In the days following the Supreme Court’s decision to overturn Roe v. Wade, a Louisiana doctor prescribed a medication called Cytotec to make the insertion of an IUD, the most effective form of birth control, less painful.

The medication has several uses and is often prescribed for stomach ulcers. It’s also the brand name for misoprostol, the second part of a two-drug cocktail used to terminate a pregnancy.

Walgreens called the physician, Dr. Alexandra Weiss Band, to ask if the prescription was for an abortion, according to an affidavit filed July 5 in a New Orleans Civil District Court case challenging Louisiana’s trigger law. When she told them it was for an IUD insertion, the pharmacist refused to give out the medication anyway.

Louisiana Abortion Clinic

A patient seeking an abortion at Hope Medical Group for Women in Shreveport, La., checks her watch as she waits for a consultation with a health care professional, Wednesday, July 6, 2022. She said she already has two children "and it's just not a good time for us." Nearly two weeks after the 1973 Roe vs Wade decision was overturned, the abortion clinic is still providing abortions. But the Hope Medical Group for Women faces a looming court case on Friday that could spell an end to that. (AP Photo/Ted Jackson) ORG XMIT: TXBS107 ORG XMIT: BAT2207071119100859

As Louisiana’s trigger law took effect, then was blocked by a temporary injunction, only to be put back into effect again on Friday, it was not only women at abortion clinics who faced confusion and differences in care. Several emergency room doctors and OB-GYNs described how the ban, even when temporarily lifted, was already affecting patient care. That's despite the fact that the trigger law has exceptions for certain medical situations and protects the use of birth control. 

“The response from Walgreens was that it would still not be filling the prescription because they could not be sure we weren’t prescribing this for an abortion, and so they will no longer dispense the drug,” Band wrote in her affidavit. “For obvious reasons, this is interfering with the best, medically appropriate care I can give to my patients … .”

Walgreens did not respond to questions about whether the medication was denied, but said in a statement that they were “prepared to adhere” to new laws and that “any prescription medications, including pregnancy-ending medications, are dispensed in compliance with applicable laws.”

Dr. Rebekah Gee, an OB-GYN, former Louisiana secretary of health and CEO of Nest Health, said the trigger laws will have far-reaching effects beyond people seeking elective abortions. 

"I'm most concerned about the chilling effect this will have on the routine provision of well-woman care," said Gee. "People estimate 10 to 30% of pregnancies end in miscarriage; it’s very common. At what point during that miscarriage is it safe to make that call and intervene to protect the life and health of that mother?”

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Dr. Rebekah Gee, former Louisiana secretary of health, said there will be a "chilling effect" on women's care, particularly in managing miscarriages, as a result of the state's trigger ban. 

Although the trigger laws allow for saving the life of the mother and in cases in which the fetus or embryo is “medically futile,” the penalties are severe enough that physicians may feel the need to wait to provide treatment until the patient’s life is clearly on the line. The criminal penalty in Louisiana’s most recent trigger law for abortion after 15 weeks is up to 15 years of hard labor in prison and up to a $200,000 fine.

“These are the kinds of consequences that people who try to kill people who are fully grown humans and commit felonies get,” said Gee. “To have a physician who spent his or her whole career trying to take care of others be at risk of this for doing what they feel is routine practice is frightening for many.”

The treatment for a number of conditions that result in a loss of a pregnancy or a threat to a woman’s life, in medical terms, is abortion.

More transfers, fewer doctors willing to provide necessary abortions

Dr. Cecilia Gambala, an assistant professor of obstetrics and gynecology at Tulane University School of Medicine, said Friday she is worried she’ll start seeing more transfers from hospitals who don’t want to treat women whose pregnancies are no longer viable because they are afraid of legal repercussions.

Already, she’s seen a patient who was 16 weeks pregnant with a ruptured membrane sent from a rural hospital in North Louisiana. A ruptured membrane occurs in up to 10% of pregnancies, often causing premature labor.

But at 16 weeks, a fetus cannot survive. A ruptured membrane drains the amniotic fluid surrounding the fetus, meaning the lungs can’t develop. The situation can turn dangerous for the mother, often resulting in life-threatening infection.

The rural hospital wasn’t comfortable performing the typical treatment, which may include surgical abortion. In this situation, the fetus often still has a heartbeat, but is not developed enough to live outside of the womb.

For some physicians, that’s enough to make the call that the mother’s life is in danger and the fetus will not survive, allowing an exception in Louisiana’s ban. But some doctors won’t want to get involved, said Gambala.

“If another hospital doesn’t feel comfortable, we can’t force them,” said Gambala.

This time, the patient was stable enough to make the trip down to south Louisiana. Gambala hopes the same won’t happen if the patient is septic and needs immediate medical attention.

“I would hate to see someone that’s really sick. That’s a sad day,” said Gambala, calling for clearer guidelines regarding second trimester ruptured membranes. “That’s going to be a catastrophe, because our state will see poor maternal outcomes.”

Charting defensively

The challenge to Louisiana’s law has moved to Baton Rouge, where plaintiffs will argue that the law is vague. But if it is allowed to stand as written, it will take more lawsuits establishing precedent to determine what safe harbors are for physicians in the state who will be subject to more scrutiny.

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Louisiana Attorney General Jeff Landry speaks to the media in New Orleans, La. Friday, July 8, 2022. (Photo by Max Becherer, The Times-Picayune)

“The problem physicians are in is that even their good faith reading of what the statute allows them to do is not necessarily going to align with what a prosecutor is going to believe,” said Keith Werhan, a professor emeritus at Tulane School of Law and a constitutional law expert. "The unfortunate outcome here might very well be that doctors are not going to provide the standard of care they think is appropriate because of concerns of criminal liability."

Already, more doctors are “charting defensively” to document every step of their decision-making process. Some are having other doctors sign off that a dangerous or failed pregnancy requiring a late-stage abortion known as an evacuation is necessary.

“We are going to have to document very clearly and very carefully,” said Dr. Jennifer Avegno, an emergency room physician and director of the New Orleans Health Department. “Many providers believe there is a target on their back and that in this climate, as has happened in other states, there is a desire to make an example of providers someone thinks might be violating the law.”

When physicians told lawmakers it would be hard to find two OB-GYNs in rural areas to sign off on a necessary abortion for “medically futile” reasons, lawmakers said they could use an internist. To Avegno, that demonstrated how little legislators understand about the practice of medicine.

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Dr. Jennifer Avegno in 2022. 

“There is no internist in the state of Louisiana that would ever, ever put their name on a document that says this baby is medically futile, because they’re not trained in fetal-maternal medicine,” said Avegno. “So we’re going to have to learn to be very, very clear.”

‘Pregnancy is just a slow-rolling disaster’

Dr. Nina Breakstone, an emergency room doctor on the West Bank, is often one of the first people a pregnant person might see when there are warning signs something is wrong.

“We see vaginal bleeding 5 or 10 times a shift,” said Breakstone. She can name multiple scenarios that are now confusing for physicians.

“If a woman’s got a half chance of dying from continuing on this pregnancy, is she allowed to have an abortion?” asked Breakstone. “If she’s hemorrhaging with an intrauterine pregnancy and the solution for that medically is a D&C and therefore an abortion, is she allowed to have that procedure? Or are we supposed to watch and wait while she bleeds to death?”

There is no one-size-fits-all approach to pregnancy, and doctors have said it would be difficult to write a law that would take every situation into account.

“Everyone thinks pregnancy is a yes or a no,” said Breakstone, pointing out that historically pregnancy has been extremely dangerous, and it’s only with modern treatments and monitoring that fewer women die. “Pregnancy is just a slow-rolling disaster.”

“Medically futile”

The law spells out an exception for “medically futile” fetuses, but that is not a term that means anything to doctors.

“Medically futile is not a medical term,” said a New Orleans-area OB-GYN, who did not want to use her name after Attorney General Jeff Landry wrote a letter threatening to prosecute doctors who continued to provide abortions deemed outside of the scope of exceptions in the latest law. “It is a legal term that is made up by legislators.”

Many genetic or developmental conditions might clearly be medically futile, such as a fetus developing without a brain or lungs. But other conditions, such as trisomy 18, are murkier under Louisiana’s new law.

“For trisomy 18, 90% of those children die within a year of birth,” said the doctor. “Most of them die within days. That is not, in Louisiana, considered a medically futile pregnancy. But I think most patients would consider that a medically futile pregnancy.”

Before, those parents had a choice. They could continue with the pregnancy if they wished. They could go to an abortion clinic if they decided to terminate it right away. Or they might see their regular doctor once they miscarried, as is often the case with trisomy 18.

“I’ve seen it happen both ways,” said the doctor. “I think the important part is their choice.”

It’s not clear what will happen next in the lawsuit that has moved to Baton Rouge or if the new judge will issue another temporary restraining order reinstating abortions in Louisiana. Most legal experts acknowledge that abortion in the state will eventually be a thing of the past. But for those that operate in the many gray areas of pregnancy, more clarity is needed, physicians say.

Until then, “I remind myself I’m not a criminal,” said Gambala, the physician who treated the patient sent from North Louisiana.

As she waits for the law to shake out over the next weeks to months to years, she and other colleagues are facing a whiplash of changing legal framework.

“We’re going to wake up thinking, ‘Can I do that today or can I not?’" she said.

Emily Woodruff covers public health for The Times-Picayune | The Advocate as a Report For America corps member. 

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