Restrictions on reproductive rights with David Hackney, MD, MS

David Hackney, MD, MS, is a maternal-fetal medicine physician at Case Western Reserve University and chair of the American College of Obstetricians and Gynecologists' Ohio chapter.

Recap of reproductive rights restrictions

David Hackney: As folks probably know, the laws in Ohio changed on the very day of Dobbs on June 24. There had been SB 23, which was the quote unquote, "Heartbeat Bill," which had passed back in 2019. But while Roe was the law, the heartbeat bill had been held up in the courts. We all knew that the attorney general in the state was going to ask for SB 23 to be enforced at the time that Dobbs came. And as expected, they did ask for the injunction to be lifted on June 24. Well, what we didn't expect, which probably, in retrospect, we should have been ready for, was for the law to change at that very moment.

The judge overturned the injunction right then, and because it had been caught up in injunctions in the court, you didn't have the usual 90-day waiting period. Most of the time, when a law goes into effect, you have 90 days. And the 90 days is very important because you have to review the law and you have to change your policies and protocols. SB 22 was a law in Ohio that very night. And I was on call for MFM that Friday night. I remember people started to text me saying that the law had changed, asking [things] like, "how long do we have?" And everyone said, "No, it's a law right now." So I had to go in on Saturday, I had to go in on Sunday, and I wound up having a bleeding patient and I wound up having a patient who was going into heart failure.

As folks are also probably aware, the law is now back under injunction by state law. My gratitude and kudos towards the legal team who have been fighting SB 23. And specifically, they made the wise decision to move it from the state Supreme Court, which was willing to hear the case but not apply an injunction to a district court in Cincinnati. I should pause here and say that I am neither a lawyer nor a legislator, but that judge placed it under an injunction [inaudible], because we had gone about two and a half months under SB 23. So it is an injunction now, and my understanding is [that] it will remain an injunction until reruled by the Ohio Supreme Court. We did have statewide elections in November, including the Supreme Court. The justices which were elected, you never know how anyone is going to rule, [but] they do historically tend to lean against abortion rights. So there is a high probability, at least at some point, SB 23 may be put put back into law by the Supreme Court. At which point, our next step would be a constitutional amendment, then. And that, of course, is a complicated and potentially long process. We're going to have to see what the legal process is for SB 23 versus getting a constitutional amendment on the ballot. I do believe that if we have a constitutional amendment in the state, it would pass. You know, like most states, the great lion's share of people who live in Ohio do support certainly, at least, fundamental rights, let alone laws that are as extreme as SB 23. SB 23 makes no exception for rape. No exceptions for incest. There's no exception for any sort of fetal condition, including anomalies which are outright lethal.

How has this landmark decision affected access to care in Ohio, and the landscape of maternal health nationwide?

David Hackney: The two and a half months under which we are under SB 23 were just awful. I feel somewhat lucky and grateful to our legal team to have the injunction in place. Now, I hope for the injunction to be in place for as long as we can. My heart absolutely goes out for my colleagues in other states who are not as fortunate as we are at the moment. Especially friends in Georgia [where] the 6-week ban just went back into place. And even under SB 23, our situation in Ohio certainly was not as bad as Texas. For example, SB 23 did explicitly spell out that we could provide abortion services to patients with previable PROM (previable membrane rupture). We did not have to wait for bleeding or infection or fever, which certainly was not the case in Texas and some of the other states.

In terms of how things were during that time period, you can roughly divide it into the fetal cases and the cases for for maternal health. The fetal cases were just sad. When it came to the law, the law for the fetal cases is very straightforward. SB 23 did not allow for termination, even under the most lethal of circumstances. There were patients that we saw who had lethal anomalies who we were not able to provide abortion care to. There are patients in Ohio right now who are having to continue pregnancies from that two-and-a-half-month period because they were not able to get abortion care, which is utterly tragic. So those fetal cases were legally straightforward, though heartbreaking.

In many circumstances, the maternal medical cases were much more stressful. The law did spell out some specific conditions, but a lot of these laws--and Ohio was by no means unique in this circumstance--a lot of the language was fairly unclear and it carries criminal penalties. No one wants to face criminal penalties. It was predominantly an affirmative defense where the burden of proof--without myself being a lawyer or necessarily being able to explain this elegantly--but basically, affirmative proof was based on us. Specifically, [with] practicing maternal-fetal medicine, moms with health conditions is what we do and what we see in a very day-in and day-out sort of way and we do have to offer abortion services to cases where mom's health is at risk. We're just not used to thinking about criminal charges in medicine in general, especially in obstetrics and especially in maternal-fetal medicine, you know, civil risks are present all the time. From a psychological standpoint, we get used to facing several risks--not just with practice, but with regards to our emotional expectations and the emotional armor that we wear. We're not used to facing criminal risks. Criminal risks really aren't part of medicine at all. To find yourself having to think about criminal charges--in the context of trying to provide the best patient care that we can--was a terrible circumstance to be in.

How has this decision altered your practice, including how you counsel patients?

David Hackney: Diagnosing a birth defect, of course, is difficult. Under even the best of circumstances. We would generally take the approach of trying to keep everything as similar as we could to before Roe. So you obviously have to go through the process of diagnosing and breaking the bad news to the patient, and then discussing the options. And in Ohio, SB 23 didn't limit speech. There are other states where you are not allowed to refer, or where there were constraints on provider speech. We can still counsel patients normally. For the patients who did want to discontinue pregnancies in the context of a fetal anomaly, we can still refer out-of-state. A lot of the work we needed to do at that time was to set up our referral patterns, mostly to/from Cleveland, Michigan, and Pittsburgh. Fortunately, even if things do change again in Ohio, it looks like rights should be clear in those two states for the time being.

We were at least able to keep moving forward with everything we could to try to provide out-of-state procedures. Of course, some patients don't have the money to travel, and really, the time. One of the problems is that, in many circumstances, other states have a 24-hour waiting period. Depending upon the exact interpretation of the law, sometimes the 24-hour waiting period cannot start until the patient is physically in the other state. And the 24-hour waiting period usually predates cervical dilators or [inaudible]. So, you would have to have traveled to another state, and then [undergo] the 24-hour waiting period, and then usually 24 hours of cervical agents. It just all equates to, basically, days, and even if a patient has the money, you don't always have patients who can delegate days.

As chair of the Ohio chapter, is the American College of Obstetricians and Gynecologists (ACOG) taking any legal action to advocate against these restrictions on reproductive health care?

David Hackney: The constitutional amendment is the next step. That's a very complicated process, with the major question being trying to get on the ballot at 2023 versus 2024. There's advantages and disadvantages. Obviously, 2023 would be sooner. If you have these abortion laws in place every day--and every week counts--even the two and a half months that we were under SB 23 was way too long. We had serious harm which occurred under those two and a half months. Part of me will certainly want 2023 and there's people who are leaning towards 2023. On the other hand, 2023 is pretty soon, in terms of getting everything set to get it on the ballot. And then, if you want to be absolutely certain that it passes, you're potentially goint to have more voters going to the polls in 2024. However, it's going to cost a lot more. These are very expensive endeavors. Media ad buys are going to be much more pricey in 2024, especially because we'll have other races going on at that time.

Of course, I'm a doctor, not a pollster. I don't work for FiveThirtyEight or things along those lines. I have my own opinions regarding 2023 or 2024, most of which are that I would absolutely want adverse laws to be in effect for as short of a duration as we possibly can, given the human suffering that is at stake. To a large extent, I will defer a lot of these strategy decisions to the people who work in this area. Ultimately, all of the interested parties in the state [are] going to need to be on the same page. There are multiple groups who are going to work on a constitutional amendment, of which ACOG plans to obviously be involved in, among many. At some point, we'll settle on language and exact strategy, and then we will be all in.

It's going to be a long haul. It's going to be the long game, but I do believe that abortion rights will be reinstated. The constitutional amendments and ballot measures have passed in every single state, including states like Kentucky and Kansas, and other states which are similar to Ohio with regards to being purple-ish states. I will just refuse to believe that a law as terrible as SB 23, which causes the suffering that [it] causes, [and] that is opposed by such a large percentage of people in Ohio, would be able to remain on the books forever. Of course, if the injunction is lifted--if it does go back into effect--I want that period to be as short as humanly possible. You always are playing the long game. I do believe that abortion rights will be restored at some future point. We are certainly here for the long game to fight the fight in the state as well.