AMA Votes to Oppose Punishing Doctors When Necessary Care Results in Fetal Death

In the wake of the Supreme Court’s June decision to overturn Roe v. Wade, the American Medical Association (AMA) House of Delegates Monday voted on a resolution to work against all policies or laws that exact punishment against clinicians or their patients in the event a woman loses a pregnancy as a result of medically necessary care, such as treatment for cancer.

“A growing number of current and pending laws insert government into the patient-physician relationships by dictating limits on bans on reproductive health while also aiming to criminally punish physicians who provide services that result in the loss of pregnancy,” said the resolution, which was debated at the AMA Interim Meeting of the House of Delegates, held virtually and in Honolulu.

The AMA’s approval — to oppose “criminalization of, or civil penalties for,” care that results in pregnancy termination — came after a 45-minute debate during which speakers told stories of women being arrested and imprisoned after miscarriages or stillbirths, and physicians finding themselves in legal jeopardy. Dozens of speakers tweaked, clarified, debated, and amended the language for precision.

“Criminalizing pregnancy loss casts pregnant people as vessels rather than people,” said Anna Yap, MD, speaking for the AMA Resident and Fellow section. “In 2019, prosecutors in 45 states have used these laws to charge pregnant people who are experiencing pregnancy loss after using drugs, including legal prescription drugs,” she said. “Pregnancy loss can be blamed on drug use, regardless of whether those drugs actually contribute to the miscarriage in any way.”

Mark Kashtan, MD, MPH, of the New England delegation, also supported the policy. “In our post-Dobbs reality, tens of millions of women, and tens of thousands of physicians, live and work in parts of the country where they are now subject to misguided civil and criminal penalties, stemming from the loss of pregnancy secondary to adverse events of medically necessary treatment, trauma, or other unexpected events.”

“This is not just a hypothetical concern,” he said. “Women have been wrongfully incarcerated under these statutes. Physicians have lost their careers, their livelihoods, and their good names.”

Kashtan added that “Government officials acting without regard to medical science have confounded tragedies and misguided attempts to apportion blame for political purposes. This cannot be allowed to go unchallenged by the AMA. Our organization must avail itself of every tool at its disposal to advocate at federal, state, and local levels to protect our patients or colleagues and the physician-patient relationship, and these travesties of justice.”

Tani Malhotra, MD, of the Ohio delegation, was roundly applauded when she insisted the AMA resolution should not be limited to protecting physicians. “In Iowa, a pregnant person fell down the stairs and was reported to police after seeking help at a hospital. She was arrested for attempted fetal homicide.”

“In Utah, someone gave birth to twins. One was a stillbirth. Healthcare professionals believe she had a stillbirth as a result of the patient’s decision to delay having a cesarean [section delivery]. She was arrested on charges of fetal homicide. And in Louisiana, a woman who went to the hospital for unexplained vaginal bleeding was locked up for over a year on charges of second-degree murder before medical records revealed she suffered a miscarriage at 11 to 15 weeks,” Malhotra said.

All those events happened before Roe was overturned, she said. Now that it has been, she added, “I expect that this will only get worse.”

Because AMA debates typically need speakers to speak on both pro and con sides, and no speakers opposed the measure, Oran Lee Berkenstock, MD, of Tennessee, volunteered to express a negative view. “I don’t think this goes far enough,” he said.

In Tennessee, because of a legal policy called “affirmative defense” in its pregnancy laws, if a physician treats a patient in a way “he thinks is appropriate in the care of pregnancy” and something goes wrong, “he is still held liable and can be arrested and then has to prove his innocence.”

Seema Sidhu, MD, an ob/gyn from the California delegation who spoke as an individual, wanted the resolution to include the word “termination” to exonerate treating physicians and their patients who choose to terminate their pregnancies because they are taking medications with teratogenic effects. She has a patient who was taking methotrexate for arthritis, which can cause severe birth defects or fetal death and discovered she was pregnant, she said. “Now she wants to terminate the pregnancy; she should be allowed to do it.”

But Brandi Ring, MD, a delegate for the American College of Obstetricians and Gynecologists, argued against including the word “termination,” saying the AMA has a policy to oppose “the imposition of criminal and civil penalties or other retaliatory efforts against patients, patient advocates, physicians, other health care workers, and health systems for receiving, assisting, and referring patients to or providing reproductive health services.” The AMA approved that policy in June.