ST. LOUIS — Missouri health officials on Wednesday released answers to questions about Missouri’s abortion ban, but some say they do little to address confusion about exceptions for medical emergencies and how the law will be enforced.
The created by the Missouri Department of Health and Senior Services listed answers to four “frequently asked questions” about the regulations.
The answers stressed that DHSS does not determine whether an abortion is conducted legally, and that only law enforcement, local prosecutors and the Missouri Attorney General’s Office can investigate and decide if a crime has been committed.
In trying to answer what constitutes a “medical emergency,” the document simply reiterated the narrow definition in the state statute and said health officials are not able to give legal advice.
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Whether a condition fits the emergency definition is based on “reasonable medical judgment,” according to the statute.
Reasonable medical judgment “is intended to allow reasonably prudent physicians who have studied the conditions and treatments, flexibility to tailor their recommendations to the unique health care needs of individual patients,” the new document states. “Oftentimes, what is reasonable depends on acceptable standards of care developed by doctors and medical professionals.”
The guidance comes on the heels of providers and attorneys questioning whether a pregnant patient has to be on the verge of death before an abortion can be used to save her life.
Dave Dillon, spokesman for the Missouri Hospital Association, said the same concern remains: How will the law be interpreted by law enforcement?
“The practical challenge is the interpretation of the law — in real time and on the front lines of care — where clinical judgment matters,” Dillon said. “The uncertainty of whether that judgment will be second-guessed is the challenge for physicians. It is impossible to know in advance whether a prosecutor or member of law enforcement will agree about a clinician determination of risk to the life of the mother.”
Missouri’s abortion ban was passed by the Republican-led Legislature in 2019 and triggered by the Supreme Court’s Dobbs ruling on June 24, which overturned Roe v. Wade.
The law makes exceptions for a medical emergency, defined as “a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
Under the law, providers who violate the abortion ban can be charged with a Class B felony, punishable by five to 15 years in prison, and lose their medical license.
Lisa Cox, spokeswoman for DHSS, told the Post-Dispatch that DHSS will not share (which providers submit each time an abortion is performed) with law enforcement, and would only provide reports under a court order.
The abortion report form that’s currently in use, which requires providers to explain the medical threat to the pregnant woman only in late-term abortions when the fetus could be viable outside the womb, also is out of date.
Cox said DHSS regulation and licensure staff are currently reviewing the forms and discussing if any changes need to be made.
The Post-Dispatch submitted questions to Missouri Attorney General Eric Schmitt, asking how the abortion ban will be enforced — whether his office plans to rely on whistleblowers, subpoena abortion report forms from DHSS or use other measures.
Chris Nuelle, spokesman for Schmitt’s office, responded with the following statement: “The Missouri Attorney General’s Office will work to uphold Missouri law and protect the sanctity of life.”
Richard Muniz, general counsel for Planned Parenthood of the Ƶ Region and Southwest Missouri, said, the fact sheet from DHSS is “cold comfort” to Missouri hospital and providers.
“If history is any indication, we know the state of Missouri will weaponize its health oversight authority to second-guess the abortion care that is provided in the state …,” Muniz said, referring a legal fight in 2019 where DHSS refused to grant a license to the state’s only abortion facility.
Dr. Jeannie Kelley, a Washington University high-risk obstetrician at Barnes-Jewish Hospital, said while massive bleeding from the uterus or an ectopic pregnancy (when a fertilized egg implants outside the uterus) are clear medical emergencies, clear-cut situations such as those are few.
“There’s a lot of situations where someone’s medical health is at risk from pregnancy, and it takes a lot of medical training to get to the point where we can suss that out,” Kelley said. “We are worried about the gray areas that may come up.”
Examples, she said, are numerous: The amniotic sac rupturing early in pregnancy, placing the person at high risk of a serious infection or tear in the placenta; bleeding heavily or showing signs of a clot forming.
“How much bleeding is an emergency has a huge gray area for some of us in these situations,” Kelley said. “That isn’t necessarily answerable at this time.”
Pregnant women with medically complex conditions such as a heart transplant, brain cancer or kidney disease can sometimes quickly deteriorate.
“If we wait until she gets sicker and sicker and sicker, and she meets criteria as a medical emergency, then she starts hemorrhaging, or her cancer is at a point that is no longer treatable … if we wait until then, it may be already too late to stop the disease from progressing to a place that is not controllable, which would obviously be pretty disastrous for both the patient and her fetus,” Kelley said.
Such medical situations are not rare, she said.
“I would say for the majority of high-risk obstetricians who deal with pretty complicated maternal disease, this is a frequent occurrence throughout our practice that a gray area might come up,” Kelley said.
She is also unsure how the state’s law will be enforced.
“We don’t know any of the answers to that,” she said. “Certainly all of us are worried that either we or our patients will be reported to the authorities by someone.”
Still, Kelley said, more specifics in the law could bring more concerns.
“All of the obstetric providers across the state would love clarification of what constitutes a medical emergency,” she said. “At the same time, we worry that because this is coming from non-medical people, that even if they defined a list, they would unknowingly exclude things from that list.”
Posted at 6:45 p.m. Wednesday, July 13.