I'm curious to know much more about *why* hospitals are refusing to clarify their policies.
I'm quite convinced it has nothing to do with any pro-choice advocacy for overturning these messy laws altogether.
I'm quite convinced it has almost everything to do with how accountants carry liability on the books. Because these post Dobbs laws carry *criminal* liability (more here: https://www.kff.org/womens-health-policy/criminal-penalties-for-physicians-in-state-abortion-bans/) and this liability is carried solely by physicians by default in most states, unless a hospital network puts forward a policy they don't need to carry that liability on their books. And because it's *criminal* liability if they *do* want to create policies and take on some of that liability, they can't easily carry an insurance policy that lets them mitigate the risk & potential cost.
Bonus: many of these hospitals are part of for profit networks / owned by private equity. That means that *legally* they must protect their shareholders interest. Taking on unnecessary potential financial burdens is almost certainly something these corporate legal teams oppose on the grounds of running contrary to shareholder interest, opening up additional legal liability.
I'll dig some up - but highly recommend talking to an accountant who has worked for a hospital / hospital network!
To clarify as well: if a hospital or provider violates EMTALA and is found guilty that's covered by their existing insurance. Violating one of these anti-abortion state laws post Dobbs is not.
1) Your example of Freeman Health Systems which provided a detailed legal memo and a promise to defend providers would have an impact on their accounting ledger (as a contingent liability).
2) A decision tree policy that spells out what actions constitutes the healthcare systems' judgment of permissible cases in the absence of a law that clearly spells out the same (which it can't, because pregnancy is too complicated to spell out every case) or legal case history (which doesn't currently exist) opens the hospital and their governing body (board) to criminal liability for aiding in (potentially) "criminal" abortions. Those potential legal defense costs would also be carried on the books as a contingent liability.
Most of these state laws are written in a way where only the offending physician is, in the absence of a hospital policy informing their actions, liable.
I think, it's the criminal component that is the risky part. It is not simply malpractice (surgery on the wrong side, childbirth complications, honest mistakes).
What insurer would want to sell an insurance policy covering doctors performing D&C procedures and mifeprestone? It's the free market responding to an unprofitable and legally murky minefield.
Almost all policies include "Criminal Act Exclusions" that exclude coverage for damages or legal defense arising from alleged criminal conduct. They don't even need to get specific, it's already baked in.
I came on here to say something similar. Malpractice insurance is held individually by physicians and does not cover crimal activity. I think it's the felony component of abortion restriction, along with the lack of a national guideline (like from ACOG), that makes it difficult for physicians and hospitals to ease into with clarity.
Medical providers would need to start with an actual, concrete, consistent definition of "high-risk pregnancy" or "high-risk delivery" before being able to define "emergency." Risk of what, precisely, spelled out, and high compared to what? If the medical community can't agree on basic terms and classifications for obstetric care, how can they be expected to determine what is an emergency in the first place and what is not, let alone determine what counts as an emergency under time pressure?
Good point to quantify definitions and user needs. However, unfortunately do we define medicine as a science or an art? There's potentially a lot of diagnoses that doctors makes that aren't 100% supported by data and therefore IMO the SD video just present an additional hassle factor to physicians. The hospitals in each state or perhaps the national AMA or OBGYN association should come together (pro choice and pro life) and provide a national policy and definition to treat pregancy just like all other medical treatment and care. For instance in cardiovascular diseases. There's a rubric of care and treatment that informs all physicians that start with the basics and go from there, without the intention (from the women or the physician) of deliberately getting an abortion. The law, i think, is written from the perspective, as if ALL pregnant women see their OBGYN with the goal to get an abortion. And that is not accurrate. If the care and treatment recommends an abortion in order to save the mothers life then so be it.
If the prolife organizations are willing to sacrifice the pregnant women's life in order to prevent an abortion of any sort from taking place, then they should own up to it in their communications.
The leaders in the antiabortion movement all hate women and want us to die. Why should I help them conceal their intention to kill as many women as possible by clarifying bad laws? You made these laws. You wanted this result. You fix it by yourself. I’m not interested in solving a problem you caused for you.
It was other women who bound the feet of Chinese girls. It was other women who cut their daughter’s genitals off to make them more ‘marriagable.’ It is still other women who tell their daughters to stay married to men who beat them. There’s a really good reason the enforcers in the Republic of Gilead were women and not men. And yes, I AM comparing the staff of those places to the Aunts in Gilead. They are exactly the same.
There are many women who despise their own gender. Leah’s debate with Helen Andrews was indicative of that, but to compare all the staff at crisis pregnancy centers to the aunts in The Handmaid’s Tale is an unfair generalization.
I don't think people are trying to "kill as many women as possible," but it was primarily women who taught many of us, in youth, that we should be prepared to die for our babies. In school and after mass, women spoke to us, for instance, about how they were forgoing cancer treatment "for life." Just because you're a woman doesn't mean you affirm women's right to life.
It sounds to me like you are speaking out of hurt and have had bad experiences with bad men (and bad women). I’m a very sorry for that. I can think of multiple men in my life who have seriously inconvenienced themselves for me and other women.
Would you compare that at all to men being encouraged to give up their lives for faith and family, for the call often given to men to sacrifice themselves in faith communities? It is, of course worth mentioning, circumstances requiring men to put their lives on the line are increasingly few and far between
The sacrifices men make are insignificant and always have been, and when they have died, it’s because of the actions of OTHER MEN. There has never been a single man in all of human history who even mildly inconvenienced himself for any woman.
Really insightful framing of the implementaiton gap. The metaphor of the 'last mile' perfectly captures how legal text alone cant translate into actionable protocols without institutional commitment. I've watched this play out in other sectors where regulatory ambiguity becomes a shield for risk-averse decision makers, and the outcome is always the same: frontline practitioners stuck between vague rules and real consequences.
There are, and they’re working to write bans that leave plenty of room for hospitals to act (as in the South Dakota video). The pro-life groups think the hospitals refuse to take yes for an answer, and won’t say what kind of exemption they could trust.
One pro-choice doctor who wanted to improve her state’s ban (that she opposes) couple not recruit pro-choice groups to sign on since it was their policy to not support anything short of repeal.
When I worked closely in this space there was a lot of tension between wanting to implement adequate emergency protocols and a fear that doing so would concede something essential about abortion rights as you point out here - “advocating for clearer life of the mother exemptions undermines the movement as a whole—since it “creates a false hierarchy of who is deserving” of an abortion.“
I’m not sure if you know of the Regulatory Assistance for Abortion Providers team housed out of Resources for Abortion Delivery but they are attempting to navigate these tensions and advise pro choice hospital ObGyn and abortion providers.
I'm curious to know much more about *why* hospitals are refusing to clarify their policies.
I'm quite convinced it has nothing to do with any pro-choice advocacy for overturning these messy laws altogether.
I'm quite convinced it has almost everything to do with how accountants carry liability on the books. Because these post Dobbs laws carry *criminal* liability (more here: https://www.kff.org/womens-health-policy/criminal-penalties-for-physicians-in-state-abortion-bans/) and this liability is carried solely by physicians by default in most states, unless a hospital network puts forward a policy they don't need to carry that liability on their books. And because it's *criminal* liability if they *do* want to create policies and take on some of that liability, they can't easily carry an insurance policy that lets them mitigate the risk & potential cost.
Bonus: many of these hospitals are part of for profit networks / owned by private equity. That means that *legally* they must protect their shareholders interest. Taking on unnecessary potential financial burdens is almost certainly something these corporate legal teams oppose on the grounds of running contrary to shareholder interest, opening up additional legal liability.
Can you expand a bit / link to more sources about the accounting rules for liability?
I'll dig some up - but highly recommend talking to an accountant who has worked for a hospital / hospital network!
To clarify as well: if a hospital or provider violates EMTALA and is found guilty that's covered by their existing insurance. Violating one of these anti-abortion state laws post Dobbs is not.
I’m most curious why refusing to provide guidance would help them with financial risk.
Sure!
1) Your example of Freeman Health Systems which provided a detailed legal memo and a promise to defend providers would have an impact on their accounting ledger (as a contingent liability).
2) A decision tree policy that spells out what actions constitutes the healthcare systems' judgment of permissible cases in the absence of a law that clearly spells out the same (which it can't, because pregnancy is too complicated to spell out every case) or legal case history (which doesn't currently exist) opens the hospital and their governing body (board) to criminal liability for aiding in (potentially) "criminal" abortions. Those potential legal defense costs would also be carried on the books as a contingent liability.
Most of these state laws are written in a way where only the offending physician is, in the absence of a hospital policy informing their actions, liable.
I think, it's the criminal component that is the risky part. It is not simply malpractice (surgery on the wrong side, childbirth complications, honest mistakes).
What insurer would want to sell an insurance policy covering doctors performing D&C procedures and mifeprestone? It's the free market responding to an unprofitable and legally murky minefield.
Almost all policies include "Criminal Act Exclusions" that exclude coverage for damages or legal defense arising from alleged criminal conduct. They don't even need to get specific, it's already baked in.
I came on here to say something similar. Malpractice insurance is held individually by physicians and does not cover crimal activity. I think it's the felony component of abortion restriction, along with the lack of a national guideline (like from ACOG), that makes it difficult for physicians and hospitals to ease into with clarity.
Medical providers would need to start with an actual, concrete, consistent definition of "high-risk pregnancy" or "high-risk delivery" before being able to define "emergency." Risk of what, precisely, spelled out, and high compared to what? If the medical community can't agree on basic terms and classifications for obstetric care, how can they be expected to determine what is an emergency in the first place and what is not, let alone determine what counts as an emergency under time pressure?
Good point to quantify definitions and user needs. However, unfortunately do we define medicine as a science or an art? There's potentially a lot of diagnoses that doctors makes that aren't 100% supported by data and therefore IMO the SD video just present an additional hassle factor to physicians. The hospitals in each state or perhaps the national AMA or OBGYN association should come together (pro choice and pro life) and provide a national policy and definition to treat pregancy just like all other medical treatment and care. For instance in cardiovascular diseases. There's a rubric of care and treatment that informs all physicians that start with the basics and go from there, without the intention (from the women or the physician) of deliberately getting an abortion. The law, i think, is written from the perspective, as if ALL pregnant women see their OBGYN with the goal to get an abortion. And that is not accurrate. If the care and treatment recommends an abortion in order to save the mothers life then so be it.
If the prolife organizations are willing to sacrifice the pregnant women's life in order to prevent an abortion of any sort from taking place, then they should own up to it in their communications.
The leaders in the antiabortion movement all hate women and want us to die. Why should I help them conceal their intention to kill as many women as possible by clarifying bad laws? You made these laws. You wanted this result. You fix it by yourself. I’m not interested in solving a problem you caused for you.
If you walk into a crisis pregnancy center and see most of the staff are women you’ll realize what you just said is emphatically not true
It was other women who bound the feet of Chinese girls. It was other women who cut their daughter’s genitals off to make them more ‘marriagable.’ It is still other women who tell their daughters to stay married to men who beat them. There’s a really good reason the enforcers in the Republic of Gilead were women and not men. And yes, I AM comparing the staff of those places to the Aunts in Gilead. They are exactly the same.
There are many women who despise their own gender. Leah’s debate with Helen Andrews was indicative of that, but to compare all the staff at crisis pregnancy centers to the aunts in The Handmaid’s Tale is an unfair generalization.
I don't think people are trying to "kill as many women as possible," but it was primarily women who taught many of us, in youth, that we should be prepared to die for our babies. In school and after mass, women spoke to us, for instance, about how they were forgoing cancer treatment "for life." Just because you're a woman doesn't mean you affirm women's right to life.
It sounds to me like you are speaking out of hurt and have had bad experiences with bad men (and bad women). I’m a very sorry for that. I can think of multiple men in my life who have seriously inconvenienced themselves for me and other women.
Would you compare that at all to men being encouraged to give up their lives for faith and family, for the call often given to men to sacrifice themselves in faith communities? It is, of course worth mentioning, circumstances requiring men to put their lives on the line are increasingly few and far between
The sacrifices men make are insignificant and always have been, and when they have died, it’s because of the actions of OTHER MEN. There has never been a single man in all of human history who even mildly inconvenienced himself for any woman.
Really insightful framing of the implementaiton gap. The metaphor of the 'last mile' perfectly captures how legal text alone cant translate into actionable protocols without institutional commitment. I've watched this play out in other sectors where regulatory ambiguity becomes a shield for risk-averse decision makers, and the outcome is always the same: frontline practitioners stuck between vague rules and real consequences.
Yes, it crops up in “hostile work environment” too, where a firm can extend the law past its letter “just to be safe”
Can it really be that there aren’t good faith pro-life policy groups not working on this? If not, who would you petition to work on it?
There are, and they’re working to write bans that leave plenty of room for hospitals to act (as in the South Dakota video). The pro-life groups think the hospitals refuse to take yes for an answer, and won’t say what kind of exemption they could trust.
One pro-choice doctor who wanted to improve her state’s ban (that she opposes) couple not recruit pro-choice groups to sign on since it was their policy to not support anything short of repeal.
https://www.nytimes.com/2023/03/16/opinion/medical-exceptions-abortion-tennessee.html
When I worked closely in this space there was a lot of tension between wanting to implement adequate emergency protocols and a fear that doing so would concede something essential about abortion rights as you point out here - “advocating for clearer life of the mother exemptions undermines the movement as a whole—since it “creates a false hierarchy of who is deserving” of an abortion.“
I’m not sure if you know of the Regulatory Assistance for Abortion Providers team housed out of Resources for Abortion Delivery but they are attempting to navigate these tensions and advise pro choice hospital ObGyn and abortion providers.