How Louisiana Doctors Are Quietly Helping Pregnant Patients (and Themselves) Avoid Jail Time

“We can’t tell the patient to be dishonest, but what we can say is…’What you mean is, you’re already having a miscarriage, right?’”

By Lorena O'Neil | November 2, 2022 | 12:00pm

Abortion Politics

How Louisiana Doctors Are Quietly Helping Pregnant Patients (and Themselves) Avoid Jail Time

Jezebel broke the story last week that Louisiana has reported zero legal abortions since August 1, after the state’s near-total ban went into effect.

Of course, that doesn’t mean thousands of pregnant people in the state just stopped needing or having abortions (or any kind of medical treatment that could be construed as an abortion)–doctors and nurses are just having to be a lot more careful in what they say and write down.

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Health care providers in Louisiana are using every tool in their arsenal in an attempt to protect their patients, and themselves, from criminal charges. They’re choosing their words carefully, avoiding putting abortion advice in writing, and charting pregnancy-related care meticulously. The Pelican State’s new abortion ban is one of the strictest in the country—with no exceptions for rape or incest—and providers are trying to give their patients the best care possible, while remaining, technically, within the bounds of the law.

Jezebel spoke with multiple doctors and nurses from Louisiana for this story, all of whom asked that neither they nor their hospitals be named, for fear of putting their jobs in jeopardy. One labor and delivery nurse said that since Dobbs, she and fellow like-minded nurses are trying to guide patients toward using appropriate language that wouldn’t criminalize them. “If someone comes in bleeding, you really can’t tell the difference between a self-managed abortion or a spontaneous one,” the nurse told me. “We can’t tell the patient to be dishonest, but what we can say is, something like, ‘What’s wrong with you? What you mean is, you’re already having a miscarriage, right?”

She continued, “We wouldn’t say, ‘Don’t tell anyone,’ but whether or not someone gets into trouble could depend on what facility they go to, or what nurse they end up getting in triage.”

More than one doctor I spoke to said they’ve changed how they do their “charting,” which is how they record a patient’s clinical data and medical history. An emergency room physician said that since abortion was banned in August, she no longer uses the medical terms “spontaneous abortion,” “missed abortion,” or “inevitable abortion,” even though none of those terms clinically refer to elective abortions.

“Now, I don’t put abortion in my chart at all,” she said, “I chart ‘missed miscarriage’ or ‘inevitable miscarriage’ instead.”

The Louisiana Department of Health does not track miscarriages (fetuses with a gestational age less than 20 weeks)—it only receives data on intrauterine fetal demise (which occurs at 20 weeks or greater).

The ER doctor said that she and her fellow physicians have been told to rely more heavily on obstetricians than before Dobbs. “If it’s a question of a pregnancy going wrong, they want us to involve OB,” she said. “At this point we are criminalizing adverse pregnancy outcomes even if they’re not elective abortions. If women can be charged for bad things happening during their pregnancy, the hospital wants as many credible doctors’ names on the paperwork to avoid liability.” She added that she thinks the obstetricians have “more to fear” than emergency room physicians.

An OB-GYN told me that she’s also changed how carefully she does her charting by adding a lot of details as safety measures for both herself and her patients. “We have had to change how we document early miscarriages to be sure there is no gray area if the patient chooses to undergo medical or surgical treatment for a missed miscarriage,” she told me. “It could look like an elective abortion if not documented thoroughly.”

The doctor said she is also more thorough in her documentation if she has a pregnant patient with a maternal or fetal indication for termination—in other words, if the pregnant patient has a diagnosis that would put her at high risk for maternal mortality or severe organ damage, or if the fetus has a diagnosis that is considered “medically futile” (note: this is not a medical term, it’s one used by legislators in the ban, and it is causing a lot of confusion). She said she has to describe the situation “exactly in the way that the law states it in order to be sure they won’t put me in jail.”

The OB-GYN added that in these situations, her patients don’t always choose to terminate, but she still documents everything in a way in case they decide to. So far, she says her patients have either chosen to continue the pregnancy or traveled elsewhere for abortion care.

“It’s amazing to me — oh God, I wanna tear up when I say this, the number of people still calling that are clueless that abortion is not legal. They’re literally calling for an appointment.”

In August, one of the New Orleans-area hospitals sent out a directive to physicians saying that if they were going to counsel patients on their “pregnancy management options,” they suggested doing so verbally. “If it is written, include other pregnancy resources,” reads the email, obtained by Jezebel. “For your reference, www.ineedana.com and the New Orleans Abortion Fund remain active and are ways patients can find the nearest legal abortion resource.”

Before Roe v. Wade was overturned, patients seeking abortions were referred to one of the three abortion clinics in the state. Kathaleen Pittman is the director of Hope Medical Group in Shreveport, which is currently in the process of raising funds to relocate to a new state. Pittman said she recalls her clinic being called for help when hospitals needed it. “Sometimes the hospital would not be fully equipped, so [a doctor we worked with] would call me and say, ‘Well, I need some supplies,’ and I’d be like ‘Come get what you want,’” she told me.

Now, Pittman and her three other staff members are still answering phones, this time from pregnant people who aren’t aware abortion has been banned in Louisiana. “It’s amazing to me — oh God, I wanna tear up when I say this, the number of people still calling that are clueless that abortion is not legal. They’re literally calling for an appointment.”

Pittman said she tries to give people resources on where to go, but it’s particularly hard when she speaks to people who are pregnant following a sexual assault. “You’re having to send people further afield and trying to maintain some professionalism, when all you want to do is just cry right along with them. That’s difficult.”

In the meantime, Pittman is still providing occasional pregnancy tests and ultrasounds for those who need help with their gestational dating. Pittman said that above all else, she wants to make sure pregnant patients are getting the care and support they need, while protecting their privacy. But she wants to show politicians that just because no abortions are being legally reported doesn’t mean no abortions are happening.

“They see no abortions and think, no problems? Well, yeah, there are problems,” she said. “You’ve got people going to the ER for follow-up.”

And as doctors try to keep themselves and their patients out of jail—not just in Louisiana but across the country—pregnant people continue to be investigated just for speaking about their abortion experiences. Needless to say, it’s a terrifying time both to need an abortion and to be the person who’s needed to provide one.