Ana Brennan, J.D.

Vice-President

Society of St. Sebastian   |  15 July 2024

Since the U.S. Supreme returned the legality of abortion back to the States with the Dobbs decision, a strange phenomenon has manifested itself in the medical community. Over the past two years, many doctors, especially OBGYNs, have lost the ability to understand, let alone apply medical standards. Nowhere is this phenomenon more evident than in Idaho.

 

Due to a trigger ban, Idaho’s near-complete ban on abortion went into effect, banning abortion in all cases except to prevent the death of the mother and reported rape and incest.[i] Almost immediately, some doctors in Idaho started complaining that the statue was not clear enough for a doctor to determine if any given situation warranted an abortion. The law requires, “[t]he physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”[ii] Why are some doctors in Idaho unable to apply their “good faith medical judgement?” What were they applying before Dobbs? Many doctors in Idaho were so incapable of understanding Idaho law that they claimed treatments for ectopic pregnancies and miscarriages were prohibited. In other words, many medical professionals were willing to jeopardize the lives of women because they disagreed politically with the law. Fortunately, the Idaho legislature stepped in and amended the law clarifying that treatments for these conditions were not considered abortions. 

 

Once some in the medical community could no longer fear-monger over ectopic pregnancies and miscarriages, they pivoted to the lack of a “health” exception in the law. For anyone who has been involved in the pro-life movement for any length of time, we know “health” means any reason under the sun. It is true that the permissive definition of “health” in Doe v. Bolton[iii] is no longer the law of the land, but it is the definition doctors have been applying for fifty years. Unless otherwise defined, there is no reason to believe doctors would not continue to apply the Doe definition.

 

In addition to doctors, the federal government was not happy with Idaho law protecting unborn babies. The Biden Administration sued Idaho under the Emergency Medical Treatment and Labor Act (EMTALA), which requires a Medicare-funded hospital to provide treatment to those experiencing medical emergencies. The Act defines a medical emergency as, “acute symptoms . . . such that the absence of immediate medical attention could reasonably be expected to jeopardize an individual’s health or result in serious impairment to bodily functions or dysfunction to bodily organs or parts.”[iv]

 

Oddly, the same medical community that was unable to comprehend when to save a woman’s life under Idaho law, has no problem applying their medical judgement under EMTALA. So, “good faith medical judgment and based on the facts known to the physician at the time” under Idaho law is too vague and confusing to the point doctors threaten to deny care to pregnant women, but “…could reasonably be expected to jeopardize…” under the federal EMTALA, is perfectly clear.

 

Many in the medical profession have shown their hand. Both the Idaho law and EMTALA require a doctor to use their best medical judgment to determine what care is needed. The reason some doctors understand one law but not the other has nothing to do with medicine but everything to do with politics. If they like a law, one that allows them to abort at will, they understand it. If they do not like a law, one that protects the unborn, they play dumb and jeopardize the lives of pregnant women. This is not mere hyperbole. The real world impact caused by this prevalent pro-abortion mentality has had a devastating impact on women and their unborn children.  

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In Idaho, it has now become common practice to medivac pregnant woman suffering from preterm premature rupture of membranes, PPROM, out of state to Oregon, Washington, or Utah for abortions. PPROM is a condition where the water breaks before the 37th week of pregnancy. Contrary to what doctors in the United States would have us believe, water breaking does not necessarily mean the end of a pregnancy, nor is abortion the only treatment in this situation. According to the Royal College of Obstetricians and Gynaecologists in the U.K.:

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Pregnant women whose waters break early (from 24 weeks) but don’t go into labour [sic] should be             given the choice to continue with the pregnancy until 37 weeks, as long as there are no signs of          infection or complications, say new guidelines.[v]

 

Many times PPROM occurs before the 24th week, but still very close to viability. In the United States the earliest surviving premature baby was born at 21 weeks.[vi] Doctors will argue that every patient is different, which is true except they do not treat pregnant woman based on their individual situations.

 

Water breaks early = abortion, that is it.

 

Abortion is the default treatment regardless. Doctors are so committed to imposing abortion in every PPROM circumstance that an Idaho woman was flown to Utah to have an abortion that was not part of her treatment plan, and whether she consented to the abortion is also questionable.[vii] Doctors will argue that abortion is necessary due to the complications associated with PPROM. But the experience of the wife of our board member David Frank detailed in the most recent Journal of Bioethics in Law and Culture Quarterly, would suggest otherwise.[viii] Whether pregnant women are living in Massachusetts or Idaho, they are being denied care and bullied into having abortions.

 

This is what fifty years of legalized abortion has wrought. The demise of Roe v. Wade is finally shedding light on how abortion has created horrific failures in healthcare for pregnant women.  

 

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[i] Idaho Code 18-622

[ii] Idaho Code 18-622(2)(a)(i)

[iii] Doe v. Bolton, 410 U.S. 179 (1973)

[iv] Overview of the Emergency Medical Treatment and Active Labor Act (EMTALA) and Emergency Abortion Services, Congressional Research Service, March 21, 2023.

[v] Elizabeth Mahase, Pregnant women whose waters break can opt to continue to 37 weeks, says RCOG, BMJ 2019;365:4266 (Published 18 June 2019) https://doi.org/10.1136/bmj.l4266. 

[vi] Hannah Echols, UAB Hospital delivers record-breaking premature baby, UAB News, November 10, 2021, https://www.uab.edu/news/health/item/12427-uab-hospital-delivers-record-breaking-premature-baby.

[vii] Nancy Flanders, Mom flown from Idaho to Utah for pregnancy complications wakes to learn they dismembered her son July 10, 2024,

https://www.liveaction.org/news/mom-flown-idaho-utah-wakes-dismembered-son/.

[viii] David Franks, Ph.D., Prudence as Attentive Love and the Sophistry of Abortion Abolitionism, Journal of Bioethics in Law and Culture (Spring 2024), https://www.societyofstsebastian.org/_files/ugd/f49069_730128c5dc3541bbb47270dbbf8a235a.pdf.

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