If a pregnant woman is at risk of severe health consequences or death if she carries a pregnancy to term, would Colorado’s proposed ban on later abortions prevent her from having an abortion that is deemed to be medically advisable?
The question is central to understanding the impact of Proposition 115, a November ballot measure that would impose criminal penalties for doctors who perform abortions after 22 weeks of pregnancy in Colorado.
Proponents of the measure are attempting to assure voters that the measure wouldn’t put women’s lives in danger, often pointing out that it would allow abortions that are “immediately required” to save the life of a pregnant patient.
But just as the proposal includes no exceptions for rape, incest, or a lethal fetal diagnosis, it also, as reproductive health advocates have been quick to point out, does not allow abortions for the health of the patient.
The distinction between a narrow exception for a patient’s life and a broader exception for a patient’s health, however, has been lost in arguments from the measure’s proponents, who claim that Prop. 115 doesn’t pose any risk to patients because abortion is never a medical necessity.
Doctors, legal experts, medical research, and women’s firsthand experiences with pregnancy complications, however, paint a very different picture of how Prop. 115 could put pregnant patients’ health at risk and prevent their doctors from exercising their best medical judgment during a crisis.
‘They didn’t even care if I went blind, because I wouldn’t be dead’
Take the experience of Leah Huff, an Iowa woman who traveled to Colorado for an abortion at 24 weeks into a hard-won pregnancy that eventually put her in danger of going blind.
After a long struggle with fertility, Huff became pregnant in 2018, but despite the joyful news of a baby on the way after years of fertility treatments, Huff’s pregnancy was complicated from the start, she told the Colorado Times Recorder.
Huff was immediately considered high-risk due to a rare medical condition she’d been diagnosed with a few years prior: idiopathic intracranial hypertension, or IIH.
IIH is most common in women of reproductive age and affects approximately 1 in 100,000 people, according to the National Organization of Rare Diseases. The condition is characterized by increased pressure inside the skull due to an abundance of cerebrospinal fluid, and causes severe headaches and visual loss that can become permanent if left untreated.
Huff briefly went blind before she began taking a medication called Diamox, one of the precious few treatment options available for people with IIH. While it didn’t completely stop her headaches, it saved her vision, and because of it, she was able to avoid neurosurgery, which is in some cases the only option for avoiding blindness.
But Diamox is a Schedule C drug, meaning there isn’t sufficient evidence to conclude whether it’s safe for use during pregnancy. In consultation with her doctors, who took into account the severity of her condition and some known cases where women who continued taking the medication had healthy pregnancies, Huff kept taking the drug.
But Huff was unlucky. Throughout the pregnancy, her amniotic fluid was consistently lower than normal. Huff wondered if she should go off Diamox–it was a diuretic, and diuretics have been linked to an array of pregnancy complications.
Still, her doctors encouraged her to keep taking her medication due to the potentially severe health consequences of letting her condition go untreated.
Huff made it through the first trimester without miscarrying, but things kept going downhill, and each ultrasound revealed more warning signs that the pregnancy wasn’t developing normally.
The critical moment in Huff’s story came when she went in for her fetal anatomy scan. She was 21 weeks and 3 days pregnant. Something felt off.
“At this point, when I started to take my Diamox, I felt my uterus kind of contracting,” Huff told me. “And I knew that I had low [amniotic] fluid. This isn’t backed up by data or anything; I can just tell you what I physiologically felt. I felt it contracting in me, so I was worried.”
Unfortunately, Huff’s worries were realized when the doctors were unable to see the fetus or determine whether it was healthy. Huff had virtually no amniotic fluid–a major cause for concern.
“I had 72 hours to decide at this point if I wanted to terminate in Iowa, but because I couldn’t see the baby, I refused to terminate,” Huff said. “I wanted more proof.”
Huff and her doctors decided that moving forward with the pregnancy meant going off the medication used to treat her IIH in hopes that her amniotic fluid levels would rise as a result. It worked, and at her 24-week ultrasound, they could finally see the baby.
But it wasn’t good news. There were several fetal anomalies, including severe heart and spinal defects, and Huff’s doctors determined that her pregnancy was incompatible with life. By now, Huff’s eyesight had been waning, and she was in severe physical pain.
She needed an abortion.
Iowa statute states that an abortion after 22 weeks is lawful in cases where it would save the life of the patient, or when the patient’s health would be severely compromised.
But despite the very real threats to Huff’s health, her doctors wouldn’t perform an abortion, and instead referred her to the Boulder Abortion Clinic in Colorado, one of seven remaining states that don’t place restrictions on abortion care later in pregnancy.
“It was very evident that it was rehearsed what they were supposed to tell me; it was almost like there was legal involved,” Huff said. “They didn’t want to intervene even if my health was at stake, and they weren’t going to unless I was at the brink of death. They were going to wait for me to go blind, they didn’t even care if I went blind, because I wouldn’t be dead, I wouldn’t be dying yet.”
An ‘exceedingly narrow’ exception
In contrast to Iowa’s 22-week abortion ban, Colorado’s Prop. 115 specifically does not include an exception for post-22-week abortions in cases where the patient’s health is in danger.
The text of the initiative states:
“Shall there be a change to the Colorado Revised Statutes concerning prohibiting an abortion when the probable gestational age of the fetus is at least twenty-two weeks, and, in connection therewith, making it a misdemeanor punishable by a fine to perform or attempt to perform a prohibited abortion, except when the abortion is immediately required to save the life of the pregnant woman when her life is physically threatened, but not solely by a psychological or emotional condition….”
“This is exceedingly narrow,” said Lizzy Hinkley, Reproductive Rights Policy Counsel for the American Civil Liberties Union (ACLU) of Colorado, in an interview with the Colorado Times Recorder.
Hinkley pointed out three components of what would constitute a legal abortion should Prop. 115 become law: it would have to be an emergency situation; the feared outcome must be death; and the illness, injury, or condition must be a physical emergency, not a psychological one.
“The exception does not apply to a circumstance where continuing the pregnancy could severely, irreparably damage a woman’s health but not kill her,” Hinkley explained.
“If a woman’s life is immediately threatened, the opportunity to help her is really passed,” said Denver area cardiologist James Monaco during a virtual press conference last week organized by the No on 115 campaign.
“This is clearly worded to sound like a protection. It is not. It offers no protection or exception for a mother whose life is at risk,” he said.
Monaco explained that cardiovascular conditions are the most common cause of maternal death, and that many women have cardiac conditions that increase their risk of serious health complications during pregnancy.
Most, but not all, of those patients are able to have safe and healthy pregnancies, Monaco explained.
“Some, however, face unmanageable risks, and develop clear signs that their bodies are not tolerating pregnancy, and for those women and their doctors and their families, it is essential that they have access to all medically appropriate and essential care, which includes abortion,” he said.
Monaco stressed that cardiac risk and stress increases continuously throughout pregnancy, and that in some cases, patients with cardiac conditions who are doing well early in a pregnancy deteriorate later on.
Prop. 115 would not allow such a patient who develops a very high risk of poor health outcomes during pregnancy, but who isn’t yet experiencing a medical emergency, to have a legal abortion, Monaco said.
“If you perform that abortion, does that count? Was her life immediately at risk?” Monaco asks.
In some cases, cutting off access to abortion later in pregnancy could mean delaying potentially life-saving treatment for a separate medical issue, like cancer.
Ximena Rebolledo León, a registered nurse who serves high-risk patients in Telluride, spoke of a pregnant patient who developed thyroid cancer, and was faced with the decision of whether get treatment immediately or continue the pregnancy.
“I cannot possibly account for the variety of factors that come into play when a patient is deciding whether to continue a pregnancy,” she said during the press conference. “Circumstances are so unique across patients, and a one size fits all mandate ignores that reality.”
Dr. Warren Hern, the founder of the Boulder Abortion Clinic, who specializes in performing abortions for patients with complex medical issues late in pregnancy, called the proposition “extremely vague.”
“How do you define what is an immediately required abortion? Nobody can make that decision except for the physician who is taking care of the patient,” he said. “How close does the patient have to be to dying before you can intervene? It’s not clear, and that’s been the main problem with these kinds of laws.”
“The fact is that any woman who is pregnant is at risk of dying from being pregnant,” he continued. “And at what point is she at risk? Well, she’s at risk from the very beginning.”
Indeed, pregnancy is a life-threatening condition in the United States, where the rise of maternal deaths, particularly for women of color, presents a public health catastrophe.
Recent maternal mortality data show that compared with similarly wealthy countries, the U.S. lags far behind when it comes to protecting pregnant people from fatal complications.
What’s more, while the rest of the world is generally on an upward trend toward making pregnancy safer, the maternal mortality rate in the U.S. has doubled over the past two decades.
For Black women, that rate is much higher than for white women. As one researcher put it, Black women living in the nation’s capital of D.C. are nearly twice as likely to die from pregnancy-related complications as women living in war-torn Syria.
Researchers have pointed to a variety of potential contributing factors for the U.S. maternal mortality crisis, including spotty access to health care, a prevalence of untreated chronic conditions, and a rise in cesarean births, which are associated with higher health and safety risks.
A 2017 report from NPR and ProPublica found that a troubling number of hospitals, including those with newborn intensive care units, were seriously unprepared for maternal emergencies, lacking standardized policies or the appropriate clinical skills for preventing maternal deaths. The report documents a stark contrast between advancements in infant mortality and the worsening health outcomes for mothers, and how the specialty of maternal-fetal medicine has drifted toward care of the fetus above all else.
A trove of research over the past few years has linked poor health outcomes for pregnant women and abortion restrictions both in the states and across the world.
For example, a 2019 study published in the American Journal of Preventative Medicine found that maternal deaths rose in states that passed abortion restrictions, including laws that forced Planned Parenthood clinic closures and those that imposed gestational limits on abortion care.
Huff remembers sensing a shift in her medical care after she passed Iowa’s 22-week gestational cutoff.
“After 22 weeks, my health wasn’t mentioned. All of the sudden when they talked about my IIH and all that, I didn’t exist on paper anymore. It was only about the baby,” Huff said. “I felt that I wasn’t even human.”
“It’s scary, and it makes me feel like we’re one step closer to it not being safe to be pregnant in America,” she said.
A ‘chilling effect’ on medical practice
Multiple doctors said that Prop. 115 would sow so much confusion about what constitutes a life-saving abortion that physicians would simply stop offering abortions after 22 weeks altogether should the measure pass.
Monaco called this “a feature, not a flaw,” saying that “the intent is create uncertainty” and “have a chilling effect on access to all abortion, regardless of cause.”
“The intent is to make it so that cases in which there is a difficult decision, in which we know the woman’s life is at increased risk but we don’t know how much, we don’t know exactly when it might happen, which is the case with every high-risk pregnancy, it is to make it so that anyone who is willing to perform a therapeutic abortion is taking that risk,” Monaco said.
“If they think that continuing to provide therapeutic abortion services to women whose lives are at risk could open them up to too much legal risk and impact their ability to help other patients, they will, unfortunately, have to decide to not do that, and that is what has happened in other states,” Monaco said.
Furthermore, Monaco raised issue with the fact that not only is there no standard for determining what constitutes a life-saving abortion, there’s no clarity on who ultimately gets to decide what’s legal.
“How is someone who is not the patient’s doctor going to make that decision?” Monaco said. “A prosecutor, police are going to have to gain access to medical records, so this opens an entire other concern of privacy to the patient in my mind.”
“We know anecdotally that many physicians have given up on giving abortions because they don’t want to get in trouble with one of these crazy laws,” Dr. Hern said. “There are hundreds of thousands of other things that doctors can do besides being caught in the middle of a political debate and face the risk of losing their medical license for performing an abortion at a time when some political operative decided is not a good time.”
“It’s obvious on its face that this will have a chilling effect on medical practice,” he said.
Incidents where women with life-threatening pregnancy complications were denied abortions at Catholic hospitals, which follow directives from the U.S. Conference of Catholic Bishops that prohibit various reproductive health services, provide another example of how even abortion bans with exceptions for patients’ health can have a chilling effect on doctors’ willingness to provide abortion care during a crisis.
The directives include an exception, albeit a narrow one, to protect the pregnant patient’s health, stating that “operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.”
Still, the exception hasn’t ensured that pregnant women receive potentially life-saving abortions when they need them.
A 2016 report from the Guardian revealed that over a period of 17 months, one Catholic hospital in Michigan risked the lives of five pregnant women who were miscarrying because doctors refused to induce labor until a fetal heartbeat was no longer detected, even though the women showed signs of infection, and in one case developed sepsis.
The practice of withholding medical intervention during a miscarriage subjects women to the risk of death, infertility, and other long-term health issues. Still, doctors erred on the side of the religious directives, forcing women to undergo dangerous prolonged miscarriages rather than providing timely and potentially life-saving medical care.
The hospital admitted that it “did not have a clear standard for determining when a woman’s life was in jeopardy,” according to the Guardian report.
The fact that Prop. 115 omits an exception for cases where a pregnant woman receives a fatal fetal diagnosis presents yet another medical concern.
Rhonda Pohlman was 21 weeks and a few days pregnant when she got bad news from her doctor. After weeks of tests, doctors determined that the fetal anomaly that had been detected a few weeks earlier in her pregnancy was deadly serious. Due to a severe neurological defect, the fetus was incompatible with life, and would likely die in utero.
Taking into account her own health, the wellbeing of her daughter and her family, and the grim prognosis she’d just received, Pohlman decided to have an abortion, she told the Colorado Times Recorder.
Pohlman said she’s unable to bear the thought of what she would have gone through if she were forced to carry the pregnancy to term due to an abortion ban.
“That added stress of not being able to make that decision of what my husband and I felt was right for our family, it’s hard to imagine, to be honest,” she said. “The stress and the anguish of knowing how bad it was and not being able to do anything about it would have killed me.”
Pohlman, who is a pharmacist in Boulder, said she also would have been highly concerned for her health.
“I would have been on pins and needles checking my temperature,” Pohlman said. “Being in the medical field and knowing what the signs of sepsis are, I would have been so neurotic every day, thinking, ‘Is he still there? Is he still with me? Is my body rejecting this, what’s going on?’ I mean, if you don’t catch it… people die from sepsis.”
It’s true that in the case of fetal demise, continuing a pregnancy can result in adverse health outcomes.
A 2015 study published in the Journal of Obstetrics and Gynecology found a high rate of maternal complications associated with the delivery of a stillbirth fetus, including a high rate of deadly complications.
“The pregnancy at that point only represents a risk to the woman’s life,” Hern said. “Not treating that is medieval medicine. It’s indefensible.”
“In the old days, you didn’t do anything,” Hern said. “One of the things that can happen with that is the woman can develop a clotting problem, and the fetus begins to disintegrate. The clotting mechanisms become completely disrupted and she can bleed to death and have terrible catastrophic problems and die because of that situation, and so the treatment for intrauterine fetal death is to enter the uterus as quickly as possible, and the techniques that I use are extremely safe.”
At a press conference in February, proponents of Prop. 115 argued that women in these circumstances are better off having miscarriages or stillbirths, or delivering a baby that will soon die, than having an abortion late in pregnancy.
“Miscarriage is a natural process that happens,” said Lauren Castillo, a spokesperson for the campaign, called Due Date Too Late. “With perinatal hospice, it’s giving them a healing way to really have that journey of a late-term miscarriage, and that’s what we’re advocating for women who may receive a fatal fetal diagnosis where the baby might not live after the birth.”
Asked for her response to those who think she should have had to carry her unviable pregnancy to term, Pohlman emphasized the importance of the doctor-patient relationship.
“What year did you graduate from medical school? Where are you getting your information? There are medical reasons why this should happen and unless you are a doctor and it is your patient, you should not be making that decision,” Pohlman said. “Every pregnancy is different, every situation is different, so to put a ban on something that’s not a one size fits all thing and shouldn’t be political anyway… it’s just so frustrating.”
Proponents Say It’s “Preposterous” to Believe Abortion Is Necessary
Responding to an email from the Colorado Times Recorder asking for the campaign’s reasons for not including a broader health exception and whether they have concerns about the absence of a clear standard for determining what constitutes a life-threatening emergency, Dr. Thomas Perille, medical advisor to the Due Date Too Late campaign and president of Democrats for Life of Colorado, argued that abortion is never appropriate when the patient’s life or health is at risk.
“OB/GYNS across the country where abortion after 22 weeks is prohibited routinely deal with pregnancy related health issues without needing abortion,” said Perille, a retired internal medicine specialist in the Denver area. “It is preposterous to believe that it is necessary in Colorado.”
“OB/GYN physicians are able to assess a woman’s pregnancy related health issue and deliver the baby if, in their judgement, that is what is necessary to preserve the life and health of a mother,” Perille continued. “This happens every day across America. Prop 115 will not interfere in those professional decisions.”
Perille’s statement is consistent with those of other Prop. 115 proponents who claim that abortion is not a necessary medical tool in situations where a pregnant patient’s life or health is at risk.
In an Instagram post, another group advocating for the initiative called “End Birthday Abortions” similarly claimed that abortions don’t happen for medical reasons, but instead happen “for convenience.”
On Twitter, local anti-abortion activist Jeff Hunt, who heads the conservative evangelical think-tank the Centennial Institute, denied that there are no exceptions for the health of the pregnant patient.
Last month, the campaign released a letter of endorsement from 130 healthcare professionals stating that “we do not believe that any of the challenges a woman faces after 22 weeks of pregnancy necessitate the senseless destruction of a human life.”
The campaign opposing Prop. 115, on the other hand, has received the endorsements from an array of major medical societies, including the American College of Obstetricians and Gynecologists, the Association of Women’s Health and Neonatal Nurses, the Colorado Academy of Family Physicians, the National Institute for Reproductive Health (NIRH), the Society for Maternal-Fetal Medicine, and the Colorado Medical Society.
Hern pushed back against the assertion that abortion is never necessary to save a woman’s life, recounting specific instances in his career when he’s helped women through life-threatening emergencies.
“You can’t find a fragment of truth in anything they say,” Hern said. “There are many many specific kinds of instances where what we do saves women’s lives. This needs to be available for women who need it.”
When Huff thinks about the consequences of Prop. 115, she goes back to the 72 hours she had to decide whether to get an abortion while it was still legal in Iowa, or to get as much information as she could about her pregnancy so she could make a more informed choice.
“I didn’t think about my eyesight, I didn’t think about my pain,” Huff said. “I just thought about him and I chose my child.”
“My state punished me for doing that,” Huff said. “That’s exactly what this will do in Colorado to women.”
Despite everything, Huff said she’s proud of her decision to let her options for legal abortion in Iowa expire as she held onto hope and sought the answers she needed.
“I’m not a mom, but I really tried to become a mom, and I don’t even know if I’ll ever be a mom,” Huff said, her voice breaking. “But during those 72 hours, I was a mother, and I made the most motherly decision that any person could make, and I fought for my child.”
“I find it really sad that women aren’t going to be able to choose being a mother first.”