House Bill 126 could ramp up risks in doctors’ prenatal care

Some attorneys say doctors’ fear of criminal charges from a potential Missouri abortion law could cause them to endanger patients by delaying care.

Provisions of House Bill 126, which passed in 2019 and would go into effect if Roe v. Wade is overturned, would largely criminalize abortions in the state. Medical professionals who perform an abortion in the event of a medical emergency, either to prevent a patient’s death or irreversibly impair bodily function, could have to prove that medical emergency before a court or face a Class B felony as well as the suspension or removal of their professional license.

Marcia McCormick, a professor at Saint Louis University School of Law, said that this raises the stakes for doctors working with pregnant patients facing crisis.

“Having to make those calls about when something really is an emergency, even if you know it’s eventually going to happen if you’re the doctor, it is really challenging,” McCormick said. “And so the narrowness of that definition of medical emergency is really much more narrow than the current standard, which is that exceptions have to be allowed for the health of the mother at any point in a pregnancy.”

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Attorney Christina Miller runs the Reproductive Family Law Center in Kansas City, which helps patients in five states including Missouri and Oklahoma through the legal process of seeking to give birth via alternatives including in-vitro fertilization and surrogate pregnancy. She said that it would still be possible for doctors to provide care, but it would have caveats.

“Doctors can make arguments based on the standard of care that this is a medical emergency,” Miller said. “My concern about medical emergency versus medical need — that will have to be parsed out by people litigating this.”

She described a case in rural Oklahoma where a surrogate mother was 22 weeks pregnant when she developed a tear in the amniotic sac around the fetus that was leaking fluid.

She was turned away from a hospital, which told her to visit her doctor the next day. That doctor returned her to the emergency room, where she stayed for a week as the hospital replaced the leaking fluids. Hours after being discharged, the patient found out this failed — when she felt the baby’s foot leaving her body as she peed.

Hospitalized once more, she gave birth to the child, who lived a minute over an hour. Miller said that this situation was a medical emergency that left the patient and the baby at risk of infection. And it would not have ended as fraught if healthcare providers had followed the standard of care recommended by the American College of Obstetrics and Gynecology and induced labor during the first ER visit.

“The bigger problem for me is that it has doctors not following the standard of care,” Miller said.

Attorney Tad Eckenrode of Eckenrode-Maupin Attorneys at Law in St. Louis, who represents doctors and other professionals when their licenses are challenged, said that the statutory language leaves a lot up to interpretation on reasonable medical judgment, with a high price for doctors if they get it wrong. Both he and Miller cited the case of a Tennessee nurse who was charged with criminally negligent homicide after she gave a patient the wrong medication by mistake.

Eckenrode said the potential lawsuits from this law are another example of former civil and licensing actions against medical professionals turning into criminal charges around the United States.

“As such, it will take a very brave physician, who likely will have to take the time to seek input and support from other providers to document their concerns, to actually consider a procedure to save a patient’s life,” Eckenrode said via email. “The corollary, of course, is that some female patients may be injured or die because no physician can, or is willing to, reach that conclusion.”

Eckenrode said that person could still end up in court and face liability for not providing proper care.

In the event the law goes into effect, Eckenrode said his practice already recommends doctors to document everything that could inform a decision to perform a procedure at issue, but this becomes more critical for abortion procedures if the stakes are raised to a criminal level.

Miller said that clients she works with, however, will likely be insulated from potential risks because they have the means to hire a fertility team of people that advocates for their care. She said she is more concerned for patients directly working with a single doctor who could choose what might be least risky for the doctor, not the patient.

“Where I’m concerned about this is for people who aren’t going through fertility treatment, who don’t have a team to say, ‘Hey, this isn’t the standard of care,’” Miller said.