In some states, doctors weigh ‘ruinous’ litigation against proper care for women who have miscarriages
By Elizabeth Cohen, Danielle Herman and John Bonifield, CNN
When Marlena Stell had a miscarriage, she says she begged her doctor for help but instead was forced to walk around for at least two weeks with fetal remains inside her because of strict anti-abortion laws.
Stell, who was 9½ weeks pregnant at the time, said she was “blindsided” when her doctor showed her an ultrasound image showing the fetus was no longer alive, and then refused to do the standard surgery to remove the fetal remains.
“Why is this so complicated to just get care when it’s obvious to the doctor and me looking at the screen that this is not a viable pregnancy?” she told CNN.
The answer lies in fear: The same surgical procedure used to remove a dead fetus is also used to remove a living fetus, and doctors in states with strict anti-abortion laws worry they’ll be prosecuted for performing an abortion when they were actually providing miscarriage care.
“Doctors can’t just rely on the fact that they’re right,” said Dr. Sarah Prager, co-author of an early pregnancy loss practice bulletin for the American College of Obstetricians and Gynecologists. “They could still potentially be sued multiple times and be on the hook for a lot of money.”
Stell had her miscarriage in Texas in September, just a few weeks after a strict anti-abortion law went into effect. Since then, in the wake of last month’s US Supreme Court decision to overturn Roe v. Wade, more than a dozen other states have sought to enforce abortion bans or very restrictive policies, according to the Guttmacher Institute, an abortion rights advocacy research group.
Those laws will have “an enormous chilling effect” on doctors performing miscarriage surgeries even when doctors “are confident that what they’re doing is within the letter of the law,” said Steve Vladeck, a professor at the University of Texas School of Law and a CNN contributor.
What happened to Stell, he said, “is going to be the norm going forward” in those states.
A couple’s dream turns into a nightmare
Stell, 42, founder and CEO of beauty company Makeup Geek, had a miscarriage shortly after marrying Anuradha De Silva in 2018 in Washington state. She had a surgery known as a D&C — the full name is dilation and curettage — to remove the fetal remains.
“They were caring. They were there for me, asking me emotionally, how was I doing?” she said.
Stell got pregnant again, and in April 2020, gave birth to her daughter, Adelina. About a year later, they moved to Houston to be closer to extended family. A few months after that, they found out she was pregnant again, and an ultrasound at 7½ weeks showed that the pregnancy was going well.
But at an ultrasound two weeks later, Stell received the terrible news – and she was alone because of Covid-19 restrictions.
“She said, ‘There is no heartbeat. There is no viable pregnancy,’ ” Stell remembers.
Stell said the doctor advised her to go home and pass the fetal remains naturally. She thought back to her miscarriage three years before in Washington and asked the doctor for a D&C, but the doctor declined.
“She said, ‘Well, because of the new law that’s passed, you’re going to have to get another ultrasound for me to be able to even do anything for you,’ ” Stell said.
She said her doctor didn’t advise her on where to go for a second ultrasound, so she was left to find one on her own.
“I’m trying to grieve, I’m processing, but at the same time, I’m trying to find places to get me in,” she said.
She found an imaging center, its walls covered with pictures of smiling babies.
“The technician was like, ‘Oh, how far along are you? Are you excited?’ and things like that, and I didn’t even know what to say, because it’s like, ‘I’m here because I already know I lost the baby. This isn’t a happy occasion for me. I’m doing this because I’m required to,’ ” Stell said.
Hearing for the second time that the fetus had died was “gut-wrenching.”
“It was bad enough hearing it the first time,” she said.
Stell arranged for the ultrasound results to be sent to her obstetrician. She said that for five days, she called the office to see if her doctor would perform the D&C now that the fetal death had been confirmed by a second ultrasound, but she said the doctor still wouldn’t do the surgery.
By this time, Stell was in such pain that it had become difficult to walk. She said her doctor offered her a prescription for mifepristone and misoprostol, drugs used for miscarriages and abortions, but Stell preferred surgery.
“I don’t want to see this happen. I don’t want to be alone at home without a doctor,” she said.
In its practice bulletin, the American College of Obstetricians and Gynecologists emphasizes the importance of considering patient preference for the three miscarriage treatment options: miscarrying naturally; taking the pills; or having a D&C.
About two weeks after her original ultrasound showing the fetus was no longer alive, Stell found an abortion clinic to do a third ultrasound and perform the D&C. Like the other patients, she had a safety escort because of protestors outside the clinic.
“As I was walking into the clinic, there were people with signs yelling at me that I was a baby killer,” she said. “Seeing that was another just emotional blow because I wanted this baby, and (to) be told I’m a baby killer when it’s something that was out of my control, was humiliating and made me angry.”
A few weeks later, she posted a YouTube video in an effort to help women who might find themselves in the same situation.
“I get so angry that I was treated this way because of laws that were passed by men who have never been pregnant and never will be,” she said in the video.
Medical consequences of delayed miscarriage care
While she searched for care, Stell was worried about getting an infection from the dead tissue inside her, which doctors say is a reasonable fear.
“All kinds of bad things can happen,” said Dr. Lillian Schapiro, an obstetrician-gynecologist who’s practiced for more than 30 years in Atlanta. “She can develop an infection that can make her sterile and never be able to have children again.”
If a dead fetus stays in the uterus for too long, it can get even worse, Schapiro said, causing a disorder called disseminated intravascular coagulation.
“Fetal parts break down and get into the mother’s [blood] circulation and can actually cause multi-organ failure and death,” she said.
According to the practice bulletin from the American College of Obstetricians and Gynecologists, surgery “results in faster and more predictable complete evacuation” of fetal remains compared with letting the miscarriage happen naturally or using mifepristone and misoprostol.
Pitting citizens against citizens
Texas Right to Life has heard stories like this one and says it’s all a big “misunderstanding.”
The group says doctors have been misinformed, and that while the Texas anti-abortion law, known as SB 8, doesn’t define the word “abortion,” another Texas statute says “an act is not an abortion if the act is done with the intent to remove a dead, unborn child whose death was caused by” a miscarriage.
Doctors say they do understand the law – but that it’s not enough to protect them.
Texas and other states allow citizens to sue doctors they suspect have performed an abortion. They’re incentivized to file such suits because they can win money – in Texas, for example, if the citizen wins, the doctor has to pay them at least $10,000.
“The Texas law pits citizens against citizens,” said Vladeck, the University of Texas legal scholar. “Even worse, I think what it does is, it encourages citizens to spy on each other.”
If the citizen is wrong — if the court finds, for example, that the doctor performed a surgery for a miscarriage and not an abortion — the doctor still has to pay their own legal fees, as Texas law specifically forbids doctors from recouping fees from plaintiffs.
“Even for those providers who are confident that what they’re doing is within the letter of the law, they face the specter of potentially ruinous litigation. They can’t stop it. They can’t avoid it. They can’t pre-empt it,” Vladeck said.
All it would take to cause the doctor ruin is a citizen who is confused about the difference between an abortion and a miscarriage, or someone who is out for money or someone who has a vendetta against the doctor or the patient.
“Physicians may be apprehensive about a situation where a woman has a miscarriage and let’s say she has an angry partner and they try to charge the physicians with aiding an abortion,” said Dr. Leah Tatum, a spokeswoman for the Texas chapter of the American College of Obstetricians and Gynecologists.
Tatum says she and her practice partners don’t hesitate to perform surgeries for women who’ve experienced miscarriages, but they work for a large clinic with strong legal support.
“In my practice, we have lawyers on hand to help us with these decisions, and we feel pretty well-protected, but I’m sad to hear that some physicians feel their hands are tied, and I think it’s just going to get worse,” Tatum said.
Trying again in a different state?
As much as she and her husband dream of having a little brother or sister for Adelina, Stell says she is not trying to get pregnant right now.
“I know I’m high-risk and there is a chance that I can miscarry again,” she said. “I’m worried about getting infected, have something happen to me, and then my daughter’s left without her mom.”
That’s why she and her husband are discussing whether to leave Texas.
On the one hand, they moved there just over a year ago, and Adelina has her grandmother and aunts and uncles in Texas. On the other hand, they want to have more children, and at age 42, Stell doesn’t have a lot of time.
While the couple considers their next move, Stell says she’s speaking up because she knows that women in other states might be forced to go through what she went through.
“I don’t want other women to feel alone,” she said.
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CNN’s Neeraj Patel contributed to this report.
