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Doctors who would like to defy abortion laws say it's too risky

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Doctors in states with abortion bans can face prison time and lose their licenses if they violate the laws. Some are calling on doctors to openly defy the bans.

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It's been five months since Roe v. Wade was overturned, and now 13 states have laws banning abortion with limited exceptions for medical emergencies. Doctors who violate these laws could face felony charges, prison time and the loss of their medical license. Surveys, news reports and court affidavits show the fear of these laws has caused some doctors to delay or deny abortions, including in emergencies. Some doctors are asking themselves a tough question - when they are forced to choose between their ethical obligations to patients and the law, should they defy the law? NPR's Selena Simmons-Duffin reports.

SELENA SIMMONS-DUFFIN, BYLINE: Here's an example of how the exceptions in abortion bans for emergencies can still cause problems for patients. NPR reported last week on Christina Zielke, who was discharged from an Ohio ER, bleeding heavily from a miscarriage.

CHRISTINA ZIELKE: They said they needed to prove there was no fetal development. And I was told that I could come back in two days for a repeat hormone test to confirm I was miscarrying.

SIMMONS-DUFFIN: She says doctors acted as if they didn't believe she was having a miscarriage, even though there was no heartbeat during her ultrasound, so they didn't offer her a D&C procedure to stop the bleeding, the same procedure that's used for abortions. Hours after being discharged, she was taken back to the ER in an ambulance and given the D&C. The hospital declined NPR's request for an interview. Another example? The Texas Policy Evaluation Project conducted a survey of clinicians operating under that state's restrictions. It found that sometimes providers avoided doing D&Cs, opting instead for, quote, "a surgical incision into the uterus because it might not be construed as an abortion."

MATTHEW WYNIA: That's just nuts.

SIMMONS-DUFFIN: Dr. Matthew Wynia directs the Center for Bioethics and Humanities at the University of Colorado.

WYNIA: Much more dangerous, much more risky. The woman may never have another pregnancy now because you're trying to avoid being accused of having conducted an abortion.

SIMMONS-DUFFIN: Not all doctors agree that the abortion restrictions are responsible for harming patients. The American Association of Pro-Life OB-GYNs calls that idea absurd, arguing OB-GYNs have many years of training to know when to intervene before a condition becomes life threatening. But many doctors and groups, like the American Medical Association, are concerned. Wynia published an editorial in the New England Journal of Medicine in September calling for physicians to take a stand against these laws, when necessary, using civil disobedience.

WYNIA: I have seen some very disturbing quotes from health professionals essentially saying, well, look - it's the law. We have to live within the law. And if the law is wrong and causing you to be involved in harming patients, you do not have to live to that law.

SIMMONS-DUFFIN: There's actually a long history of civil disobedience around abortion. Mary Ziegler, a legal historian at UC Davis, says for many decades, starting in the 1900s, there was kind of a don't-ask, don't-tell silence around abortion.

MARY ZIEGLER: By the '40s, you get more of a crackdown on abortion, and it's more framed as a vice or a racket, the same language you'd be using against organized crime.

SIMMONS-DUFFIN: Lots of abortion providers got arrested and prosecuted. Then hospitals began forming committees to authorize certain abortions in certain circumstances, like emergencies. But some doctors felt that wasn't enough. Allowing abortion when someone's death is imminent may be straightforward, but what about when someone has a heart condition and pregnancy makes that condition worse? Or if a patient tells their doctor, If I can't get an abortion, I'm going to harm myself? Ziegler says doctors wanted more leeway to follow their conscience and provide abortions in more situations. And in the 1960s, in the period leading up to Roe v. Wade, some doctors began to openly defy abortion laws.

ZIEGLER: Not just getting arrested 'cause they happened to get caught, but trying to get arrested.

SIMMONS-DUFFIN: Dr. Milan Vuitch is one example, she says. He was arrested 16 times for providing abortions in Washington, D.C. Dr. Leon Belous was arrested in California for just referring someone for an abortion. He fought back in the courts. And in Canada, Dr. Henry Morgentaler was actually imprisoned for violating abortion laws. He used the legal cases brought against him to progressively legalize abortion across that country.

ZIEGLER: One interesting question is, like, well, why is it that we don't have more, you know, Dr. Morgentalers now?

SIMMONS-DUFFIN: For one, she says, the penalties now are very different.

ZIEGLER: In the pre-Roe era, often if you violated an abortion law, I mean, you could lose your license to practice medicine. Most people didn't really face much real prison time. Some state laws now treat doing an abortion as like life in prison.

SIMMONS-DUFFIN: That's the penalty for violating the abortion ban in Texas. Dr. Louise King raises another reason why there haven't been more people openly defying these new abortion laws. She directs reproductive bioethics at Harvard University and is an OB-GYN surgeon. She says if she were to purposefully get arrested in Texas, for example, where she went to medical school and did her residency, she doesn't think it would actually be effective in getting laws changed.

LOUISE KING: It's probable in Texas I'd lose the case. It's going to go up - what? - through the Fifth Circuit? I'm not going to win in the Fifth Circuit. And then am I going to win it in the Supreme Court? No.

SIMMONS-DUFFIN: She adds another consideration is how few OB-GYNs there are who provide abortions. Any doctor who's sitting in jail or fighting felony charges will never work again, and that's one fewer person who's able to take care of patients.

KING: So what's the point? I don't even see the point.

SIMMONS-DUFFIN: So far in the five months since Roe v. Wade was overturned and state bans began to take effect, there have been no reported prosecutions of health care workers. But Wynia says charges against doctors will certainly come.

WYNIA: There will be individual doctors who will get - presumably, will end up in court. And then, you know, the question will arise - were they supported? Can they be supported?

SIMMONS-DUFFIN: He says this is a leadership issue. He wants organized medicine, accrediting organizations and medical facilities like hospitals to unite in saying clearly that they will support clinicians who decide to follow the standard of care for a patient, even when that violates state abortion laws. Last week at the American Medical Association meeting, the legislative body directed a task force to develop a legal defense fund and strategy to help physicians who do face prosecution. Wynia says that's a good first step.

Selena Simmons-Duffin, NPR News.