Kentucky’s abortion ban was triggered when the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that created a constitutional right to abortion. The law immediately banned abortion in the state, with exceptions to prevent the woman’s death or serious impairment of a life-sustaining organ; another law bans abortion after six weeks of pregnancy.
A Louisville judge blocked the law pending resolution of a lawsuit against it, but a Pikeville judge on the Court of Appeals vacated that ruling, and the Supreme Court left it in place until it hears arguments in the case Nov. 15. The Nov. 8 ballot has a referendum that would make the case moot by making the state constitution say it guarantees no right to abortion or funding of it.
The sudden lack of access to abortion care has resulted in hundreds of Kentucky women seeking surgical sterilization, what is often called having your tubes tied or a tubal ligation, Acquisto reports.
Ashley Watson, a 36-year-old from Wilmore, told Acquisto that she decided to seek permanent sterilization because she had severe postpartum depression following each of her daughters’ births.
“My mental health wouldn’t survive another pregnancy,” Watson told Acquisto.
She added, “We live in a very conservative state, and there’s this fear that birth control is going to be the next thing on [legislators’] agenda.” To avoid remaining pregnant against her will, she told Acquisto that permanent sterilization “is the only thing I can do to guarantee that I’m never going to be put in that position.”
Destinee Ott, a 25-year-old Beattyville teacher, told Acquisto that she decided to have her tubes tied because she would be have no option to terminate a pregnancy if her birth control failed.
Acquisto reports that Ott has polycystic ovary syndrome and endometriosis, and that if she gets pregnant, the PCOS creates a high likelihood of an ectopic pregnancy, which is when a fertilized egg implants outside of the uterus, often in a fallopian tube.
“Though an ectopic fetus can have a heartbeat, none are viable,” Acquisto notes. “If not treated early enough, an ectopic will rupture and cause serious medical complications for the pregnant person, even death.” She reports that treatment for an ectopic pregnancy is either a surgical or medical abortion, which means it is regulated by Kentucky’s trigger law.
“An ectopic pregnancy will eventually become life-threatening. But it might not be life-threatening, initially, depending when it’s diagnosed in a pregnancy,” Acquisto writes.
Herein lies the gray area and Otts knows this, she writes: “Under the law, if she were to have an ectopic pregnancy, she worries she wouldn’t reliably be able to get an abortion until it progressed to the point of endangering her life, which is partly what’s propelling her to get a tubal now,” she writes.
“I hadn’t really worried about it before now, just because there were other options if something did go wrong,” Otts told Acquisto, referring to in-state abortion access. “But now I’m wanting that security, just because, with my medical issues, I don’t want to risk it.”
Both women quickly learned that they were just two of hundreds of Kentucky women seeking sterilization in a post-Roe state, Acquisto reports: “It’s a swell in demand that remains two months later, according to seven board-licensed obstetrician-gynecologists at Baptist Health, Lexington Women’s Health, Women’s Care of Lake Cumberland and University of Louisville Health.”
Three of the OB-GYNs spoke with Acquisto on the condition of anonymity, fearing retaliation from their employer, which has demanded they not speak publicly about this topic, she reports.
Doctors are worried too
“The anxiety felt by Kentuckians around the future of abortion care extends to their doctors, too,” Acquisto writes. “Some say legal gray areas are creating challenges in their practices and could have lasting impacts on health care.”
She adds, “Though clinics and hospitals did not have quantifiable data available, Baptist Health, Kentucky’s largest health-care system, said its patient demand within a week of Roe falling was ‘significant’ and ‘notable'” for tubal ligations, vasectomies and other long-term birth-control measures.
The doctors Acquisto interviewed said there has been a shift in who is asking for tubal ligations; before, it was largely women with biological children, but now it is driven by women in their 20s with no children. Now the waiting list for the procedure, in some cases, is now months long.
“Roe was tossed on Friday, June 24. The following Monday, an OB-GYN at Lexington Women’s Health told the Herald-Leader their front desk fielded a staggering 91 requests for tubals,” Acquisto reports. “On July 12, Dr. Lynne Simms said her Baptist Health clinic provided 22 tubal consults,” and said at least five patients asked “what their options would be in the future regarding birth control.”
“In short, women in Kentucky guarding their bodies against the possibility of pregnancy have descended in droves,” Acquisto reports.
A “vaguely worded law”
Acquisto reports that doctors are trying to figure out “how to give medically necessary abortion care under a vaguely worded law, the violation of which could result in a felony charge or jail time.”
“No provider who spoke with the Herald-Leader had a clear understanding of the exact conditions and ailments that count as medical exemptions, but most agreed that an abortion is only legally allowed in the event of a medical emergency,” she writes.
The law says a licensed physician can perform an abortion without risking a Class D felony (punishable by one to five hears in prison) if it’s “necessary, in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”
The law requires the physician to make “reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn human being in a manner consistent with reasonable medical practice.”
But Acquisto writes that obstetrician-gynecologists she interviewed “want to know: what about anomalies that are un-survivable to a fetus, but aren’t a health risk to the mother?”
Such conditions include anencaphaly, in which a fetus never develops parts of its brain or skull, but does not pose a risk to the pregnant person to carry it to term.
“Before Kentucky’s trigger law took effect, the typical treatment route was a palliative induction, or inducing labor early to abort the fetus, which won’t survive outside the womb,” Acquisto reports.” But since no medical risk is posed to the pregnant person, and since the fetus could still have a heartbeat, is abortion in this scenario illegal under the trigger law?”
Or, she asks, “What if one’s water breaks early in a pregnancy — a pre-term pre-labor rupture of membranes — likely fatally limiting fetal development and increasing the risk of severe infection in the pregnant person. Is an abortion lawful only if a severe infection develops, even if the fetus isn’t viable?”
The Kentucky Medical Association told Acquisto that Kentucky’s abortion laws “raises a number of legal questions for Kentucky physicians” and that they are working with their legal experts to analyze them before issuing official guidance.
Meanwhile, a Lexington obstetrician-gynecologist told Acquisto that there is a push to “document the crap out of these discussions,” and to get second and third opinions. She then went on to describe a miscarriage situation where she would have performed a surgical abortion prior to this law, but because of it ordered a second ultrasound to prove beyond a reasonable doubt that the patient needed it.
“I know it’s a miscarriage, but I don’t want to risk anything,” she said. “It’s wasting health-care dollars, but I don’t want a felony charge.”
Acquisto reports that care for a Kentucky woman with an ectopic pregnancy was delayed because a physician assistant in an emergency room refused to fill a called-in order from the patient’s gynecologist for an injection of methotrexate because he didn’t want his name on the order. Methotrexate is a drug used in medical abortions.
Acquisto reports in detail that some other states’ abortion bans cite specific medical conditions that are exempt from them, including ectopic pregnancies and miscarriages; and notes differing interpretations between physicians in states where laws don’t have them such specifics.
In Kentucky, Acquisto reports, it is unclear which state agency is charged with translating or clarifying the trigger law, since the Department for Public Health told her it does not bear that responsibility.
“Each provider should be exercising their clinical judgment and treating patients accordingly,” department spokeswoman Susan Dunlap said. “DPH does not have a role in this.”