A public abortion hearing in Baton Rouge, Louisiana, to debate the list of conditions that qualify a pregnancy as medically futile turned into an emotional open mic event, featuring intimate horror stories by doctors and patients alike.
Katie Darling, who’s currently running for Congress against Steve Scalise and gave birth in her campaign ad, got choked up while sharing her personal experiences at the hearing. “Something I haven’t shared until now is I have been pregnant seven times, and I have two living children,” she said. “I haven’t shared that because it’s very personal and private. We don’t owe the public our most intimate and private moments. But I’m here to share it because it matters right now.”
Darling said she remembers being “terrified” this summer when Roe was overturned. “I’ve had emergencies. I’ve been in ambulances. I was bleeding out on my living room floor not long ago, and I needed to call 911 to get help. When I was pregnant with my son, I was worried that could happen again. And that my doctor wouldn’t know if they could care for me.”
“I am a person whose condition doesn’t have a name,” said Darling. “I’m here to advocate that we throw this list out the door.” She added, “Pregnancy is the condition which qualifies a person for an abortion in consultation with their doctor, based on science.”
After Roe was overturned, a back-and-forth legal battle ensued between the state and abortion providers about Louisiana’s trigger bans, which critics called “unconstitutionally vague.” Nevertheless, the abortion ban went into effect on Aug. 1, and horrifying stories have poured out of the state, including one woman who had to travel 1,400 miles for an abortion despite the fact that her fetus was missing much of its skull.
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A representative for the Louisiana Department of Health told me there have been “zero induced terminations of pregnancy reported to the state” since that date–meaning not one legal and safe reported abortion since the trigger ban went into effect. For context, in June of this year alone, there were 551 abortions reported to the state. Last year, there were 7,444 reported abortions total.
There are no exceptions in Louisiana’s ban for rape and incest and only limited exceptions to save a pregnant patient’s life or when the fetus would be incapable of sustaining life after birth. For the latter exception, the Louisiana Department of Health initially released a list of 24 conditions that would render the fetus “medically futile,” which is not a medical term, but one used by the state’s anti-abortion legislators. The 25th item on the list is a broad exception for other kinds of genetic and chromosomal anomalies.
The rules state that two physicians need to certify that the fetus would be unable to survive birth in order for any of these conditions to be considered legal reasons for an abortion. Multiple doctors today spoke about how onerous this is, particularly in the midst of a physician shortage or in areas of Louisiana that are obstetric deserts.
“I am here to beg for an expansion of this LDH list as well as the addition of legal protections for physicians,” said emergency physician Nina Breakstone, stressing that her OBGYN colleagues are petrified of going to prison for helping people. “The list as it exists has created an atmosphere of terror among my colleagues.”
Breakstone said that it was already nearly impossible to get an abortion in Louisiana and that she doesn’t think the public realizes how late in a pregnancy many of these conditions are diagnosed. “Even if you had a fetus with one of these conditions [on the list], I don’t think you’d be able to get care in Louisiana.”
She added that she knows LDH “cobbled this list together under less than ideal circumstances” because it was required to do so by the trigger ban, but that instead of specific conditions, the list should have broader categories–something echoed by other doctors who spoke today. “This is just a simple request for some sanity in the LDH and in the legislature,” said Breakstone.
Maternal fetal medicine doctor Jane Martin rattled off a list of other conditions missing from the list and said there were hundreds that needed to be added. She said she shouldn’t have to share the intimate details of her patients’ lives with the world. “A pregnancy is considered medically futile as determined by the patient and provider alone. That should be the only list that exists.”
Kaitlyn Joshua spoke about her own miscarriage from a few weeks ago. She said she’d been “massively depressed” after being told the pregnancy was no longer viable and that her baby had stopped growing. When she started bleeding, Joshua, a Black woman, said she had significant trouble receiving care. “I went from hospital to hospital, risking my life … I was told by nurses and practitioners, if I lost enough blood, I should just keep coming back,” said Joshua.
She said the medical staff could “neither quantify nor qualify what that even meant.” Joshua continued, “What level of blood loss would constitute an emergency, when I was already in a lot of pain alone was very difficult for us to understand.” She noted that it seemed like nobody wanted to even have the conversation with her about her miscarriage, nor did they make eye contact with her. Joshua is a mother of a four-year-old daughter and said that while she would love to grow her family in Louisiana, she’s worried it is getting too dangerous. “Legislators were not qualified and are not qualified to speak on my behalf.”
Eleven people spoke, nine of them women, and the majority of the speakers were pro-abortion. The two men who spoke were both anti-abortion; one is the director of a Lafayette crisis pregnancy center, and the other is a respiratory therapist who called the list of exceptions a “hit list” and related abortion to Hitler, death camps and killing fields. The three fervently anti-abortion advocates all think there should be no list at all, because there should be no “medically futile” exceptions whatsoever.
Many speakers shared personal accounts they had experienced, but also talked about their family members experiences with abortion. One woman spoke to the trauma she saw her parents go through when they chose not to abort her sibling, who died days after being born. David McCay, who represents LDH’s legal services and led the hearing, said he has received many more written comments in his email.
The case of Nancy Davis, the woman with a skull-less fetus who had to travel to New York to get an abortion last month, was brought up several times in the hearing. Her fetus’ condition, acrania, was only recently added to the list. There was debate over whether Woman’s Hospital could have legally offered her an abortion at the time she needed it, and a spokesperson for the Baton Rouge hospital said that “even if a specific diagnosis falls under medically futile exceptions… the laws addressing treatment methods are much more complex and seemingly contradictory.”
Basically, even if a pregnant person’s exception is on the “medically futile” list, it doesn’t mean they will have access to care, because hospitals are under no obligation to provide it.
The state already has the highest maternal mortality rate in the country, with Black women disproportionately affected. Before the Dobbs ruling, the majority of abortions were handled by the three clinics in the state, all of which have been forced to relocate since August.
Florida, Georgia and West Virginia’s abortion bans all have “lethal fetal anomaly” as an exception, but the Guttmacher Institute confirmed to Jezebel that no states other than Louisiana has a specific list of conditions. Guttmacher’s state policy expert said Alaska’s legislature once attempted to define “medically necessary” with a list of conditions, but the state court rejected the list and said it was to be determined by a provider.
“Today, the doctors made it very clear that this list is insufficient, but really that any list would be insufficient,” Lift Louisiana’s executive director Michelle Erenberg told Jezebel after the hearing. Reproductive rights attorney Ellie Schilling, who is involved in the lawsuit against the state’s trigger bans, suggested adding broader categories to give physicians and patients more discretion.
“If you think about acrania, one condition being added to the list because of one patient’s specific story, then are we going to go about legislating one tragedy at a time, one person at a time?” said Schilling. “Is that how we’re going to add things to this list of regulations? It’s not feasible.”