Why providers say abortion ban exceptions continue to cause confusion

TALLAHASSEE, Fla. — When Dr. Rachel Humphrey went to medical school, she says she never imagined caring for her patients could land her in prison. These days, that isn’t out of the realm of possibility.

“I’ve got to be careful because I’m taking care of moms that have life-threatening conditions,” Humphrey says. “I’ve got to make sure that I do not run afoul of this law.”

As of last month, Florida bans most abortions after six weeks. That law includes an exception that allows an abortion later in a pregnancy if it’s needed to save “a major bodily function,” or the life of the pregnant person — other than for mental health reasons. And, doctors who participate in an abortion, other than what’s allowed by law, could face felony criminal charges.

Many doctors say the law isn’t clear and with such steep penalties, Humphrey says it’s creating a chilling effect.

“Which, unfortunately, means that physicians are choosing to keep themselves safe over helping moms,” Humphrey says.

Humphrey says an exemption to protect a pregnant person’s life makes sense on the surface, but that it means the state has ascribed her and her colleagues a “superhuman ability to predict outcomes that we don’t necessarily have that ability to predict.”

The Florida Agency for Health Care Administration issued a set of temporary emergency rules, in an attempt, officials say, to clear up confusion.

The rules list three conditions that could put a pregnant person’s life at risk: premature rupture of membranes, ectopic pregnancy and molar pregnancy. The rules say termination of a pregnancy for those conditions is not considered, or reported as, an abortion. Some doctors are questioning what that means for conditions not covered by the emergency rules and what happens when the rules expire. Humphrey says it’s just made things more confusing.

“Here we are with layer upon layer of rules and layer upon layer of government intervention, which is not resulting in better clarity or better care,” Humphrey says.

When do Florida’s exceptions apply?

Humphrey says a woman under her care had survived a heart attack not long before becoming pregnant and that conditions common in pregnancy, like hypertension and bleeding, could pose a threat to the patient’s life. But Humphrey says she cannot say how great that risk is, and even if she could, it's unclear what the risk threshold is for Florida’s exceptions to apply.

“Let’s say that this patient who’s had heart attacks actually has children at home” and has a great fear of dying because her mother died in her mid-40s, Humphrey says. “Is it right to say politicians know better in any specific circumstance and this patient has to take risks?”

It’s a concern that’s risen to Democratic leaders at the highest level, like Vice President Kamala Harris. She spoke in Jacksonville when Florida’s six-week abortion ban took effect at the beginning of May. Harris says the confusion doctors are facing is putting patients in danger.

“Since Roe was overturned, I have met women who were refused care during a miscarriage,” Harris said. “ I met a woman who was turned away from an emergency room and it was only when she developed sepsis that she received care.”

Opponents argue concerns over confusion are a political talking point

But some abortion opponents say confusion about the life of the mother exception is caused by statements like Harris’. Kelsey Pritchard, with the group Susan B. Anthony Pro-Life America, says that's the reason doctors and patients are afraid. “I wish we could all just come to the agreement that it is not okay to put women’s lives in danger for political reasons,” she says.

The Florida Agency for Health Care Administration declined a request for an interview, but in a post on social media, Secretary Jason Weida wrote that clarification through the emergency rules was needed because abortion access advocates are “lying for political gain.”

Pritchard agrees.

“It’s pretty clear when you listen to any Democrat talk about the issue of abortion why it’s needed,” Pritchard says. “Unfortunately it’s because they’ve been relying on this false talking point that women will die if you don’t vote the way they want you to vote — or if you put in place a heartbeat law.”

The question of how laws protect the lives and health of pregnant people is also in front of the U.S. Supreme Court. President Biden’s administration says a federal law that requires doctors to stabilize patients applies to abortion, even if the procedure is barred by state law. Many Republican-led states, starting with Idaho, have pushed back.

Potentially millions of voters will have the chance to weigh in on abortion access in November, including in Florida where a proposed state constitutional amendment could codify the right to abortion access up to viability. It’s something Humphrey hopes will resonate with voters across the state.

“If there’s one thing Floridians agree on, it is keeping the government off of our bodies,” Humphrey says.

The proposed amendment would need approval from 60% of voters to pass.