OB-GYNs weigh in on a post-Roe Wisconsin
Last week’s U.S. Supreme Court ruling overturning Roe v. Wade could trigger the return of the state’s 173-year-old abortion ban. Gov. Tony Evers authorized Attorney General Josh Kaul to challenge the law this week, and Republican legislative leaders have vowed to defend it.
The 1849 state law makes it a felony to provide an abortion except to save the life of the mother.
Dr. Kristin Lyerly, legislative chair for the American College of Obstetricians and Gynecologists District VI, which covers the upper Midwest, said the exception for the life of the mother has created a “great deal of confusion for physicians as we try to use our established medical knowledge to care for our patients within the context of the antiquated and likely unenforceable law.”
“The exception for life of the mother is inadequate because, although we are well-trained to determine when a life is at risk, we now need to know how sick is sick enough in the eyes of the law,” she said.
The ban doesn’t have exceptions for cases of rape or incest.
And it doesn’t allow the procedure in cases of life-threatening birth defects like anencephaly, where the brain is not developing, said Dr. Amy Domeyer-Klenske, incoming section chair and current legislative chair for the Wisconsin Section of the American College of Obstetricians and Gynecologists
“Historically, we have been able to allow those patients to choose if they wanted to continue the pregnancy or not,” Domeyer-Klenske said. “Many patients that I’ve had who have thought that they would never end a pregnancy made that difficult choice after finding out.”
Those options aren’t include in the law because fetal diagnosis and ultrasound didn’t exist then, Domeyer-Klenske said.
“Medical diagnosis has advanced beyond what anyone in 1849, I expect, ever imagined it would,” she said.
Edited excerpts from a Wisconsin Health News interview with Domeyer-Klenske and Lyerly are below.
WHN: What impact are you expecting in the state due to the decision in Dobbs v. Jackson Women’s Health Organization?
Dr. Amy Domeyer-Klenske: We know from history in this country and other countries that restricting access to abortion increases risks of maternal morbidity and mortality. And that’s scary as a person that provides care to patients that are pregnant. I don’t want to see pregnant patients suffer and potentially die when we have evidence-based healthcare that can save them, if they so choose. In a pre-Dobbs situation, patients were able to make choices about their own healthcare related to continuing a pregnancy or not in their individual circumstances. So a patient who has severe heart disease for which pregnancy would cause that to get even worse. Pregnancy on any person causes extra strain on the heart. And on patients that already have severe heart disease, that can be life-threatening. Prior to the Dobbs decision, these patients were counseled by our high-risk obstetricians, who are experts in this field, and able to make the choice for themselves based on their own medical information. The problem with this 1849 law is it doesn’t clarify how sick a patient has to get or is the threat of being sick enough for us to be able to offer, again, evidence-based healthcare, which is abortion, to these patients.
Dr. Kristin Lyerly: The Dobbs decision has forced us to stop performing abortions in Wisconsin, while we await clarification on whether the 1849 law is enforceable. So although abortion access was already severely restricted here in Wisconsin – there were only four clinics providing access to abortion before Dobbs – now we have no clinics providing access to abortion.
Amy took it even a step further by explaining that this isn’t actually about abortion. It is about the continuum of pregnancy care, including management of high-risk pregnancies and miscarriage management. We feel now that our hands are tied and we are unable to take adequate care of our patients.
WHN: What have you seen so far?
KL: It’s only been a few days, but already I’ve heard from my colleagues who don’t feel that they have the guidance and support to be able to manage complicated pregnancy situations, including ectopic pregnancies, which are pregnancies implanted outside of the uterus and are the number one reason that women die in early pregnancy. Previable, premature rupture of membranes is another common problem that we see, and that I’ve already heard, where people will present at 17 weeks of pregnancy with their water broken. Typically, we can offer them a termination of pregnancy, so they don’t have to worry about their lives being at risk due to severe sepsis. But now, we can’t offer that option. And our patients are fearful. Physicians are paralyzed and fearful and frustrated. It doesn’t serve physicians, patients, families or our communities.
ADK: I would say in that particular example, the caveat is actually we don’t really know, right? So the law states that you have to have the physician performing the procedure or two other physicians determine that her life is at risk. But someone, in that example, who comes in at 17 weeks, so before pregnancy can survive outside of the womb, before that’s even possible, that mom is at risk or that patient is at risk for getting an infection if she continues to remain pregnant. And prior to this Dobbs decision, that patient had a choice, to wait and see if they went into labor, see if they got sick, or to choose to end their pregnancy. Now it’s unclear. Is that breaking their water enough that their life is at risk if they continue the pregnancy? Do we have to wait until they’re in an ICU? What is that line? And we don’t really know.
And the scary thing as doctors is the way that we’re going to find out that line is drawn, my guess would be, is because one of our colleagues would be criminalized. Doctors who care for patients, who do your pap smears, who talk to you about when you want to be pregnant and just are partners with patients throughout their whole reproductive lives are the ones that are threatened with jail time and huge fines for trying to make that call about where the line is. And I think that should be scary for anyone who cares about patients that became pregnant or even who care about their regular old OB-GYN.
KL: Or for yourself. Think about the impact of people who recognize that they have health problems and that their doctors are not able to care for them in the most evidence-based, satisfactory way because legislators are standing in the way of the patient-physician relationship.
WHN: What policy changes would you like to see?
KL: We would like to see the 1849 law repealed and we would like to see preservation of the patient-physician relationship codified in law. This is something that is not a political issue. All of these things are healthcare issues, and we need to be able to trust our patients, trust the experts, in order to provide the best possible care.
WHN: Attorney General Josh Kaul has said he won’t use his office’s resources to enforce and investigate under the ban. District attorneys in Milwaukee and Dane counties have suggested they won’t enforce the law. Does that give any comfort around performing the procedure?
ADK: I don’t think so. Don’t get me wrong. I very much appreciate the stance. Again, we are your doctors who are doing pap smears and all these other things. We are not felons, right? So I appreciate that Attorney General Kaul is supportive of seeking out sort of dangerous criminals in our state and not trying to check in on gynecology offices and how we’re caring for folks in the state. But, unfortunately, these also have statute of limitations. Different people may be coming in and out of office. Other counties have the potential to make different decisions. And so whilst we are appreciative of the support, it doesn’t change until we have more clarity about the enforceability of the 1849 law.
KL: I couldn’t agree more. Our careers are at stake here for providing standard of care medicine. This doesn’t happen in any other branch of medicine. But for us, we see it every single day. Why is women’s health so politicized? This is completely unnecessary. This is about legislative interference in the patient-provider relationship, and it needs to stop. Politicians who can’t explain to me why an ectopic pregnancy is dangerous or why anencephaly is a devastating diagnosis are simply not capable of dictating how we should manage our patients.
WHN: Are there changes you’d like to see to facilitate working across state lines? How big of an offset are clinics in Illinois and Minnesota going to be for the effects of this decision in Wisconsin?
KL: It’ll help. Many of us have obtained licenses in other states. I personally will be helping out in Minnesota by providing telemedicine abortions. Some of our other providers from Madison and Milwaukee will be traveling to Illinois. So facilitating licensure, expediting licensure between states will be helpful.
The other states are expecting a totally different situation. As they’re bracing for the influx of patients, they are trying to figure out how to get enough staff on board. We’re experiencing a historic staffing crisis. So where do you find the staff? It’s not just about the provider. How do you find the facility that people are going to be able to access?
Most importantly for the people of Wisconsin, how do we get our patients there? If you look at the demographics of people who are receiving abortion services, these are often people who are struggling financially and socially with support. They can’t take time off of work. They’re moms who have other kids who need to be taken care of. They are people from typically underrepresented communities like the LGBT community and the BIPOC community. They don’t have the types of resources that they need to be able to access these procedures so much further away, and an additional barrier crossing state lines and the additional funding that is required for them to be able get the care that they deserve. So lots and lots of barriers that we are trying to figure out how to overcome.
WHN: Do you expect to see an increase in medication abortions in the state?
KL: We can’t perform any sort of abortion here in Wisconsin. There are ways that people can access medications online. And I think we’re not going to go back to the coat hangers and the back alley abortions. I mean, those things will happen. But I think they’ll be rare. I think what we’ll see in 2022 is people will Google and they’ll look for solutions. And they will find access to self-manage abortions, whether it be medication abortion or menstrual regulation with someone who will help them perform that procedure.
As a provider, I like to take care of my patients and make sure that they have safe evidence-based care, that all of their questions are answered, and that they’re treated well, physically, emotionally and mentally. So I worry about the fallout from self-managed abortions. But it’s also accessible and we know that people will turn to those options.
ADK: In Wisconsin, we are prohibited from providing medication abortion. When we think about will they increase in our state, we are not allowed, the person that’s right up the road or … the clinics that were providing this before maybe counties away, the folks that are experts in our state are not able to do that anymore. So like Dr. Lyerly said, patients are going to have to sort of figure this out themselves, which as being someone who finds it important to make sure that I can help guide patients through their care to ensure they’re doing that safely, I’m not necessarily able to do that in the same way that I was before because people don’t have the access here in local communities to ensure that they’re managing their care in a safe way.
WHN: What impact will the ban have on providing care for miscarriage?
ADK: Care for miscarriage is very similar actually to abortion care. For instance, the medical treatment that we provide for miscarriage, the best, most evidence-based treatment, is a two-step regimen: mifepristone, which is the same medication that is used for abortion, followed by misoprostol. And already, prior to the Dobbs decision, it has been mandatory that I am only able to provide mifepristone, that first medication, to a patient by them coming to my clinic and me physically watching them take that pill. I have had patients with miscarriages over a weekend. Maybe they were diagnosed with their miscarriage on a Friday and too devastated by that loss to be able to make the choice about how they wanted to manage care. They called in on Saturday, when I was covering labor and delivery. And I had to tell them, ‘Hey, the best treatment for you to make it most likely that you are going to be able to successfully manage a miscarriage with medication, which is what your goal is, is not accessible to you on the weekends, because you can’t go to a pharmacy and pick this medication up.’ We can’t trust our patients to do that, apparently. And so that patient then had to choose a less effective treatment, already before the Dobbs decision happened.
Now, I would worry that, and I’ve read in the news, that there’s been some talk about, well, ‘Gosh, should we ban this medication?’ Do we want patients to have the most effective care for miscarriages? Because if the answer is yes, then we need to make sure that these treatments are available to patients and accessible to them, not requiring them to physically go to a doctor’s office to take a medication which we know is safe.
KL: In Wisconsin, this is the case. In other states, we can mail this medication to patients. That’s how safe it is.
ADK: And many clinics, I think, because of the association of this medication with abortion don’t even offer the best treatment, the most evidence-based treatment for miscarriage. So you know, I just think about like, well, gosh, what about in cancer care if somebody said, ‘Well, we know this is the best treatment, but we’re not going to use that. We’re going to use one that’s less effective because of – ‘ I don’t know why. And even prior to the Dobbs decision, that was common practice. And I fear that it’s going to get even harder to reassure people that we can use the most effective medication for helping patients pass their miscarriage. I fear that that’s going to get harder because of the politics surrounding a medication that is known to be safe.
KD: I’d also like to mention that the medical name for a miscarriage is a spontaneous abortion. So I’ve heard a number of people who are concerned that they’re not going to be able to have treatment at all for this abortion if they didn’t know they were having an abortion. There’s a lot of confusion about the terminology that I think is creating even more fear and concern amongst Wisconsinites. We’ve got to address a lot of that misinformation.
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