This story was originally published on idahocapitalsun.com on Aug. 19, 2022.
Dr. Erin Berry once saw a 21-year-old woman with leukemia in her clinic who had to take a break from chemotherapy because her white blood cell counts dipped too low.
During that pause, she unintentionally got pregnant.
“And she was like, ‘What? My body is so sick. I had sex one time because I think I’m going to die,’” Berry said. “So she said, ‘I need to have an abortion. If I don’t do chemo right now, I will probably be dead before this even comes to term.’ … The next day I did a simple procedural abortion on her, and she got to start her chemo.”
Berry said she was one of two pregnant women that day who needed an abortion because of a cancer diagnosis — the other had Stage 4 thyroid cancer.
Berry is an obstetrician/gynecologist who practices in Washington and Idaho, and she is the state medical director for Planned Parenthood in Washington. Those cancer scenarios are not rare, Berry said, and under Idaho’s abortion ban, which will take effect on Thursday, she could be convicted of a felony or sued by families for performing an abortion in a similar scenario.
Challenges to Idaho’s abortion laws by Planned Parenthood and the U.S. Department of Justice are making their way through the court system, and the core of the laws’ penalties are focused not on those facing pregnancy, but on medical professionals.
For Berry, those penalties would turn situations like treating pregnant women with cancer from difficult to impossible.
“That person has a complicated enough life right now. Laws restricting or banning or limiting or giving waiting limits for when those people can have abortions are cruel,” Berry said. “They ignore medical science and the realities of those people’s lives and do harm.”
Idaho Republican legislators have different view of trigger law today
It took seven legislative working days for the Idaho Legislature to pass the trigger law banning abortion. It was early March in 2020, and the House of Representatives passed Senate Bill 1385 the day before legislators adjourned. Testimony on the bill was mixed, but not between anti-abortion and abortion rights activists. Much of the public testimony came from those who thought the legislation didn’t go far enough with its criminal penalties, and that exceptions for rape and incest should be removed.
No medical professionals were present during the meetings, and the subject of exceptions for situations like ectopic pregnancies or other specific medical situations never came up. During the House State Affairs Committee meeting about the bill, Rep. Brooke Green, D-Boise, asked sponsor Sen. Todd Lakey, R-Nampa, about consideration for the health of a mother versus imminent death.
“If you’re talking about health of the mother, that’s a nuanced decision that could be something much less than life, where if the decision was based solely on a question of some type of health, then you’re talking about taking the life of the unborn child,” Lakey said.
Green asked if that meant the health of the woman was irrelevant as it pertained to the trigger law, to which Lakey said, “I would say it weighs less, yes, than the life of the child.”
Rep. Laurie Lickley, R-Jerome, was a co-sponsor of the trigger bill during what was her first term as a representative. But today, as the candidate who is likely to become the next senator of District 26, she has a different view of the idea.
“I really don’t think, from my vantage point, that we can criminalize doctors or women for this,” Lickley said. “We need to sit down and understand the broader implications of how best to protect our unborn children.”
Lickley said she is solidly anti-abortion, but she thinks lawmakers should be talking about offering broader access to contraception, keeping the exceptions for rape and incest in the law, and adding specific exceptions for situations such as ectopic pregnancy and in-vitro fertilization.
“We’ve got to be a little more inclusive in our conversations, and we are elected to represent our constituents across the legislative districts and our regional areas, and they’re the ones that we really have to be beholden to,” Lickley said.
Sen. Jeff Agenbroad, R-Nampa, voted in favor of the bill but said he hopes lawmakers will make changes to the existing laws to respond to concerns. Agenbroad lost his seat in the Republican primary in May, so it will be up to other legislators.
Agenbroad said his niece died while giving birth in June, so the topic hits close to home.
“I still am pro-life, but I think we need to be very thoughtful in these kinds of situations and make sure we’re not sacrificing people’s lives unnecessarily with fear of breaking the law when they’re simply trying to save a life or two lives,” Agenbroad said. “I think that was an unintended consequence of this law, because in my mind we’re really not talking about necessarily a voluntary abortion, it’s a life-and-death decision.”
Ten national organizations, 320 Idaho physicians declare opposition to law
In its initial challenge to the trigger law, Planned Parenthood said one of the reasons the law should be struck down is that the language of the statute is so vague, it should be considered void.
“The consequence of this lack of clarity is that, in practice, physicians will be forced to forgo providing not only potentially legal abortions, but also needed care for miscarriages, because it is impossible to tell from the statute whether this conduct is legal or not,” the lawsuit states.
Although both laws include affirmative defenses for rape, incest and to prevent a pregnant person’s death, opponents say the vagueness makes those defenses essentially meaningless when facing prosecution.
While the involvement in the three lawsuits before the Idaho Supreme Court is largely limited to Planned Parenthood, the Idaho Attorney General’s office and the Idaho Legislature, many organizations quickly filed “friend of the court” briefs in the Department of Justice’s lawsuit against the state of Idaho to join in opposing the state’s abortion ban.
On Monday, 10 medical organizations signed their opposition to the ban, including:
▪ American College of Emergency Physicians
▪ Idaho Chapter of the American College of Emergency Physicians
▪ American College of Obstetricians and Gynecologists
▪ American Medical Association
▪ Society for Maternal-Fetal Medicine
▪ National Medical Association
▪ National Hispanic Medical Association
▪ American Academy of Pediatrics
▪ American Academy of Family Physicians
▪ American Public Health Association
More than 320 Idaho physicians, nurses, health care administrators and other representatives have also formed the Idaho Coalition for Safe Reproductive Health Care, and wrote a letter to Idaho residents, elected officials, business leaders and communities of faith about abortion care.
In the letter, coalition members say they are gravely concerned about Idaho’s abortion laws, and while they have differing personal beliefs around voluntary termination of a pregnancy, they are aligned in a commitment to providing safe, evidence-based care to pregnant patients.
“The Total Abortion Ban outlaws the abortion of any type of ‘clinically diagnosable pregnancies’ without any exception for serious, life-threatening pregnancy complications. Uncertainty about the risk of criminal charges for providing evidence-based care during such a complication could result in catastrophic outcomes,” the letter stated.
“With no option but to continue the pregnancy, patients with these conditions face an unacceptably high risk of death or permanent disability. … These cases are gut-wrenching for all involved. As health care providers we guide patients and their families with the best scientific evidence available, we consult with their spiritual leaders, but ultimately the decision of who lives and who dies is the sole decision of the patient; not us, and most certainly not the lawmakers.”
Expecting doctor’s oath to be enough is ‘ridiculous claim’
Some opponents of abortion, including those who likely will be in the Idaho Legislature when the session begins in January, have stated intentions to pass laws that would eliminate exceptions. The Idaho Republican Party also voted overwhelmingly at its July convention not to include language in its platform that would deem abortion acceptable to save the life of the mother.
Scott Herndon, a far-right North Idaho Republican who won the primary in May and has a write-in opponent named Steve Johnson in November, has championed the idea of a bill getting rid of exceptions for rape and incest, and said the exception language was not necessary in the party platform in part because it is not legally binding in Idaho Code.
He also said the oath a doctor takes to do no harm covers such situations, and if a doctor is treating a pregnant person and the unborn child, it is in line with standards of medical care to determine who can legitimately be saved.
“That, to me, is a ridiculous claim,” Berry said. “You’re telling the doctor that in order to do their job, they have to violate the law. That puts you in an impossible situation.”
She said the news about the GOP party platform made her angry and sad, and the reality is that medicine is hard, and bodies are complicated.
“We use the science and art of medicine to help our patients make those complicated and difficult decisions,” Berry said. “And the Republican Party platform of saying there will be no exception for maternal life takes out the complexity of that decision and hands it to the lawmakers and says, ‘No, we’re the ones who have the right to make this decision.’”
Ectopic, molar pregnancies, other complications will be difficult to assess
Dr. Amelia Huntsberger, an obstetrician/gynecologist who has practiced in the Sandpoint area for a decade, said medical decisions are not as simple as some may think, and patient safety will be at risk under Idaho’s new abortion laws.
To Huntsberger, if jail time or the suspension of the physician’s license is on the line, the lack of specificity in the law will impede medical judgment.
“When can I intervene? Does (the patient) just need to be sick, or at the brink of death?” Huntsberger said. “I’ve read these laws over and over, and I still don’t know what they mean in terms of the practice of medicine. Lawyers in this state don’t seem to agree, so how am I supposed to know?”
Idaho’s law does not specifically mention ectopic pregnancies, which are the leading cause of death for pregnant people in the first trimester and account for about 1% to 2% of all pregnancies. An ectopic pregnancy occurs when an embryo implants in an area outside of the uterus, most commonly in the fallopian tube. The fallopian tube cannot expand to the same rate as the uterus to accommodate the embryo as it grows, and at a certain point, without intervention, the tube will burst, which can be fatal.
But Huntsberger said there is no guidance in the law about when the condition becomes life-threatening enough to end the pregnancy.
“It can’t necessarily be predicted (when the tube will burst),” she said. “A woman may be stable at the time of her diagnosis, but she could become unstable at any time. … So if there’s a heartbeat and I surgically remove the pregnancy from the fallopian tube, am I going to face civil or criminal charges? Should the woman sit in the hospital and wait for her tube to burst open and start bleeding heavily? Should she go home and wait for a life-threatening bleed to occur?”
And if a doctor doesn’t intervene promptly and offer medical treatments that align with the recommended standard of care, Huntsberger said, there’s also potential for a malpractice lawsuit.
Irish woman died from pregnancy-related infection, as doctors feared jail
The potential scenarios aren’t just related to ectopic pregnancies. A miscarriage can result in infection or dangerously heavy bleeding if it is not properly managed. Up to one in four pregnancies end in miscarriage, according to the U.S. National Library of Medicine.
Huntsberger also talked about abnormal pregnancies such as molar pregnancy, which occurs when the placenta develops abnormally into a mass of cysts within the womb. In a partial molar pregnancy, a fetus may develop and have a heartbeat, but it will not survive. There is no exception for molar pregnancy or for lethal anomalies in Idaho’s abortion laws.
A pregnant person’s water also could break too early in pregnancy, before the stage when the fetus could live outside the womb with medical support. When amniotic fluid is lost, it affects fetal lung development, and Huntsberger said the risk of infection for the pregnant person goes up dramatically.
That scenario led to a woman’s death in Ireland in 2012, when Savita Halappanavar’s water broke at 17 weeks and she was not able to abort the fetus, which still had a heartbeat. Though a doctor told her the fetus would eventually die, they declined to intervene for fear of jail time.
Halappanavar died from an infection five days later. The case led Ireland to change its abortion laws in 2018.
Huntsberger said that even if an infection didn’t lead to death, it could necessitate a need for a hysterectomy to save the person’s life, which would preclude future pregnancies.
“Imagine the government forcing you to manage a pregnancy with a grim prognosis until your future and your very life hang in the balance,” Huntsberger said.
Abortion policy could lead to more severe obstetrician shortage in Idaho
For several years, Idaho has had a shortage of active primary care physicians, and it ranks 49th in the U.S. for active physicians overall. According to the Idaho Department of Health and Welfare, nearly every corner of Idaho, or 98%, has a shortage of primary care physicians.
Berry expects that to get worse as the abortion laws go into effect, and said she has already heard from providers who are looking for jobs in other states and moving their practices.
“I foresee a very grim health care future not only for patients, but for the quality of health care providers and the future of recruiting health care workers to the state,” Berry said.