Back in June of this year, Wisconsin Attorney General Josh Kaul filed a lawsuit challenging Wisconsin’s ban on abortions. Kaul’s lawsuit claims, essentially, that the 1858 law is too old to be enforced – and that legislation passed in recent decades invalidates the ban. Now, medical providers are pointing out ripple effects of Wisconsin’s abortion ban – including difficulties recruiting and retaining Wisconsin’s OBGYN workforce.
Even if Kaul’s challenge to Wisconsin’s abortion ban is successful, it could take years to move through the legal process. In the meantime, the ambiguity around the law has left Wisconsin Obstetricians, gynecologists, and other medical professionals unsure of whether they can treat patients without losing their license to practice medicine.
The ban, which was first passed in 1849 and heavily revised to be much more restrictive in 1858, makes it illegal to perform an abortion unless the life of the mother is at risk.
For help understanding what this means, I spoke to Dr. Wendy L. Molaska, president of the Wisconsin Medical Society, the state’s largest and oldest physician’s organization. Yesterday, she was part of a roundtable convened by Wisconsin Health News that outlined the ripple effects of the Supreme Court’s Dobbs decision and Wisconsin’s abortion ban. One effect? Ambiguity for medical providers.
“The current statute from 1849 says that the only thing we can provide abortion care for is the life of a mother, not the health of the mother. And this is where it becomes complicated–where is that line? Who makes the call as to when a woman’s life is enough at risk, versus when just her health is at risk? And that’s a big discrepancy that a lot of people don’t understand is that there’s this weird legalese between the health of the patient and the life of the patient. So if she’s only bled out one liter and her vital signs are still stable is that okay because her life isn’t at risk? Do I have to wait until her vital signs are unstable so that her life is at risk?” said Molaska.
Malpractice law requires doctors to provide a reasonable standard of care to their patients. A doctor who fails to provide abortion healthcare to a patient who needs it could be found to have committed malpractice by a civil court.
However, if the state decides that the doctor acted too soon, they could be charged with a felony under the 1849 law:
“I [could] be criminally prosecuted for providing the standard of care to a patient. If I’m criminally prosecuted that doesn’t go under malpractice. I need a criminal attorney, I’m risking jail time, my license will be taken away because I’m now a felon. If I wait too long and don’t meet the standard of care I’m risking a malpractice case. So while we’re not criminalizing patients we’re criminalizing physicians from providing a standard of care that’s recognized. So am I going to lose my license because of a malpractice case or a criminal case? That’s the rock and the hard place right now,” said Molaska.
A 2018 study found that Wisconsin already has a shortage of OB-GYNs, particularly in rural areas. Molaska says the ban is likely to make this problem worse:
“One of our concerns is that our medical students and residents won’t get training that they need to be able to provide abortion care, which also overlaps with what people consider miscarriage care. What we find is that residents who practice in a state tend to stay in a state, [so] if we are not attracting residents into our state because they’re worried about the kind of training that they’ll get we’re also going to start worrying about how to recruit OB-GYNS or get OB-GYNS to stay in the state,” said Molaska.
She says that, although it’s legal to study abortion-related healthcare in Wisconsin, it may be illegal for medical students to get the hands-on training they need in the state:
“Education around miscarriage, abortion, all the different techniques and stuff is in place, but where it becomes a potential problem is for those residents who want to learn the techniques of being able to prescribe medication for ectopic pregnancies or miscarriages or abortions – learning how and getting enough procedures to be able do Dilation and Curettage, which are used for so many other things aside from just abortions. So if you’re not getting the number of procedures to be able to feel confident […] you’re not going to be able to provide it for many other procedures as well,” said Molaska.
Because fewer students are able to study reproductive medicine in Wisconsin, Molaska predicts it will become harder to meet the state’s need for OB-GYNs. One possible solution is having medical students train in Illinois and other states where the procedures are legal to perform. But this comes with a downside:
“Right now what it looks like is that residents and students are potentially looking at doing rotations out of state to try and be able to get the number of procedures they need to feel confident, but that provides a bigger hardship for them, because now as a student and resident who doesn’t get paid anything you’re having to set up travel, you’re having to set up housing, and you’re having to set up these rotations where you’re potentially away from your family to get the training that you need,” said Molaska.
And that also affects recruitment of OB-GYNs in Wisconsin, because the state could be seen as a less attractive option for graduating doctors:
“The other interesting thing is that if you look at it is the majority of graduating classes of residents for family medicine and obstetrics/gynecology currently are majority female, and as you’re coming out of residency in medical school a lot of times you are a female of child-bearing age, so one of the other things physicians are going to be looking at is ‘Hey, if I’m coming into a state where I might potentially be getting pregnant is this a state that’s gonna support me with my reproductive health?’” said Molaska.
The problem isn’t just the number of OB-GYNs in Wisconsin though. Molaska says that the legal questions around the ban pose particular dangers to patients in rural communities because rural hospitals often lack the resources of larger medical centers:
“In the rural areas when you have a patient who’s bleeding and you don’t know whether or not she’s at that right point where we consider her life in danger or can we do this emergency procedure, there are limited things such as blood transfusions. So at a rural hospital you only have so much blood and it might not type out to your patient, so when you’re trying to consider them bleeding you’re like “oh my gosh, do I have their type of blood? Can I get that typed and crossed and get that into them?” And so it becomes a lot more dicey when any patient needs emergent care and especially OB-Care, because it can go south very very quickly,” said Molaska.
Molaska warned that the legal uncertainty surrounding Wisconsin’s abortion ban could also affect access to medical care in urban areas of the state:
“What we worry about as well is that we all went through this pandemic where beds were scarce at hospitals, and we also had nursing shortages that we’re worried about. So if all of a sudden we’re transferring our patients from the rural areas into Dane county are we going to have to start worrying about bed availability again? So it becomes a big huge ripple effect that not many people realize,” said Molaska.
Kaul’s lawsuit is expected to be appealed to the Wisconsin Supreme Court over the next several months. The court currently has a 4-3 conservative majority, which could potentially flip following next year’s election.
Photo courtesy of Brian Standing for WORT-FM.