routine. The best evidence-based medication treatment for spontaneous abortion – mifepristone and misoprostol, the same medications used in abortion – could bring accusations of criminal activity, she wrote in her paper, published in June in the New England Journal of Medicine. This is used when a pregnancy is no longer advancing, but has not cleared from a woman’s body, she said this week.
Health care providers may fear intervening early in a miscarriage process, when there is a small or moderate amount of bleeding or a mild infection because they may not perceive the threat of death to be adequately high. Patients will get sicker and if pushed too far, “people can suffer irreparable organ failure or die.”
They may not wish to treat an ectopic pregnancy if there is evidence of fetal cardiac activity, she said.
“Doctors’ judgement calls now have criminal penalties associated with them. And if someone thinks that a woman’s life was not quite in jeopardy enough, when someone ended that pregnancy, they could face criminal charges,” Harris said.
She worries too that people might not seek care while experiencing a self-managed or spontaneous abortion if they see people being reported, arrested or detained. This could potentially jeopardize their health.
While Michigan’s law criminalizes providing an abortion, it does not expressly prohibit prosecuting a woman and Attorney General Dana Nessel has said she believes those seeking abortions could in be charged if they are taking abortion pills or terminating their pregnancies on their own.
For doctors, it will sometimes be obvious a woman’s life is at risk. “But in other cases, whether her life is at risk or how long it might take before it would be clear that her life would be at risk is going to be unclear, ambiguous, uncertain,” said Leonard Fleck, professor at the Michigan State University Center for Bioethics and Social Justice.
Physicians should not be placed in positions where they weigh their own legal self interests against the best interests of the patient, he said.
In criminal law, there is a lot of prosecutorial discretion, Carroll said. “It’s easy to find examples of discretion being used wisely. And it’s easy to find examples of discretion not being used wisely.
In this area, it is possible to imagine scenarios resulting in unwise prosecutions. They could very well end in acquittals, she said. “But a lot of harm is done along the way.”