< 3 abortion bans in Texas leave doctors 'talking in code' to pregnant patients

STEVE INSKEEP, HOST:

Lauren Miller was 13 weeks pregnant when she received the news - a lethal diagnosis for one of her twins. So she saw a high-risk OB-GYN in her state of Texas and heard this.

LAUREN MILLER: You can't do anything in Texas, and I can't tell you anything further in Texas, but you need to get out of state.

INSKEEP: So that's what she heard. But is that true? Can Texas doctors not even talk to patients about abortion? Here's NPR's Selena Simmons-Duffin.

SELENA SIMMONS-DUFFIN, BYLINE: There isn't one abortion ban in Texas. There are, in fact, three laws banning abortion, says Elizabeth Sepper, a professor at Texas Law.

ELIZABETH SEPPER: You have the trigger ban. That comes along with up to life imprisonment. We have possibly the pre-Roe ban, and then we have SB8 as a civil backstop which prohibits aiding and abetting abortions.

SIMMONS-DUFFIN: But these laws are not as sweeping as some people seem to think, she says, and they wouldn't come into play for Lauren Miller.

SEPPER: All of them exempt the pregnant person. None of them apply outside the borders of Texas. So abortions performed in Colorado or California are not covered. On top of that, none of them - if we focus on the criminal bans, they don't criminalize physicians' speech, right? So physicians should not be scared to say the A-word.

SIMMONS-DUFFIN: Nevertheless, that seems to be what's happening. Many physicians in Texas who treat pregnant patients are really scared.

UNIDENTIFIED OB-GYN: It's just absolutely crippling.

SIMMONS-DUFFIN: That's Lauren Miller's OB-GYN in Dallas. She was willing to speak with NPR anonymously because she was not authorized by her employer to speak with the media. There is an exception in Texas law for when a woman's life or a major bodily function is in imminent danger. But authorities haven't clarified when that applies. And there are pregnancy complications like Lauren Miller's, where many doctors would consider it to be the standard of care to offer abortion as an option. In those cases, physicians feel like they can't be fully truthful with patients, Miller's doctor says.

UNIDENTIFIED OB-GYN: I have colleagues who say cryptic things like, the weather's really nice in New Mexico right now, or I've heard traveling to Colorado is really nice this time of year.

SIMMONS-DUFFIN: Patients need to be well-educated enough to pick up on these hints, do their own research and figure out what to do next. She herself is careful not to put things in writing and even frank conversations in person or over the phone make her feel vulnerable.

UNIDENTIFIED OB-GYN: If a patient's grandmother or aunt or partner or sister or whatever finds out that I've talked to them about an abortion, and that's something that really, really upsets them, all they have to do is find a lawyer and all of a sudden I'm aiding and abetting someone into an abortion.

SIMMONS-DUFFIN: A half-dozen Texas OB-GYNs NPR contacted for this story didn't respond or declined to comment. Dr. Andrea Palmer, an OB-GYN in Fort Worth, says a lot of people are too scared to talk. She says there's a lot of uncertainty since this hasn't really been tested in court.

ANDREA PALMER: Nobody wants to be the first one (laughter). Yeah, nobody wants to be defendant number one on that.

SIMMONS-DUFFIN: Palmer says even if you read the law closely, it's still not clear what doctors can say and do.

PALMER: The law's vague. It's really, you know, poorly written, probably on purpose.

SIMMONS-DUFFIN: No doctor in Texas has yet been charged for counseling their patients about abortion. Sepper, the law professor, says it's a disservice to patients when doctors don't use their First Amendment rights.

SEPPER: Physicians have independent speech rights to speak to their patients openly. Providing information, even providing referrals outside of Texas - it's not within the terms of either SB8 or the criminal bans.

SIMMONS-DUFFIN: Doctors' unwillingness to talk about abortion can have serious consequences. Dr. Eve Espey is chair of the OB-GYN department at the University of New Mexico, where more and more Texas patients are traveling for abortions.

EVE ESPEY: We see people who just, you know, have no idea that there are options out of state.

SIMMONS-DUFFIN: She recalls one Texas patient whose fetus had a fatal condition called acrania - the absence of a skull.

ESPEY: And that was a doctor who didn't tell her, go get care out of state. You know, she was an immigrant. And it took her a while to figure out that she could go out of state, that there were other resources.

SIMMONS-DUFFIN: Even though she was diagnosed at 11 weeks pregnant, by the time she made it to Espey's hospital in New Mexico, she was 17 weeks, and the surgery was much more complicated.

ESPEY: We did her procedure in the operating room with our, you know, most complex surgeons there as backup. And she hemorrhaged. She wound up with a hysterectomy. So this is a patient who, if she had been able to have that pregnancy termination at 11 or 12 weeks, very likely would not have lost her uterus the way she did when she was 16 to 17 weeks.

SIMMONS-DUFFIN: Espey believes that there are many doctors in Texas who would like to provide more information but are unsure if they can.

ESPEY: The Texas laws were designed to sow confusion and fear, and they're working. And people want to stay out of trouble. And, you know, physicians are no exception to that.

SIMMONS-DUFFIN: NPR reached out to five Texas lawmakers and the state attorney general to ask for more clarity on Texas's abortion laws and to get comment on Lauren Miller's case. None responded to our request. Brendan Steinhauser, a Republican political strategist based in Austin, believes that Texas lawmakers aren't eager to take up new abortion legislation, either to create more exceptions or more restrictions.

BRENDAN STEINHAUSER: I think Republican legislators kind of realize, hey, we passed these bills into law. We weren't punished at the ballot box. So what is the incentive to do anything different?

SIMMONS-DUFFIN: The way Lauren Miller sees it, if not for the state of Texas and its restrictions, her doctors could have done much more to help her.

MILLER: They would have just been able to give information freely, get it scheduled. It wouldn't become this whole agonizing process of just trying to get information of what do we actually need? Like, where do we go? How are we going to handle logistics? - all of that.

SIMMONS-DUFFIN: She had to leave her home state and travel 800 miles to get an abortion that her doctors told her she needed. That makes her angry, and she refuses to stay quiet about it.

Selena Simmons-Duffin, NPR News.

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