Highly restrictive abortion laws that recently passed in Louisiana have sparked confusion that may have caused a woman to be denied an abortion for her nonviable pregnancy — despite the fact that, even under the draconian new legislation, the procedure should have been permitted.
The pregnant woman, Nancy Davis, told local news station WAFB that her fetus had been diagnosed with acrania, a fatal condition in which the skull fails to develop during gestation. Most fetuses with acrania die before birth; those that are born alive tend to survive only a few hours or up to a few weeks.
“It was an abnormal ultrasound, and they noticed the top of the baby’s head was missing and the skull was missing," she told the station. (Davis did not immediately respond to a request for comment from BuzzFeed News.)
After she learned of the grim prognosis, Davis decided to have an abortion. But the Baton Rouge Woman's Hospital would not perform the procedure, she said, telling her it would violate newly codified state law. Davis said she was considering traveling to Florida or North Carolina for an abortion — but at 13 weeks pregnant as of Monday, and with abortion only permitted in those states up to 15 and 20 weeks, respectively, she had little time to spare.
"Basically they said I had to carry my baby to bury my baby," Davis later said at an Aug. 26 news conference with civil rights attorney Ben Crump. "This is not fair to me and it should not happen to any other woman."
She said she still plans to get an abortion out-of-state, according to NBC News.
After the Supreme Court overturned Roe v. Wade in June, Louisiana lawmakers moved to ban abortion statewide. On Friday, following months of legal challenges, the Louisiana Supreme Court upheld the ban, confirming it as law.
The Louisiana abortion ban does not make exceptions for rape or incest, but does permit the termination of a fetus with a condition "incompatible with sustaining life after birth." Earlier this month, the Louisiana Department of Health released a list of 24 specific conditions under which abortion would be permitted — plus a loosely defined 25th, for instances of a "profound and irremediable congenital or chromosomal anomaly existing in the unborn child that is incompatible with sustaining life after birth in reasonable medical judgment as certified by two physicians that are licensed to practice in the State of Louisiana."
This final item on the list should have permitted the hospital to perform an abortion for Davis, health department spokesperson Michelle McCalope confirmed in a statement to BuzzFeed News.
"This is an evolving document, and [the Louisiana Department of Health] has always said that the list would not be able to encompass every possible diagnosis that would meet the definition of 'medically futile,'" McCalope said. "That is why the emergency rule does — and the final rule will — provide for physician certification of other conditions that would allow for termination."
A finalized list of conditions will include acrania, McCalope added.
State Sen. Katrina Jackson, an anti-abortion Democrat who sponsored the bill that made abortion illegal, confirmed to WAFB that Davis should have been permitted to terminate her pregnancy under the law, explaining that the final listed condition is meant as "a catch-all list of what two physicians consider to be a medically futile pregnancy."
"This woman is not seeking an abortion. ... This woman is seeking a medical procedure for a pregnancy that is not viable outside of the womb," Jackson said, though the procedure she described is, in fact, an abortion.
A spokesperson for Baton Rouge Woman's Hospital told BuzzFeed News in a statement that they could not comment on specific patient information, but said a "medically futile diagnosis" is "extremely complex."
"Each patient is unique. In the absence of additional guidance, we look at each patient’s individual circumstances and how to remain in compliance with all current state laws to the best of our ability," spokesperson Caroline Isemann said. "While we understand that the specific diagnosis you reference would fall under medically futile exceptions provided by LDH, the laws addressing treatment methods are much more complex and seemingly contradictory.
"Our team has been working diligently to gain clarity on what type of treatment and care we can provide to our patients with medically futile diagnoses while remaining in compliance with all state laws."
Louisiana is just one of the many US states that have passed laws banning abortion since Roe v. Wade was overturned — and it's not the only place where a lack of clarity in the legislation has put pregnant people at risk.
In June, a 10-year-old who became pregnant after being raped had to travel from Ohio to Indiana for an abortion. Ohio Attorney General Dave Yost claimed she legally would have been able to get an abortion in her home state, but the law does not make that clear and largely leaves it up to doctors' discretion.
Murkily defined laws such as these can deter healthcare workers from performing abortions due to the risk of criminal charges they may face as a result.
"We are hearing from our doctors on the ground at all times of day and night," Molly Meegan, chief legal officer for the American College of Obstetricians and Gynecologists, told NPR. "They are scared, they are in an impossible situation, and they don't know how to define laws that are happening by the minute."
This post has been updated with additional comments from Davis at an Aug. 26 press conference.