Kentuckians demand control over their bodies as doctors navigate abortion law gray areas

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by Alex Acquisto of the Herald-Leader, and posted via AP Story Share

Four days after the U.S. Supreme Court did away with federal protections for abortion access, triggering Kentucky’s near-total abortion ban to take effect, Destinee Ott knew it was time.

The 25-year-old Beattyville teacher had long considered surgical sterilization, but this was the tipping point. Roe was overturned on a Friday. The following Tuesday, she phoned Lexington Women’s Health to make an appointment to get her tubes tied, a procedure called a tubal ligation that’s a permanent, often irreversible form of birth control.

Ashley Watson, of Wilmore, had a similar realization.

The 36-year-old mother of two knows she doesn’t want to have any more children. Severe fogs of postpartum depression followed each of her daughters’ births.

“My mental health wouldn’t survive another pregnancy,” Watson said this month.

Ashley Watson, who lives in Wilmore, scheduled an appointment to get her tubes tied two days after the U.S. Supreme Court overturned Roe v. Wade and Kentucky’s trigger law banning abortion took effect. (Ryan C. Hermens/rhermens@herald-leader.com)

The overturning of Roe v. Wade by the U.S. Supreme Court in June immediately activated a a state law banning abortion in Kentucky, along with a ban on abortions after six weeks of pregnancy. The complete removal of that access — except if it must be done to prevent the death or serious impairment of a life-sustaining organ of the pregnant person — propelled both Ott and Watson to exert control over their bodies. And control, for them, was eliminating the risk of pregnancy all together.

“We live in a very conservative state, and there’s this fear that birth control is going to be the next thing on (lawmakers’) agenda,” Watson said. To avoid remaining pregnant against her will, permanent sterilization “is the only thing I can do to guarantee that I’m never going to be put in that position.”

Both women quickly learned they are two of hundreds of Kentuckians seeking sterilization in a post-Roe state. It’s a swell in demand that remains two months later, according to seven board-licensed OBGYNs at Baptist Health, Lexington Women’s Health, Women’s Care of Lake Cumberland and University of Louisville Health. Three of them spoke with the Herald-Leader on the condition of anonymity, fearing retaliation from their employer, which has demanded they not speak publicly about this topic.

The anxiety felt by Kentuckians around the future of abortion care extends to their doctors, too. Some say legal gray areas are creating challenges in their practices and could have lasting impacts on health care.

‘Significant’ spike in reproductive procedure requests

Though clinics and hospitals did not have quantifiable data available, Baptist Health, Kentucky’s largest health care system, said its patient demand within a week of Roe falling was “significant” and “notable” not only for tubals, but for vasectomies and other long-term birth control measures.

When abortion was still legal, providers interviewed for this story said they typically received a handful of tubal requests a month, most often from women with biological children. The current surge is being driven by people like Ott — women in their 20s with no children.

Roe was tossed on Friday, June 24. The following Monday, an OBGYN at Lexington Women’s Health told the Herald-Leader their front desk fielded a staggering 91 requests for tubals. A spokeswoman for Axia Women’s Health, which owns the Lexington clinic, declined an initial request for an interview and did not respond to a second.

On July 12, Dr. Lynne Simms said her Baptist Health clinic provided 22 tubal consults. She also “fielded at least five different patients asking me what their options would be in the future regarding birth control.” Even though birth control access is not currently restricted, she said, “our concern as professionals is, what options are patients going to have?”

Multiple providers shared this worry. To make sure patients are prepared for the future they most desire, some are pushing birth control more readily to patients that don’t want to get pregnant immediately. Dr. Alecia Fields, who works at Women’s Care of Lake Cumberland in Somerset, said she’s making a point of mentioning Plan B to her patients, just to ensure they’re aware of all legal birth control avenues.

Even with those on birth control, “I’ve been more up front,” she said, telling patients, “These are the ways it can fail, and if you find yourself in one of these situations, remember, Plan B is available over the counter. It’s legal, it’s not an abortion pill.”

Some patients hoping for the procedure expect push back from their doctor, so they arrive to consultations braced to defend their case, two OBGYNs interviewed for this story said. One patient brought in a detailed list explaining why she wanted the procedure. Another brought a laminated, tri-fold pamphlet, complete with pictures of herself and answers to any anticipated question her provider might have about why she’d made her decision. It was like she was “presenting a project at school,” her OBGYN said.

In short, women in Kentucky guarding their bodies against the possibility of pregnancy have descended in droves. The waitlist for tubals, in some cases, is months long.

Watson, the 36-year-old, got in just under the wire by calling the day after Roe was overturned. She had her consultation with an OBGYN on July 22 and set the date for the procedure in November.

But clinic staff first told 25-year-old Ott they couldn’t fit her in for an initial consultation until December. She called on June 28.

Destinee Ott poses for a portrait at her home in Beattyville, Ky., on Tuesday, July 12, 2022. Ott, 25, made the decision to get her tubes tied after the reversal of Roe. She’s one of many women seeking out this option, in part because she lives with two diseases that would make pregnancy very hard for her. (Ryan C. Hermens/rhermens@herald-leader.com)

Like Watson, Ott’s choice to get a tubal is elective. But it’s also medically necessary, and highlights a more foreboding outgrowth of Kentucky’s trigger law that OBGYNs say they are just beginning to contend with: determining how to give medically necessary abortion care under a vaguely-worded law, the violation of which could result in a felony charge and jail time.

No provider who spoke with the Herald-Leader had a clear understanding of the exact conditions and ailments that count as medical exemptions, but most agreed that an abortion is only legally allowed in the event of a medical emergency.

So, what constitutes a medical emergency?

‘I don’t want a felony charge’

The description of legal exceptions under Kentucky’s trigger law is murky, but the listed criminal penalty for violators is clear-cut.

According to its language, a licensed physician can perform an abortion without risking a Class D felony if it’s “necessary, in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”

The law also mandates the physician make “reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn human being in a manner consistent with reasonable medical practice.”

OBGYNs interviewed for this story want to know: what about anomalies that are unsurvivable to a fetus, but aren’t a health risk to the mother?

For instance, in the case of anencephaly — when a fetus never develops parts of its brain or skull — it’s generally not a risk to the pregnant person to carry it to term. Before Kentucky’s trigger law took effect, the typical treatment route was a palliative induction, or inducing labor early to abort the fetus, which won’t survive outside the womb. But since no medical risk is posed to the pregnant person, and since the fetus could still have a heartbeat, is abortion in this scenario illegal under the trigger law?

What if one’s water breaks early in a pregnancy — a pre-term pre-labor rupture of membranes — likely fatally limiting fetal development and increasing the risk of severe infection in the pregnant person. Is an abortion lawful only if a severe infection develops, even if the fetus isn’t viable?

The overturning of Roe, along with Kentucky’s restrictive abortion laws, “raises a number of legal questions for Kentucky physicians,” the Kentucky Medical Association said last week.

To help providers in “navigating this new legal landscape,” KMA said it’s “working with legal experts to analyze the various implications involved” before it issues official guidance.

Since definitive answers are not yet known, the push is to “document the crap out of these discussions,” and to get second and third opinions, a Lexington OBGYN said.

Recently she ordered a patient with a miscarriage to come in for a second ultrasound before she would perform a surgical abortion to remove the non-viable fetal tissue. Typically that only requires one ultrasound, but she wanted to be able to prove beyond a reasonable doubt, if needed, that her patient had indeed experienced a miscarriage before she provided the abortion.

“I know it’s a miscarriage, but I don’t want to risk anything,” she said. “It’s wasting health care dollars, but I don’t want a felony charge.”

‘I hadn’t worried about it before now’

Ott, like millions of women across the country, is on birth control. And she’s been historically comforted knowing that, should her birth control ever fail, there are options to terminate a pregnancy. But for her, that would be less of a choice and more a necessity; a pregnancy could kill her.

She lives with polycystic ovary syndrome (PCOS) and endometriosis, an often painful disease where tissue that normally lines the inside of the uterus grows on the outside of the uterus. PCOS is when follicles grow in one’s ovaries, spurring irregular ovulation and sometimes infertility.

Even if a person with PCOS gets pregnant, the likelihood an ectopic pregnancy — when a fertilized egg implants outside of the uterus, often in a fallopian tube — is high. Though an ectopic fetus can have a heartbeat, none are viable.

“The fear of having that go wrong — and then, if I did want to have the child, having it go wrong and losing the child — played into me wanting to just cut that possibility off in general,” Ott said.

If not treated early enough, an ectopic will rupture and cause serious medical complications for the pregnant person, even death. Ectopic pregnancies are treated surgically or medically. And both avenues of treatment are considered induced abortions, according to the American College of Obstetricians and Gynecologists.

That means, technically, these procedures are regulated by Kentucky’s trigger law. An ectopic pregnancy will eventually become life-threatening. But it might not be life-threatening, initially, depending when it’s diagnosed in a pregnancy. Herein lies the gray area.

Ott knows this. And under the law, if she were to have an ectopic pregnancy, she worries she wouldn’t reliably be able to get an abortion until it progressed to the point of endangering her life, which is partly what’s propelling her to get a tubal now.

“I hadn’t really worried about it before now, just because there were other options if something did go wrong,” she said, referring to in-state abortion access. “But now I’m wanting that security, just because, with my medical issues, I don’t want to risk it.”

Her worry isn’t without cause.

Since the trigger law was reinstated a month ago by the Kentucky Court of Appeals, many providers are already seeing its impact on their ability to deliver care.

According to two Central Kentucky OBGYNs, earlier in August, a patient roughly six weeks into her pregnancy came into their clinic with abdominal pain.

The first OBGYN performed an ultrasound and discovered it was an ectopic pregnancy. Since the patient was stable, she opted to treat her with methotrexate rather than surgery. That medication halts production of rapidly-dividing cells, effectively aborting a fetus.

The first OBGYN sent her patient to the emergency room and called in an order for the drug, administered through an injection. The second OBGYN, working a shift in the emergency room that day, was treating someone else when the patient arrived. A physician’s assistant initially treated the patient, instead. But upon seeing the order for methotrexate, the PA, who didn’t want his name on the order, refused to fill it, both OBGYNs corroborated.

Who’s tasked with decoding KY’s trigger law?

Unlike other states, Kentucky’s trigger law does not cite specific exempted medical conditions, and makes no mention of ectopic pregnancies or miscarriages.

Texas’ official definition of abortion, as outlined in its trigger law, includes exceptions for medical abortions induced to treat both. “An act is not an abortion if the act is done. . . to remove a dead, unborn child whose death was caused by spontaneous abortion, or to remove an ectopic pregnancy,” according to the bill analysis.

Trigger laws in Arkansas and Utah are worded similarly, exempting abortions needed to remove a “dead unborn child” caused by a miscarriage, or the “removal of an ectopic pregnancy.”

Kentucky’s trigger law is word-for-word the same as Louisiana’s. And until earlier this month, Louisiana, like Kentucky, did not explicitly outline medical exceptions for when a doctor can provide an abortion without risking jail time.

After weeks of confusion and demand for clarity from health care providers, the Louisiana Department for Public Health this month released a list of 25 fetal ailments that make a pregnancy “medically futile” and therefore qualify as exceptions under the state’s narrowly-defined ban.

In early July, a Baton Rouge hospital refused an abortion to a pregnant woman whose fetus was missing its skull — an unsurvivable condition called acrania. At the time, acrania was not listed on the state’s “medically futile” list permitting abortion without criminal penalty, so doctors referred the patient to a Florida abortion clinic or advised her to carry the fetus to term. Supporters of the state’s trigger law later criticized the hospital for misinterpreting the law.

This widely-reported case highlights not only the gray area within a trigger law that’s the same as Kentucky’s, but it shows the variability in interpretation by doctors, even with direction from the state.

It’s unclear which state agency is charged with translating the trigger law, since the Cabinet for Health and Family Services said it doesn’t bear responsibility.

When asked last week whether the Department for Public Health had given guidance to health care providers who’ve asked for clarity under the new law, a spokeswoman said there’s no need.

“Each provider should be exercising their clinical judgment and treating patients accordingly,” Cabinet spokeswoman Susan Dunlap said. “DPH does not have a role in this.”

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