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The following is an excerpt from Impossible Choices: A Physician’s Guidance on High-Risk Pregnancy in a World Without Roe, by maternal fetal medicine physician David Hackney.
In 2022, after a 6-week abortion ban became law in Ohio, where I practice, the greatest urgency was determining who could still receive care and who could not. On paper, this should have been exactly my bailiwick—not just in my statewide leadership roles, but specifically as a high-risk obstetrician routinely managing patients with complicated pregnancies. However, it was not clear.
Some questions in some states were straightforward as there were either explicit exceptions or prohibitions. For example, Ohio’s ban had written exceptions for five conditions: preterm membrane rupture, bleeding, preeclampsia, diabetes, and multiple sclerosis. Alternatively, many states also had explicit prohibitions, and our ban likewise held no mercy for cases of rape, incest, fetal complications, or pregnant children.
Between these two shorelines of clear exceptions and prohibitions, however, lie a vast ambiguous ocean of all other medical conditions, including, in Ohio, kidney disease, heart disease, and cancer. One of the fundamental problems with laws outlining specific exceptions is that it is impossible to encompass all existing diseases. For the totality of illnesses that were neither exemptions nor prohibitions, abortion was contingent upon a risk of death or “substantial and irreversible impairment of a major body function,” but only then under the auspices of an affirmative defense.
What is an affirmative defense? It is a defense the accused is allowed to evoke, but in doing so they assume the burden of proof. Although varying from state to state, other classic examples of affirmative defense include insanity, entrapment, and acting in self-defense. For example, if I was accused of some crime and my defense was that I had not committed the act at all—if, say, I had an alibi showing that I was in another city—then the burden of proof lies upon the government to demonstrate that I had, in fact, committed the act. If instead I admit to the act itself but evoke an insanity defense, claiming that I had committed the act with an unsound mind, then the burden of proof falls upon me to prove insanity because insanity is affirmative.
Most states, when drafting bans, elected to make abortion for maternal health—and even in some cases life itself—affirmative. Using our ban in Ohio as an example, preeclampsia was a stated exception. If a physician provides an abortion to a patient with preeclampsia, therefore, in theory they should be immune from prosecution. If they are nevertheless charged, they should not be themselves responsible for the burden of proof. However, if they performed an abortion for a different condition not explicitly listed as an exception, such as if a patient had cancer, then they could, in theory, be criminally charged. Once charged, that doctor could evoke a defense of having acted to save a life, though saving a life would be an affirmative defense. The physician would assume the burden of proof that the patient’s cancer necessitated abortion.
Some states have essentially no exceptions at all, with any abortions to save the parent falling under an affirmative defense.
Some states have essentially no exceptions at all, with any abortions to save the parent falling under an affirmative defense. Confusingly, the word “exception” is often used by the public and media colloquially rather than with a formal meaning. It is often said that some states make exceptions for maternal life or health, when these are only covered by an affirmative defense without any formal exceptions at all.
As a society, we are also traversing entirely new territory absent prior case law, rulings, or precedent. Other affirmative defenses such as insanity, entrapment, or self-defense have long histories, with famous cases involving Twinkies, Patty Hearst, or reality shows starring Chris Hansen. These prior cases serve in turn as our guideposts and guardrails. But as of this writing, a physician has not yet evoked affirmative defense for maternal life or health. The most terrifying risks are those for which you do not know the underlying probabilities, what dice you may or may not hold in your hand.
For example, physicians learn extensively about civil litigation, especially in litigious specialties such as high-risk obstetrics. Outcomes in lawsuits are notoriously unpredictable, though from years of case history we at least fundamentally know the parameters. We also knew and accepted those risks when we decided to enter medicine, when we selected our specialties. But we always imagined only civil litigation; we never foresaw the myriad other interactions with the legal system we now face.
Legally, obstetricians could not escape the myriad decisions surrounding pregnant patients with cancer or heart or kidney disease as they sat in our offices. A physician’s role is to guide patients through the risks they face in order to make a choice. After Dobbs, this structure was often turned exactly on its head, with patients certain of their choice but the physicians now facing risks and not knowing what to do. The doctor could review the patient with hospital counsel, describing the illness from their medical perspective, using medical terminology. The lawyer then could explain the legal thresholds for abortion, from the perspective of a lawyer using legal terminology. Yet even if they could harmonize perfectly, it may still not matter as an affirmative defense is contingent upon only future prosecutors, judges, or juries whose opinions are unknown.
Why not solve the problem of affirmative defense by having every state with a ban draw up a comprehensive list of exceptions that physicians could then simply follow? The immediate problem with this proposition is that, like the bans themselves, it fundamentally circumvents bodily autonomy in healthy patients. Envision, as a thought experiment, two patients seeking abortion, of whom only one could receive care. The first patient is pregnant with a life-limiting fetal genetic condition, while the second is completely healthy, but she is in her late teens and does not want to be pregnant. What would be the differing impacts of providing or refusing abortion care upon the total trajectory of these two patients’ lives? Does one patient take precedence due to the fetal genetic condition alone?
Even if a list of exceptions is drawn, what does it include or exclude? There exist within the universe hundreds upon hundreds of diseases and conditions. For example, after Louisiana’s abortion ban went into effect, the state released a list of 24 diagnoses for which physicians could provide abortion. The list came in the form of a declaration of emergency from the Department of Public Health, stating that “the Department of Health establishes the following exclusive list of anomalies, diseases, disorders, and other conditions that shall deem an unborn child ‘medically futile’ for purposes of [the new law].” The document then listed the 24 conditions, followed by a more open-ended 25th category of “a profound and irremediable congenital or chromosomal anomaly existing in the unborn child that is incompatible with sustaining life after birth,” which required the certification of two physicians in their reasonable judgment.
Nancy Davis was a 36-year-old woman living in Baton Rouge, Louisiana. In 2022, a routine ultrasound demonstrated fetal acrania, a condition in which the bones of the fetal skull are absent. Healthy brain development is impossible with acrania; the condition is incompatible with life. However, Louisiana’s declaration of emergency had not listed acrania among the 24 diagnoses that would allow for abortion. First Davis was referred to a clinic that provided abortions, but after Dobbs, that clinic had already closed. She then requested abortion care from her hospital, but they declined because the declaration of emergency had not specifically listed acrania. There are literally hundreds of human diseases. Could the hospital have still provided abortion under Category 25, the more open-ended “profound and irremediable congenital or chromosomal anomaly”? Potentially, it could have. Perhaps a different physician or hospital may have braved providing care for Davis. But could a person be so certain of Category 25 that they would place themselves at criminal risk, and risk the potential loss of licensure and the end of their career? Davis later traveled out of state for abortion care.
Another problem with exceptions is that many diseases’ risks exist along a continuum without clean demarcations along which to draw an arbitrary line. For example, physicians measure kidney disease by laboratory values such as serum creatinine or globular filtration rate (GFR), values that rise and fall with the disease severity. Pregnancy places a significant strain on the kidney, which many patients tolerate easily; for others, it throws them into renal failure, leading ultimately to dialysis and transplant waiting lists. For a pregnant patient in the first trimester, their future renal risks likewise rise and fall in accordance with their initial laboratory values.
A maternal fetal specialist could have in their office two patients with chronic kidney disease, both early in the first trimester. The laboratory results of the first patient are only slightly worsened, indicating mild impairment, so the physician cites a low risk of pregnancy straining their kidneys into failure. The patient across the hall, meanwhile, has worse labs, so the physician cites a higher risk. In neither case is the outcome certain—the more severe patient may beat the odds, and the healthier patient may draw the bad straw—but both can approximate their odds from the laboratory values. Both can then make decisions regarding continuation or abortion. Counterintuitively, the patient with the worse disease will sometimes continue, already at peace with dialysis or transplantation as their likely future regardless of the pregnancy, while a patient with milder disease may be the most motivated to still preserve their long-term health and thus select abortion instead.
Now, when considering medical treatments and decisions, physicians must also weigh the legal risks to themselves. Where within this continuum of abnormal laboratory values does one draw a line and provide abortion care? Any laboratory value that is not completely normal? Or a value that is at least doubled? Or 10 times worse? Any potential demarcation is arbitrary. Kidney disease is also just one disease among many that exist upon a similar continuum: the rising or falling blood sugars in diabetes, improving or worsening cardiac function in heart disease, or even the physical size of a pregnant child.
In July 2022, a pregnant 10-year-old came under the care of an Ohio OB-GYN. Public details are, appropriately, curtailed, though any pregnant 10-year-old is raped by definition as they cannot provide consent at that age. Authorities later caught the rapist, who entered a guilty plea in July 2023 and is currently serving a life sentence. The legal process surrounding the rapist was quite clear: He had committed a grave crime, was charged, and was then sentenced through well-established procedures. But what of the doctor that day with the child in their office? What laws, legal history, processes, or precedent surrounded them?
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We know from subsequent events that the family requested abortion care, though Ohio’s ban cruelly made no exceptions for rape, children, or incest. The law did, however, allow abortion to protect maternal health, albeit under an affirmative defense. Carrying a pregnancy in a small 10-year-old body risks injury for obvious reasons of physical size. Visualize for a painful moment a 10-year-old at a full 40 weeks gestation, struggling to stand from a chair or walk down a hall under the weight of a term uterus: an image not only heartbreaking but clearly dangerous. But is the danger sufficient to qualify under an affirmative defense?
At the time the child presented, no exact guidance in this regard existed, either within the law or from our state’s attorney general. Although someone had taken time to exactly spell out a small number of exceptions, such as multiple sclerosis, this situation was unaddressed. Even if an answer existed for a 10-year-old, what then about the physical risks to a raped 11-year-old? Would those also be qualifying? Does it matter if for any given age the girl is taller or shorter? The question, in all its grim literalness, is what size of a child’s body is too small under the state’s affirmative defense? Like rising and falling laboratory values or measures of heart or kidney function, the risk to children exists on a continuum in accordance with size.
The question, in all its grim literalness, is what size of a child’s body is too small under the state’s affirmative defense?
Here we must pause to acknowledge the unequivocal horror of these questions. We would prefer to live our lives never thinking about raped children at all, let alone ponder which size body could safely carry a pregnancy to term. It is a subject for which cold, abstract contemplation is almost impossible, especially if you attempt to address it by imagining differing scenarios in your mind’s eye.
In 2018, years before the Dobbs decision, one of our fellows training in maternal fetal medicine, along with a colleague and myself, statistically analyzed this exact question using the National Inpatient Sample, an enormous database of hospitalized patients from around the United States. We pulled the data on pregnancy outcomes in patients who were 10 to 14 years old, then later presented our results at the 2019 meeting of the American College of Obstetricians and Gynecologists. I remember the fellow and I initially in my office discussing the possible project, how the subject matter made us deeply uncomfortable, a discomfort sufficient for us to question proceeding at all. However, if there exists an unanswered clinical question, the answer to which could inform future patient care, then the research should not just be contingent on our comfort. Ultimately, we found that pregnant children under age 14 had significantly higher obstetric risks, including preeclampsia, than those between ages 14 and 18, even when adjusted for other confounding factors.
The impulse to look away from terrible events is natural and understandable, though always also a decision we make. Imagine a reader seated at a table as their book transitions to the disquieting topic of pregnancy in small children. It would be entirely reasonable, if not in fact rational, to consider skipping ahead to the next chapter if this was a triggering topic. Presuming the reader is not a doctor nor a lawyer nor a legislator, they hopefully do not require a technical understanding of pregnancy in children anyhow. Each reader thus makes the free decision to continue or skip ahead.
In the next building over, a pediatrics or obstetric trainee sits at a table as their medical textbook transitions to the unsettling topic of pregnancy in small children. Do they skip ahead to the next chapter? They may the next day have a pregnant child walk into their office and will need to know what to do. Then in the next building, a group of legislators are crafting a bill to restrict abortion rights. Do they consider the subject of pregnancy in small children, or do they choose to metaphorically skip ahead? Does anyone in those meetings say: “I know this is unpleasant, but what guidance do we intend for a doctor when, tragically, though inevitably, a pregnant 10-year-old walks into their office?” I was not at those meetings in my state, but given the chaos that followed here it is clear there existed no functional plan. We wish children never to be victims of incest or rape, but we do not choose the world that exists—only what within that world we choose to see.
We wish children never to be victims of incest or rape, but we do not choose the world that exists—only what within that world we choose to see.
As is appropriate, I do not know which of our physicians saw the child that day, though after presumably weighing the facts and consulting lawyers, they decided not to legally risk abortion care. How did they tell the patient and her family? The decision must have been agonizing, and I would not judge or cast doubt on that physician; our legislators bear the sole responsibility for an essentially impossible bind. Perhaps we imagine ourselves more courageous, though I do not presume to know what I would have done myself. Regardless, the physician referred the child to neighboring Indiana, precipitating a complicated chain of events, a story of courageous physicians facing their own personal risks.
Meanwhile, when the story first broke, our state attorney general appeared on a cable news program to raise suspicions. On July 11, he said “there was not a whisper of evidence” that the raped 10-year-old had really existed. He said the story was “full of red flags.” The story was completely true—the rapist identified and arrested shortly after that interview, the facts later confirmed in a court of law, the rapist now in prison. Of course, it was illogical for the case to have been doubted in the first place given the hundreds of children across the country who become pregnant annually from rape. The annual number of pregnant children at differing ages is also easily available for anyone bothering to examine public health records. The irresponsibility of questioning the story’s truth was matched only by the irresponsibility of not having had a plan for this child already in place. The backlash and uproar were significant, our attorney general later stating that he believed the child would have qualified for an abortion under affirmative defense.
After these events, OB-GYNs now reasonably presume abortion care can be provided to a 10-year-old. But what about an 11-year-old? Or a 12-year-old? Or a 10-year-old in a different state with a different attorney general? These questions are neither hypothetical nor politically motivated to ensnare opponents into discomfort: pregnant 11-and 12-year olds do walk into OB-GYN offices, and physicians genuinely do not know what to do.
... exceptions only masquerade as freedoms; they are in truth the crumbs of autonomy that legislators choose to bestow or withhold from us.
When making these decisions in many restrictive states, however, physicians must only account for the physical risk to the small body of the child. What of the emotional aftermath of being forced to carry a pregnancy resulting from rape? The entire impact on their subsequent lives beyond the impact on their bodies themselves? In considering abortion under these bans, we must completely ignore these questions, as many of the laws are unconditionally without exceptions in this regard. But how does a physician actually do that? How many deeply held beliefs does this require we swallow down so hard against?
In the end, exceptions only masquerade as freedoms; they are in truth the crumbs of autonomy that legislators choose to bestow or withhold from us. We should not have to plead for exceptions. We should just have rights.
Excerpted from Impossible Choices: A Physician's Guidance on High-Risk Pregnancy in a World Without Roe, by David N. Hackney. Reprinted with permission from The MIT Press. Copyright 2026.
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