Hospital Lawyers Are Getting the Risk Calculus Backwards

In 2022, the Supreme Court overturned Roe and allowed states to begin legislating abortion bans throughout gestation. The result has been a minefield of abortion bans that physicians are required to navigate in real time at the bedside. And now, it feels like every few weeks there is a new headline describing yet again how hospital lawyers told a physician not to provide emergency abortion care and a patient was harmed.

In September 2021, before Roe had even been overturned, Josseli Barnica, a 28 year old mother in Texas, developed a second trimester miscarriage that required an emergency abortion. Even though physicians knew what needed to happen, hospital leadership held that compliance with local abortion bans, which included Texas SB8, required that she was admitted to the hospital and observed until the fetus lost cardiac activity, at which point she could receive a surgical procedure to remove the miscarriage. By that point, Josseli was critically ill from sepsis and died from her miscarriage, leaving behind her husband and toddler.

In August 2022, shortly after the overturn of Roe, Mylissa Farmer was 18 weeks pregnant when she presented to a Missouri emergency department for PPROM. Despite her physicians’ medical advice, hospital administrators refused to allow the physicians to provide her the emergency abortion she needed for fear of violating Missouri’s abortion ban. She ultimately traveled to Illinois to receive the care that she needed.

In February 2023, Jaci Statton was diagnosed in Oklahoma with a partial molar pregnancy and was denied emergency abortion care because there was still a fetal heartbeat and she was not yet bleeding to death.

Kyliegh Thurman and Kelsie Norris-De La Cruz are two Texas women who were refused treatment for tubal ectopic pregnancies for fear of violating Texas’s abortion ban—in February 2023 and 2024 respectively.

In 2024, Emily Waldorf was denied her emergency abortion for PPROM in Arkansas despite pleas to hospital leadership and the Governor. She was ultimately transferred for care to the University of Kansas, the same hospital that previously denied Mylissa Farmer an emergency abortion.

The pattern continues even after states have tried to clarify their laws. In October 2024 — more than a year after Texas passed the Life of the Mother Act to give physicians clearer guidance — Lynn Callaway, a 40-year-old woman in the Austin area, was sent home from two Austin-area emergency rooms while actively miscarrying and developing a uterine infection. Two emergency departments denied her care for her miscarriage at the guidance of hospital administrators. When she finally saw her OB/GYN, she was diagnosed with retained products of conception and endometritis–outcomes that could have been prevented with timely initial care.

But beyond patient harm, there is the issue that physicians are being forced to bear the consequences of this bad advice. There have been multiple EMTALA violations, civil lawsuits, and even adverse actions against medical licenses in these cases. What these cases show is that hospital attorneys are repeatedly advising physicians not to provide care out of fear of violating local abortion bans, but that they do so in ignorance of the vast legal risk that comes with denying patients care. While there have been multiple legal actions against physicians who have failed to provide emergency abortion care, there have been NO charges of violating abortion bans for physicians practicing in hospitals since Dobbs. That is why Professor Rachel Rebouché and I wrote our most recent op-ed aimed at hospital lawyers. In this op-ed we explain to hospital counsel why they are miscalculating the legal risk when they advise physicians not to provide patients care–and why they need to do better. In the meantime physicians are in an impossible position of navigating laws, seeking counsel, and bearing the risk of bad legal advice when in reality physicians have trained their whole career to provide evidence-based, life-saving care and know exactly what patients need.