Abortion Rights Group Sues on Behalf of Women Denied Care in Emergencies

The Washington Post / Frances Stead Sellers

12:55 JST, September 13, 2023

The Center for Reproductive Rights on Tuesday filed legal actions in Tennessee, Idaho and Oklahoma on behalf of women who say they were denied abortion care in medical emergencies.

The actions represent an escalation of the strategy the center used earlier this year in a Texas lawsuit arguing that exceptions to protect the life or health of the mother are unclear, jeopardizing the health of pregnant women.

“What’s happening in Texas is the tip of the iceberg,” said Marc Hearron, the center’s senior counsel who is spearheading the three legal actions. The goal, Hearron said, is twofold – to demonstrate that pregnant people are being denied timely medical care wherever abortion is banned, and to give clarity to doctors who he described as “terrified” of providing the procedure.

Antiabortion groups accuse their opponents of exaggerating the risks to pregnant individuals, dismissing legal actions at the state level as “scare tactics” because abortion rights groups are losing the federal battle. What’s more, they said, broadly written exceptions could allow any abortion clinic to find a health exception to justify the procedure.

In early August, in a temporary victory for abortion rights advocates, a Texas judge ruled that in cases of dangerous or complicated pregnancies, doctors must be allowed to use their “good faith judgment” to provide abortion care. The state immediately appealed the ruling, which is now on hold. Oral arguments are scheduled for late November.

As in Texas, the new filings – lawsuits against the states of Idaho and Tennessee and a federal complaint lodged with the Department of Health and Human Services against a hospital in Oklahoma – do not seek to overturn the abortion bans entirely. Instead, they use personal testimony to expose the physical and mental trauma plaintiffs say they suffered because doctors failed to perform abortions for fear of liability.

The lawsuits in Tennessee and Idaho, a state where there has been an exodus of obstetric specialists in the past year, include physician plaintiffs. They outline the dilemmas confronting doctors who can face penalties including fines, the loss of their medical licenses and prison terms if they perform procedures that are found to violate the bans.

Nicole Blackmon, the lead plaintiff in the Tennessee lawsuit, realized she was pregnant in July 2022. The news came as a happy surprise in a turbulent time of her life, she said. Her son, Daniel, had been slain in a drive-by shooting earlier that year, according to the complaint, and she was managing serious health issues, including a form of hypertension that causes extreme headaches and can lead to vision loss.

Blackmon stopped taking her anti-inflammatory medication to protect the fetus, she said. But a routine, 15-week ultrasound revealed the baby’s stomach and other organs were developing outside its abdomen, as well as showing signs of a lethal malformation known as limb body wall complex, the lawsuit said. In the following weeks, as further tests confirmed the diagnoses, Blackmon said her health worsened.

“It was so much to bear,” Blackmon told The Washington Post. “It was the scariest point in my life. The baby was putting my life at risk.”

After her doctors told her they could not perform an abortion, Blackmon, 31, who lives in Nashville, said she looked into obtaining one outside of Tennessee but felt that traveling was beyond her means. Two months before her due date, as her vision deteriorated and she developed signs of life-threatening preeclampsia, Blackmon’s water broke, according to the complaint. After 32 hours of labor, she delivered a stillborn baby, she said.

“Going through all of that, I don’t want no one to have to suffer or just have to bear the things that I went through. I was lucky enough to survive all of that, but the next person might not be lucky,” Blackmon said. “It made me frightened to go through another pregnancy.”

A spokeswoman for Tennessee Attorney General Jonathan Skrmetti declined to respond, saying they had not reviewed the complaint.

The galvanizing impact this kind of personal testimony can have on public opinion was demonstrated by the Texas case, said Rachel Rebouché, a professor of law at Temple University who specializes in reproductive health law.

That lawsuit drew widespread attention in large part because of the plaintiffs’ graphic, first-person accounts in court. In one particularly harrowing moment, a woman vomited on the stand when she recalled how abandoned she felt after she learned of her baby’s fatal anomalies.

“What has changed a lot of people’s minds have been these high-profile cases of people who have very wanted pregnancies, but nonetheless have been told, ‘Sorry, we cannot provide you care,'” said Rebouché, who noted that abortion access is now the focus of several recent ballot initiatives across the country.

The new cases also raise legal questions about whether states are meeting their obligations to their citizens, she said. “Even outside the court of public opinion, the state may be failing to protect people’s right to life under the state constitution or another law.”

Steven Aden, general counsel for Americans United for Life, accused reproductive rights advocates of creating “a fabrication to scare the public.”

“All of the pro-life doctors I’ve talked to say that there is no state law that prohibits treating a pregnant women who is in emergent circumstances,” Aden said.

The strategy of showing the alleged harm that people with complicated pregnancies have suffered is one front in the abortion battles that have moved largely to the states in the wake of last year’s Supreme Court ruling overturning the federal constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization.

“The abortion industry pivoted after Dobbs because they realized there was no go in the federal courts,” Aden said.

That has put new energy behind ongoing efforts to establish a constitutional right to abortion in states.

“The thinking is, ‘Let’s do at the state level what Roe did at the national level,'” said attorney Ed Whelan, referring to Roe v. Wade, the landmark 1973 Supreme Court decision that established a federal right to abortion. But there are limitations to that approach, according to Whelan, a senior fellow of the Ethics and Public Policy Center, a conservative think tank: State constitutions are comparatively easy to amend, so the right could be overturned.

But Hearron said the Texas suit was revelatory to people who heard the testimony. “Many people who don’t think they know somebody who has had an abortion are now realizing it affects all of us,” he said.

The testimony also encouraged women in other states to speak out about their experiences, he said.

Allie Phillips, another Tennessee plaintiff, documented her pregnancy loss on social media, describing the turmoil of discovering during a routine ultrasound at 18 weeks and 5 days that her second baby, Miley Rose, had multiple deformities. Two weeks later, the 28-year-old from Clarksville, who suffers from dehydration following gastric sleeve surgery, traveled to New York for an abortion, where she learned Miley had already died.

Jennifer Adkins, 31, a plaintiff in the Idaho lawsuit, said she never imagined she would sue her state over abortion care. After a 12-week ultrasound revealed her baby’s many defects, doctors warned she was at risk for a rare but dangerous condition known as mirror syndrome, in which the mother’s body begins to mimic the fetus’s life-threatening symptoms. But Adkins said they told her the law prevented them from providing an abortion. She ultimately obtained one in Oregon.

“I can’t stop bad things from happening to people’s pregnancies,” Adkins said. “But I want other Idahoans to feel safe and cared for.”

Idaho Attorney General Raúl Labrador did not respond to requests for comment.

Most of the 14 states where abortion is banned have exceptions for medical emergencies, according to KFF, a health policy organization that tracks state laws. Many doctors have argued that those exceptions are written in nonmedical language and fail to reflect the health risks to a mother that come with pregnancy and childbirth.

“People completely underestimate how dangerous a pregnancy can be, even to a healthy person,” said Mae Winchester, a maternal fetal medicine specialist in Ohio. A six-week ban took effect immediately in Ohio after the Dobbs ruling until a judge blocked its enforcement; the state is expected to appeal.

Risks are greater for the many women with preexisting conditions such as diabetes or hypertension. A lethal fetal anomaly adds complications for women weighing the risks to their health, Winchester said. Specialists are avoiding practicing in states with bans, she said, which impacts all kinds of gynecological care – such as the provision of Pap smears and hysterectomies for fibroids.

But Ingrid Skop, an OB/GYN and an expert witness for the state in the Texas lawsuit, has written about managing complex pregnancies during the three decades she practiced in Texas and said her practice remains the same in the wake of the state’s abortion bans.

Skop, who also works for the antiabortion Charlotte Lozier Institute, blames “media misinformation” and “lack of clarity by professional organizations” for the confusion doctors now say they are experiencing. “Rather than reading the law, many physicians read newspapers instead and have erroneously concluded that state pro-life laws prioritized fetal life over the life of the woman,” Skop wrote on the institute’s website.

In an interview, Emily Corrigan, an emergency obstetrician and plaintiff in the Idaho lawsuit, said she has witnessed the chilling impact on her colleagues, several of whom have left the state.

Corrigan’s work, often in the emergency room, is usually protected by a federal law – the Emergency Medical Treatment and Active Labor Act – requiring hospitals to stabilize patients with an emergency medical condition.

The Center for Reproductive Rights’s legal action in Oklahoma focuses on that issue. In the complaint filed with the U.S. Department of Health and Human Services, Jaci Statton describes the pain and nausea she says she suffered when she discovered that she had a partial molar pregnancy, meaning the fetus would not survive and she was at risk of hemorrhage.

According to the complaint, Statton arrived – bleeding and barely able to walk – at the Oklahoma Medical Center, where she was denied an abortion and instead sent to the Oklahoma Children’s Hospital. There, the complaint says, she and her husband begged staff members to perform an abortion but were told to wait in the parking lot until her condition deteriorated. Statton fled the state on a three-hour drive to get an abortion in Kansas, according to the complaint.

OU Health attorney Paul Neimeyer did not respond to requests for comment.

The complaint comes after the Center for Reproductive Rights had successfully challenged some of Oklahoma’s abortion bans last year on the grounds that the exceptions were too narrow.

With little possibility of advancing their cause in federal courts, abortion rights groups are fighting the 15-week ban in Florida, where oral arguments were held Friday, and the six-week ban in South Carolina, in addition to these new actions.

“We are trying to achieve as much progress as we can, state by state,” Hearron said.