Who determines the standards of reproductive health care?
Georgia policymakers and health care providers discussed the intersection of medicine, law and politics at the annual bar, media and judiciary conference.
Who determines the standards of health care in Georgia/? According to Dr. Carrie Cwiak, an OB-GYN and a plaintiff in SisterSong v. Kemp, the lawsuit challenging Georgia’s six-week abortion ban, the answer isn’t clear.
At the the 32nd annual Georgia Bar, Media & Judiciary Conference’s abortion panel discussion Friday, Cwiak criticized what she called “legal gray areas” in Georgia’s abortion statute. Due to a lack of clarity in the law’s language, Cwiak said health care providers are uncertain as to whether it’s up to doctors, legislators or lawyers to determine appropriate (and nonactionable) patient care.
The panel during the daylong event at the State Bar of Georgia Conference Center in Atlanta also included lawmakers and media professionals.
Georgia’s abortion ban, House Bill 481, which reduced the cutoff period for abortions from 20 weeks after conception to six, was approved by the legislature and signed into law by Gov. Brian Kemp in 2019 but then immediately challenged as unconstitutional in SisterSong. But in July, after the U.S. Supreme Court the previous month struck down the federal right to abortion established in Roe v. Wade by upholding a Mississippi abortion ban in Dobbs v. Jackson Women’s Health Org., the U.S. Court of Appeals for the Eleventh Circuit in Atlanta approved the state’s abortion ban.
As written, the new Georgia law carves out exceptions for people who have ectopic pregnancies and miscarriages, incest and rape (if the patient presents a police report), “medically futile pregnancies” and when doctors determine there’s a medical emergency.
Cwiak cited issues with the requirement to submit a police report for the rape and incest exception, because “it’s hard to get victims of sexual assaults to report [them] in the first place.” However, her main issue is that the language in the bill “is not typical medical language.”
Doctors don’t date pregnancies from the point of fertilization or use the term “medical futility.” “It’s hard to translate for providers and understand what that really means,” Cwiak said.
Similarly, while some medical emergencies are easily identifiable, others are less so. For example, sepsis (severe infection) is a more obvious medical condition when an abortion is probably necessary. However, other situations aren’t so clear-cut. When a patient has a history of blood clots, his or her chance of getting another increases 300 times postpartum, but because a patient isn’t immediately at risk of dying, Cwiak said she isn’t able to provide an abortion.
“It’s difficult when you have a condition like pregnancy which, by definition, increases your risk of complications as the pregnancy continues and even more so in that immediate postpartum period,” Cwiak said.
While the reiteration of federal Emergency Medical Treatment and Active Labor Act rules has somewhat reassured doctors that they are able to continue in their duty of care to their patients, the resulting chilling effect may also impact health care and political reporting.
Maya Prabhu, a panelist and legislative reporter at The Atlanta Journal-Constitution, said that she experienced challenges when asking patients who received abortions to be interviewed on the record about their experiences. She has, at times, needed to resort to allowing partial anonymity for sources to feel comfortable sharing their stories.
Currently, the AJC does not allow abortion doctors anonymity, but it’s unclear how that might change in the future. In Prabhu’s experience, sources don’t want to tell stories that could leave them open to potential civil and criminal liability, which could make providers hesitant to talk about what they’re doing. Cwiak said many abortion providers already feel their safety threatened by regular protests at the clinics where they work, and she herself works with an office of general counsel to interpret legal language and determine how that translates when providing medical care.
State Rep. Saira Draper, D-Atlanta, a panelist who campaigned on preserving access to abortion services, said that, while the more extreme measures taken by bills proposed in other states, such as a proposed piece of South Carolina legislation that would introduce the death penalty for seeking an abortion, might not be likely in Georgia, that doesn’t mean other restrictive forms of legislation aren’t on the horizon.
Since Georgia’s six-week abortion ban went into effect, some Georgia district attorneys have publicly said they will not prosecute abortions in their jurisdictions. Georgia’s House and Senate have both introduced bills this session that would penalize rogue DAs. While the Senate version of the bill that passed committee last night has been a work in progress since the last legislative session, according to Draper, the move to penalize these DAs is “not unrelated.” A bill to prevent children from accessing gender-affirming care also passed, on partisan lines, the Senate Health and Human Services Committee earlier this week.
So, what’s next for proponents of abortion access? With the oral arguments for SisterSong v. Georgia, a similar lawsuit to SisterSong v. Kemp, scheduled at the state Supreme Court next month, the future is still murky. But if the six-week ban is here to stay, Draper hopes the language of the statute is flushed out to make the do’s and don’ts of abortion clearer for providers.
“I’m hopeful for negotiation and discussion on that front,” Draper said. “But as far as major overhauls, I’m doubtful.”
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