ProPublica said it had two stories of women who died after being unable to get an abortion during a miscarriage. This is the second one.
Candace Fails screamed for someone in the Texas hospital to help her pregnant daughter. “Do something,” she pleaded, on the morning of Oct. 29, 2023.
Nevaeh Crain was crying in pain, too weak to walk, blood staining her thighs. Feverish and vomiting the day of her baby shower, the 18-year-old had gone to two different emergency rooms within 12 hours, returning home each time worse than before.
The first hospital diagnosed her with strep throat without investigating her sharp abdominal cramps. At the second, she screened positive for sepsis, a life-threatening and fast-moving reaction to an infection, medical records show. But doctors said her six-month fetus had a heartbeat and that Crain was fine to leave.
Now on Crain’s third hospital visit, an obstetrician insisted on two ultrasounds to “confirm fetal demise,” a nurse wrote, before moving her to intensive care.
By then, more than two hours after her arrival, Crain’s blood pressure had plummeted and a nurse had noted that her lips were “blue and dusky.” Her organs began failing.
Hours later, she was dead.
Fails, who would have seen her daughter turn 20 this Friday, still cannot understand why Crain’s emergency was not treated like an emergency.
But that is what many pregnant women are now facing in states with strict abortion bans, doctors and lawyers have told ProPublica.
“Pregnant women have become essentially untouchables,” said Sara Rosenbaum, a health law and policy professor emerita at George Washington University.
Texas’s abortion ban threatens prison time for interventions that end a fetal heartbeat, whether the pregnancy is wanted or not. It includes exceptions for life-threatening conditions, but still, doctors told ProPublica that confusion and fear about the potential legal repercussions are changing the way their colleagues treat pregnant patients with complications.
In states with abortion bans, such patients are sometimes bounced between hospitals like “hot potatoes,” with health care providers reluctant to participate in treatment that could attract a prosecutor, doctors told ProPublica. In some cases, medical teams are wasting precious time debating legalities and creating documentation, preparing for the possibility that they’ll need to explain their actions to a jury and judge.
Dr. Jodi Abbott, an associate professor of obstetrics and gynecology at Boston University School of Medicine, said patients are left wondering: “Am I being sent home because I really am OK? Or am I being sent home because they’re afraid that the solution to what’s going on with my pregnancy would be ending the pregnancy, and they’re not allowed to do that?”
There is a federal law to prevent emergency room doctors from withholding lifesaving care.
Passed nearly four decades ago, it requires emergency rooms to stabilize patients in medical crises. The Biden administration argues this mandate applies even in cases where an abortion might be necessary.
No state has done more to fight this interpretation than Texas, which has warned doctors that its abortion ban supersedes the administration’s guidance on federal law, and that they can face up to 99 years in prison for violating it.
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Crain is one of at least two pregnant Texas women who died after doctors delayed treating miscarriages, ProPublica found.
Texas Attorney General Ken Paxton has successfully made his state the only one in the country that isn’t required to follow the Biden administration’s efforts to ensure that emergency departments don’t turn away patients like Crain.
After the U.S. Supreme Court overturned the constitutional right to abortion, the administration issued guidance on how states with bans should follow the Emergency Medical Treatment and Labor Act. The federal law requires hospitals that receive funding through Medicare — which is virtually all of them — to stabilize or transfer anyone who arrives in their emergency rooms. That goes for pregnant patients, the guidance argues, even if that means violating state law and providing an abortion.
Paxton responded by filing a lawsuit in 2022, saying the federal guidance “forces hospitals and doctors to commit crimes,” and was an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.”
Part of the battle has centered on who is eligible for abortion. The federal EMTALA guidelines apply when the health of the pregnant patient is in “serious jeopardy.” That’s a wider range of circumstances than the Texas abortion restriction, which only makes exceptions for a “risk of death” or “a serious risk of substantial impairment of a major bodily function.”
The lawsuit worked its way through three layers of federal courts, and each time it was met by judges nominated by former President Donald Trump, whose court appointments were pivotal to overturning Roe v. Wade.
After U.S. District Judge James Wesley Hendrix, a Trump appointee, quickly sided with Texas, Paxton celebrated the triumph over “left-wing bureaucrats in Washington.”
“The decision last night proves what we knew all along,” Paxton added. “The law is on our side.”
This year, the U.S. Court of Appeals for the 5th Circuit upheld the order in a ruling authored by Kurt D. Engelhardt, another judge nominated by Trump.
The Biden administration appealed to the U.S. Supreme Court, urging the justices to make it clear that some emergency abortions are allowed.
Even amid news of preventable deaths related to abortion bans, the Supreme Court declined to do so last month.
Paxton called this “a major victory” for the state’s abortion ban.
He has also made clear that he will bring charges against physicians for performing abortions if he decides that the cases don’t fall within Texas’ narrow medical exceptions.
Last year, he sent a letter threatening to prosecute a doctor who had received court approval to provide an emergency abortion for a Dallas woman. He insisted that the doctor and her patient had not proven how, precisely, the patient’s condition threatened her life.
Many doctors say this kind of message has encouraged doctors to “punt” patients instead of treating them.
Since the abortion bans went into effect, an OB-GYN at a major hospital in San Antonio has seen an uptick in pregnant patients being sent to them from across Southern Texas, as they suffer from complications that could easily be treated close to home.
The well-resourced hospital is perceived to have more institutional support to provide abortions and miscarriage management, the doctor said. Other providers “are transferring those patients to our centers because, frankly, they don’t want to deal with them.”
I’m heartbroken for these women and their families. I’m also furious. And I know there will be more of these stories for as long as this travesty of a law is in effect and the elected officials who put it in place remain in power. You know what to do and why to do it.
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