An influential group in Louisiana that has long opposed abortion access is calling out medical providers and their legal advisers who – for an apparent fear of liability – have cited the state’s ban on most abortions to deny treatments that remain legal.
The group spoke out after hospitals in the state’s capital, Baton Rouge, refused to provide treatments for a woman who had a near deadly miscarriage.
The treatments which Kaitlyn Joshua needed were similar to an abortion, and her doctors feared being prosecuted, citing purported ambiguities in the ban on terminating most pregnancies which took effect in Louisiana after the US supreme court last year overturned the nationwide abortion rights granted by Roe v Wade.
Even though Louisiana has some of the tightest restrictions against abortion in the US, Joshua was legally entitled to the care she sought under an exception to the ban which involves miscarriages, Sarah Zagorski of Louisiana Right for Life said.
Zagorski, whose organization has been involved in anti-abortion legislation since 1970, said it is clear under Louisiana’s abortion ban that it is legal to provide and receive miscarriage treatments, even if they closely resemble some abortions.
“It was just a gross misunderstanding of the law from the practitioners handling the case, unfortunately,” Zagorski said.
In a recent interview with the Guardian, Zagorski said the public in general urgently needs more education on the exceptions to the abortion ban in a state which has the highest maternal mortality rate in the US. While she stopped short of saying what her organization might be able to contribute that effort, she did say it was imperative for medical providers and their legal teams to take it upon themselves to study and comprehend the exceptions to the abortion ban in Louisiana, especially in light of a case like the one centering on Joshua.
Joshua for her part has retained an attorney, though neither she nor the lawyer would comment to the Guardian on what actions they are possibly contemplating against any providers who turned Joshua away.
“The law itself is very specific about this,” Zagorski added. “This should not have been how this happened.”
Louisiana’s abortion ban states, in part: “Abortion shall not mean any one or more of the following acts, if performed by a physician: …The removal of a dead unborn child or the inducement or delivery of the uterine contents in case of a positive diagnosis, certified in writing in the woman’s medical record along with the results of an obstetric ultrasound test, that the pregnancy has ended or is in the unavoidable and untreatable process of ending due to spontaneous miscarriage, also known in medical terminology as spontaneous abortion, missed abortion, inevitable abortion, incomplete abortion, or septic abortion.”
To the author of the ban, the Louisiana state senator Katrina Jackson, the language makes it clear that miscarriage treatment is distinct from an abortion. Though she did not speak with the Guardian, she has previously released a statement to National Public Radio and its local New Orleans affiliate, WWNO, saying that nothing in the law bans women from receiving miscarriage treatments.
But Jackson has not indicated whether she may try to at all clarify the legislation she authored. She first faced calls to do at least that after Louisiana woman Nancy Davis, who was carrying a skull-less fetus that would die within a short time of birth, was denied an abortion in the state and had to travel to New York to terminate the pregnancy.
Abortion access advocates have similarly rallied around Joshua.
At six weeks pregnant with her second child, Joshua called a physician group in Baton Rouge – her state’s capital – to schedule her first prenatal appointment, but the clinic denied her an appointment. The group said it was no longer providing prenatal care for women under 12 weeks of pregnancy because it thought it was too risky in light of the abortion ban that took effect in Louisiana after last year’s overturning of Roe v Wade to be ambiguous.
Miscarriages most frequently occur during the first trimester of pregnancy, and they require the same medical procedures as abortions, Joshua – who declined to speak to the Guardian – was told. Joshua told WWNO that the clinic did not want to face possibly being investigated if their miscarriage care was interpreted as an abortion.
As a Black woman, Joshua told WWNO that she was aware of maternal-related deaths in her state. A 2018 report by the Louisiana Department of Health found that Black women are four times more likely than their white counterparts to die during childbirth, so she decided to schedule her next appointment with a Black obstetrician.
Yet before her appointment, Joshua bled heavily and felt severe pain between her 10th and 11th week of pregnancy. She went to Woman’s Hospital in Baton Rouge for immediate care and received an ultrasound that showed her fetus had a faint heartbeat and had stopped growing three or four weeks earlier.
Joshua’s pregnancy hormones, meanwhile, were abnormally low. Nonetheless, the hospital would not confirm that she was having a miscarriage.
By the next evening, Joshua ended up at Baton Rouge general hospital after losing a large amount of blood and tissue. A female doctor told Joshua that there appeared to be a cyst in her ultrasound and questioned if she was pregnant.
Joshua told WWNO that the doctor recommended waiting at home for the miscarriage to pass, if this was in fact a spontaneous abortion. However, the doctor refused to give her treatments that would lessen the pain and quicken the miscarriage.
“She stated that they’re not going to put … ‘spontaneous abortion’ [anywhere] because that would then flag an investigation on them,” Joshua told WWNO.
Zagorski says it’s natural for things to be confusing for providers and patients after last year’s landmark supreme court decision. Nonetheless, Joshua’s ordeal was separate and apart and clearly fit the built-in exceptions, she said.
For the record, Zagorski said neither her group nor the ban support aborting a child with life-threatening medical conditions, as seen in the Nancy Davis case. “We believe that even in dire severe cases like that, where the baby is likely to not live long, that it is still a human life and there are ways that a woman can deliver naturally and have hospice care for that baby,” Zagorski said.
Despite that stance, Louisiana’s state health department issued an emergency rule late last month that allows women to terminate pregnancies if their unborn child suffers from one or more of 25 listed medical conditions, including acrania. The medical diagnoses remain an exception to the abortion law for at most 180 days.
Abortion access advocates would prefer Louisiana and other similarly situated states to do away with their bans altogether. But the legislatures of Louisiana and those other states are controlled by conservatives who oppose abortion.