Selective reduction
How abortion laws in different states might affect selective reduction, which is used in some pregnancies to reduce the total number of fetuses a person is carrying, is even more ambiguous. The goal of selective reduction is to decrease health risks to the pregnant individual and increase the likelihood of survival for the remaining fetuses. Current Texas law prohibits these procedures.
Someone pregnant with quintuplets, for example, might seek selection reduction to reduce the pregnancy outcome to triplets or twins. A related procedure, selective termination, is used to terminate the life of a fetus with abnormalities while the pregnancy of the fetus’ in utero siblings continues.
The advent of assisted reproduction methods, such as in vitro fertilization (IVF), greatly increased the incidence of higher-order multiples, those with three or more fetuses. The first IVF baby was born in 1978. By 1998, the rate of higher-order multiple births was 1.9 per 1,000 births, five times the figure in 1980. The rate has since decreased by nearly half, to 1 per 1,000 births, but with 3.75 million live births a year, that’s still a lot of pregnancies with higher-order multiples.
The American College of Obstetricians and Gynecologists does not provide explicit guidance on when selective reduction is warranted, but its committee opinion on multifetal pregnancy reduction provides an ethical framework for providers to use when counseling people with pregnancies of three or more fetuses. How would various state laws that outlaw abortion affect these decisions? No one knows.
“Selective reduction ends the life of a fetus or embryo, but it doesn’t end the pregnancy,” Dr. Harris said. “So, if the pregnancy continues but it kills an embryo or fetus, is that an abortion?”
‘The question of the hour’
Dr. Harris and other doctors are haunted by potential medical cases in which continuing a pregnancy may result in the death of the person carrying the fetus but in which such death may not be so imminent that the law would allow immediate termination of the pregnancy.
Michael Northrup, MD, an intensive care pediatrician in Winston-Salem, N.C., recalled a particularly harrowing case that illustrates the peril in deciding when someone’s life is “enough” in danger to qualify as an exception to abortion bans.
The 14-year-old girl had severe lupus and kidney failure that required treatment with methotrexate and immediate dialysis to replace her electrolytes. A standard pretreatment pregnancy test revealed that she had been carrying a child for at least 10 weeks. Her pregnancy presented two problems. Methotrexate is so severely toxic that it’s sometimes used to end pregnancies. Even at low doses, fetuses that survive usually have severe deformities. In addition, dialysis requires administration of a blood thinner. If the teen miscarried while taking a blood thinner during dialysis, she risked bleeding to death.
Treatment could be delayed until week 24 of pregnancy, at which time delivery could be attempted, but the patient likely wouldn’t have any kidney function left by then. In addition, at 24 weeks, it was unlikely that the baby would survive anyway.
Dr. Northrup said that, had she chosen that route, “I’m not sure she would have made it. This was a religious family, people who very much were believers. They had their head of church come in, who fairly quickly determined that the best thing for her health was to terminate this pregnancy immediately and get the treatment she needed for her body.”
Would such a situation qualify for an emergency termination? The girl wasn’t going to die within 24 or 48 hours, but it may not have been possible to pinpoint the time of death within a day or 2.
“The family was sad, but they made that choice, and I wonder, would we have to justify that with these new laws?” Dr. Northrup said. “You definitely worry, being in the hot seat, ‘Does this count enough? Is she close enough to death?’ ”
The same question comes up when someone’s water breaks early in the second trimester. Since a live-birth delivery would be highly unlikely, given the age of the fetus, the standard of care is to offer to terminate the pregnancy to avoid a serious infection, Dr. Harris said. But if the infection hasn’t yet developed – even if it’s likely to develop soon – doctors in a state that outlaws abortion would not be able to offer termination. But as providers wait for an infection to develop, the person’s risk of dying from infection rapidly increases.
“How likely does someone need to be to die for it to count to get a life-preserving abortion?” Dr. Harris asked. “That, I think, is the question of the hour.”
Different institutions may decide to determine their own risk thresholds. One hospital, for example, may decide that any health threat that is associated with a 10% risk of death qualifies for a lifesaving abortion. But for many people, a 1 in 10 chance of dying is quite high.
“Who gets to decide what’s meaningful?” Dr. Harris asked, especially if the patient is already a parent of living children and doesn’t want to take any risk at all of orphaning them for a pregnancy with severe complications.
“The point is that this is way more complicated than anybody really knows, way more complicated than any legislator or justice could possibly know, and it creates all kinds of complicated ambiguities, some of which could result in harm to women,” she said. “I’ve been a doctor almost 30 years, and every week, sometimes every day, I’m humbled by how complicated pregnancy is and how complicated people’s bodies and life situations are.”
That’s what makes it so dangerous for policymakers to “insert themselves into medical practice,” Ms. Nash said. She worries about the legal ramifications of overturning Roe, such as prosecution of people who illegally undergo an abortion or of physicians who perform a procedure that a judge deems to be in violation of abortion law.
“There are already local prosecutors who have misused the law to go after people who have managed their own abortions,” Ms. Nash said. “Criminal abortion law, fetal homicide, child neglect, practicing medicine without a license – these are things people have actually been arrested and convicted under.”
Some laws may target the person seeking an abortion, whereas others may target clinicians providing abortions, or even people who simply help someone obtain an abortion, as the Texas law does. In Dr. Harris’s own state of Michigan, a group of Republican lawmakers recently introduced a bill that would imprison abortion providers for up to 10 years and anyone creating or distributing abortion medication for up to 20 years.
Michigan Gov. Gretchen Whitmer, a Democrat who called the proposed legislation “disturbing” and “infuriating,” would almost certainly veto the bill, but it’s just one of dozens already filed or that are expected to be filed across the United States.
The antiabortion organization National Right to Life has published a “post-Roe model abortion law” for states to adopt. The model includes an exemption for abortions that, “based on reasonable medical judgment, [were] necessary to prevent the death of the pregnant woman” – but, again, it does not clarify what that means in practice.