The Louisiana state legislature shot down two bills last week that aimed to clarify the legality of abortion and miscarriage care in pregnancies with complications.
The existing laws in Louisiana allow for abortions in certain cases when a pregnant patient’s life or health may be at risk, but physicians have criticized the texts for being confusing and limiting their ability to provide essential medical care.
Just like health care providers in other states, they’ve grappled with the issue since the U.S. Supreme Court struck down Roe v. Wade last year—in Louisiana’s case, Governor John Bel Edwards signed laws banning elective abortions and criminalizing providing them soon after the decision. Currently, there are 14 states where most abortions are banned.
“It’s impossible to spell [out] every single presentation that a patient [with a nonviable pregnancy] might have in law,” Dr. Jennifer Avegno, New Orleans Health Department director and an emergency physician, tells TIME. “I use my good faith medical judgment and as long as that’s in accordance with the medical standard of care, then you really shouldn’t question that right.”
Avegno testified in front of the Louisiana House in support of one of the bills, saying she spoke on behalf of countless colleagues throughout the southeast who’ve had to navigate a perplexing and constantly shifting legal landscape.
Here’s what to know:
Debates in Louisiana
Louisiana’s near-total abortion ban allows for few exceptions in circumstances where a pregnant patient’s life or essential organ is at risk, or when the fetus is deemed medically futile and unable to survive outside the womb. But the law doesn’t use very much medical terminology, physicians say.
“The initial law tried to clarify, ‘Let’s name all the conditions we can possibly name and those will be okay.’” The list compiles just over two dozen conditions, but, says Avegno, “as any practicing physician will tell you, there are always going to be new ones or ones you haven’t thought of.”
Republican Rep. Mary DuBuisson proposed House Bill 461 in March, which would ammend the law to allow for abortion procedures to be legal for any treat patients who have been diagnosed “in good faith medical judgment” as having pregnancies that have ended, are in the process of ending, or that entail complications that render them nonviable. In other words, it removes the requirement of the diagnosis of a few specific conditions.
At the bill’s hearing, DuBuisson emphasized that she does not support abortion broadly, but under the current state law “we are not protecting mothers,” she said. “We are leaving them to hemorrhage and carry a dead child until they can die ‘naturally.’” A second bill, HB 598, introduced by Rep. Candace Newell, would expand treatment for ectopic pregnancies, clarify that molar pregnancies could be treated, and permit abortions for cancer patients.
Other Republican lawmakers at the hearing responded that the law appeared clear to them and that they hadn’t received complaints from doctors in their constituencies. Benjamin Clapper, executive director of Louisiana Right to Life, a major anti-abortion group in the state, also testified calling the bills “pro-abortion,” claiming that they would make it easier to perform elective abortions.
The legislature’s criminal justice committee oversaw the hearings and ultimately rejected both bills. And two weeks ago, the Louisiana legislature shot down other proposals to allow for abortion exceptions in cases of rape and incest.
Physicians’ confusion
In Louisiana, abortion providers who violate the abortion-ban law face up to 15 years in prison and $5,000-$200,000 fines. Physicians have reported feeling fearful of providing pregnancy care that they would have in the past. “It’s so critical that physicians feel that they have the ability to make the judgment that is best for their patients without fear of misinterpretation and real consequences,” Avegno says.
In October, Stephen Russo, lead attorney for the Louisiana Department of Health, told doctors that with the new statute, abortion is “more of a criminal nature and really it isn’t something that the [health] department has the authority to police,” the Louisiana Illuminator reported at the time. Russo said his agency wasn’t responsible for addressing physician confusion and that the state attorney general’s office would be better suited.
But, notes Avegno, that’s not practical. “No one’s going to call the lawmakers and say, ‘Oh, this was kind of a scary one. I didn’t know what to do,” Avegno says. “These are the same lawmakers that want to throw physicians in jail.”
Dr. Michele Heisler, medical director for the nonprofit, Physicians for Human Rights, and a professor at the University of Michigan points out the insurance dilemma. With only a handful of conditions listed, insurance and Medicaid may not cover treatment for pregnancy complications outside of the list. Patients could be asked to pay thousands of dollars up front before receiving any treatment.
“It can prevent many low-income women from having the option of not carrying a pregnancy to term,” Heisner says. “Knowing that their baby’s going to die is just incredible psychological trauma.”
Avegno says confusion trickles down to patients. With misoprostol, for example—a medication that can be for abortions, but also to manage miscarriages or induce labor—“there have been women trying to get them filled at the pharmacy and being told incorrectly, ‘Oh, no, that’s illegal,’” she says. Misoprostol is legal, but Avegno adds that such misinformation spreads quickly.
Physicians in Texas, Tennessee, Ohio, Utah, and Oklahoma have faced similar confusion to those in Louisiana. In April, Heisler co-authored a report in which researchers posed as prospective patients seeking emergency pregnancy care and contacted 34 Oklahoma hospitals. The study concluded that none of the hospitals could articulate clear and consistent policies and 22 hospitals were unable to provide information about abortion procedures when a pregnant patient’s life is threatened.
Heisler says ambiguity in these laws has left hospitals and other institutions to interpret things differently. “The care you’ll get as a patient, and the options that you may not even know about really vary widely,” she says.
If a pregnant patient isn’t going to die, but would have to spend the rest of their life on dialysis, face liver failure, or permanent infertility, those are not currently cases that justify termination in some states, Heisler says. “Every medical situation is different. There’s no way to practice good medicine under a list.”
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