he Kentucky laws banning abortion “do not legally permit the standard-of-care treatment for a nonviable pregnancy,” writes Alex Acquisto of the Lexington Herald-Leader. “As a result, doctors must refer patients needing otherwise medically recommended terminations out of state in droves, along with people desiring elective abortions, according to interviews with seven providers across four hospital systems. Though this scenario is increasingly common statewide, it’s one arbiters of the state’s laws have yet to remedy, and one lawmakers are not publicly working to resolve.”
While legislators in the General Assembly don’t seem to be on the case, they have a possible excuse: The state Supreme Court is still trying to decide whether to allow abortions to resume in the state while courts consider a lawsuit challenging the “trigger law” that took effect when the U.S. Supreme Court overturned Roe v. Wade. The law made abortion illegal in Kentucky except in case of threat to the woman’s life. The ruling also reactivated a law banning abortion after detection of a fetal heartbeat, about six weeks into pregnancy, before some women realize they are pregnant.
To illustrate the problem, Acquisto writes about the examples of Amy English of Louisivlle and Leah Martin of Lexington.
At her 20-week ultrasound, English learned that her fetus had acrania, the absence of a skull, which can cause anencephaly, underdevelopment of the brain. “Pregnancies with either of these conditions are nonviable,” Acquisto notes. “Amy’s baby, which they learned was a boy, had both. He would not survive into childhood, likely not beyond a few minutes after birth.”
Before the trigger law, such a condition would normally be treated by early induction of labor, but because the fetus had a heartbeat it couldn’t be aborted. “I don’t know what was more shocking: to find out the baby had anencephaly, or that I would have to go out of state to get this care,” English told Acquisto.
English had two options: Complete the pregancy and have Caesarean section, or have an abortion or preterm induction of labor. “No part of me wanted to be pregnant anymore,” English told Acqusto. “Every flutter and kick he gave felt like a literal gut punch reminder that I would never get to take him home.” A physical therapist, “Her patients at work often asked how far along she was. It seemed emotionally unthinkable to continue subjecting herself to a life where, at any moment, she would be forced to repeat that her growing body was nurturing a baby that wouldn’t live, she said.”
Englsh’s sister, a nurse anesthetist at a hospital in northern Illinois, arranged for an induced labor there. “After driving close to 400 miles, Amy was induced and gave birth to a son she and her husband named Solomon Matthew. He didn’t cry. His heart beat for about two minutes before it stopped,” Acquisto writes.
Martin, 35, learned just before 12 weeks into her pregnancy that “her fetus had triploidy, a rare condition that causes the development of 69 chromosomes per cell instead of the regular 46. It causes not only severe physical deformities, but triploidy stunts development of crucial organs, like the lungs and heart. It means a fetus, if it even survives to birth, will likely not live beyond a few days. What’s more, Leah was also diagnosed with a partial molar pregnancy, which causes atypical cells to grow in the uterus and, as Leah’s doctors told her, could lead to cancer,” Acquisto reports.
“Like Amy’s, a medically necessary abortion under these circumstances would typically take place at a hospital, doctors interviewed for this story said. Leah’s health insurance had already agreed to cover it. It was also the quickest way to help Leah to her end goal: getting pregnant again in order to birth a child that would survive.” But Baptist Health’s legal counsel blocked her doctors from giving her a dilation-and-curettage abortion. (English was also a Baptist Health patient.)
Martin “desperately wanted a baby, but she didn’t want to birth a child into a painful existence,” Acquisto wries. “Already faced with a gutting dilemma, she felt further burdened by having such an intimate choice ripped from her. And she was furious at now being forced to remain pregnant despite there being no chance for survival, despite the risks continuing such a pregnancy posed to her own body.”
Her doctor wrote her: “You’ve been on my thoughts a lot. Words cannot express the dismay I feel right now. I’ve spent my whole adult life learning how to care for mothers in heart-wrenching or dangerous situations like yours, and the politics now make it not only impossible, but to work to take care of patients like they deserve — with compassion and science — in these horrible situations is wrong and immoral.”
Martin got a abortion in Louisville in the brief window created by a Jefferson Circuit Court judge’s injunction against the trigger law. A Court of Appeals judge stayed the injunction pending fiurther action in the lawsuit, which claims a right to abortion in the state constitution. The state Supreme Court took the case but delayed oral arguments until Nov. 15, a week after an election in which voters rejected a proposed constitutional amendment saying the state’s foundational law has no right to abortion.
The court has yet to decide whether to reinstate the injunction. Since Nov. 15, it has gained two new justices, who may rule on the case on the basis of the written pleadings and video of the oral arguments. That could happen as early as this month.
The situtation “has created a legal thicket for health-care institutions,” Acquisto writes. “As a result, the final say on some critical medical decisions affecting pregnant patients is falling not to medical experts, but to hospital attorneys and administrators, who are worried about legality, liability and reputation.” Baptist Health and the hospitals at the University of Kentucky and the University of Louisville were largely unresponsive to Acquisto’s questions about how they handle the issue.