Ashley Brandt and her husband were ecstatic when they learned she was pregnant in May. Married for nearly a decade and living in the suburbs of Houston, they were already parents to a 3-year-old son and had always planned to have more children. Ashley, 31, dedicated herself to motherhood after spending time running an art studio. The couple’s excitement grew when her first ultrasound showed she would have identical twin girls.
“It was such an amazing surprise,” Ashley said. “We love being parents and desperately wanted to be pregnant, so this was just the best news we could get.”
Then things took an unexpected turn. During an ultrasound at 12 weeks, Ashley’s OB-GYN appeared visibly disturbed and told the couple that Twin A’s skull had not developed properly, leaving the fetus’ brain exposed and deteriorating, a fatal birth defect called anencephaly. The condition, the doctor said, was likely caused by factors out of the Brandts’ control, including genetics. There was virtually no chance the baby would be born alive; at best she might live a few hours. Yet because the brain stem itself had not deteriorated, Twin A still had basic bodily functions like muscle spasms and cardiac activity, making her ineligible for abortion care under Texas law.
“We went from pure excitement to deep sadness and terror,” Ashley said in a recent interview, her voice cracking. “This was the most traumatizing experience of my life and one that was made so much worse, unnecessarily, because of these illogical and dangerous laws.”
Ashley’s story underscores the impact state abortion bans can have on patients confronted with severe fetal abnormalities. The law in Texas – as well as in most states that have barred abortion care – makes no allowances for lethal anomalies, in which the fetus has zero chance of survival. Its lack of exceptions can create life-threatening consequences for complicated pregnancies and, like this one, place the delivery of a healthy baby – the ostensible objective of the anti-abortion movement – in jeopardy.
While Ashley Brandt’s experience took place just weeks before the U.S. Supreme Court dealt a blow to nearly 50 years of abortion-rights precedent by overturning the landmark Roe v. Wade ruling, she and the 5.4 million people of reproductive age in Texas were already living under the most restrictive abortion ban in the U.S. Senate Bill 8 barred care past detectable embryonic cardiac activity, typically at six weeks, and carried a private enforcement provision that left doctors susceptible to civil lawsuits from strangers.
The law caused thousands to flee the state for care and created a public health crisis in Texas. Exacerbating an already dire situation, Texas’ “trigger law” – a full abortion ban with felony criminal penalties including up to life in prison for the provider – took effect two months after Roe’s demise, with state leaders pushing to criminalize care immediately under a 1920s-era statute.
Neither Senate Bill 8 nor the trigger law carved out exceptions for rape, incest or severe fetal abnormality. SB 8 carried exceptions only for “medical emergency” and the trigger law “risk of death” or “serious risk of substantial impairment of a major bodily function” of the pregnant patient. The terms are so vaguely defined that doctors are erring on the side of extreme caution, leaving some patients to wait until they are “on death’s door” before being offered pregnancy termination, according to New England Journal of Medicine article published in August. In many cases, patients must first undergo organ failure, hemorrhaging, sepsis or other life-threatening conditions before medical intervention.
“Women are getting hurt by the uncertainty and ambiguity of the law alone,” said John Thoppil, an OB-GYN in Austin and immediate past president of the Texas Association of Obstetricians and Gynecologists. “We should not be risking women’s lives because we have to wait until there is a serious medical emergency. It’s devastating. This is something lawmakers perhaps didn’t even intend to do with the law, but they need to now make it a priority to clarify these exceptions.”
This medical gray area is weighing on the consciences of Texas hospital officials and doctors, who feel they must sacrifice their own professional ethics out of fear of liability.
In July, the Texas Medical Association, a nonprofit that represents more than 55,000 health-care professionals, asked the Texas Medical Board to step in after hearing complaints about hospitals turning away patients with complex pregnancies or delaying time-sensitive care, which can lead to complications, out of fear of violating the law. In one instance, a Central Texas hospital reportedly told a physician to refrain from treating an ectopic pregnancy, which is nonviable, until it ruptured, posing serious risk to the patient’s well-being. Now facing criminal liability, hospital administrators are doubly fearful.
“There are huge repercussions for doctors who violate the law and a lot of fear in the medical community right now,” Thoppil said. “And patients are understandably scared. Some are even considering moving out of state for their next pregnancies. It breaks my heart that women are having to think like this, but unfortunately it’s a rational thought.”
Options and Risks
Without abortion care on the table, Ashley Brandt’s options were few. She could wait until Twin A died naturally – an unlikely prospect – and absorb the remains, leaving Twin B healthy. She could miscarry Twin A, go into early labor and lose both babies. Twin A’s amniotic fluid sac could crush Twin B, leaving the healthy girl with a high risk of a physical disability. Or, Ashley could give birth prematurely but still late enough for survival, meaning Twin B would be stuck in the neonatal intensive care unit for months while Twin A would be stillborn or live for a few hours at most. In that case, Ashley said, “We hold her in our arms and wait for her to die.”
As a maternal fetal medicine physician in Texas and a fellow with Physicians for Reproductive Health, CeCe Cheng sees patients with high-risk pregnancies on a weekly basis. The overwhelming majority of them cannot be conclusively diagnosed with fetal abnormalities until later in pregnancy, far past the point when most states have already banned abortion, she said. Fetal anomalies affect about one in 33, or roughly 120,000, pregnancies in the United States each year, according to the Centers for Disease Control and Prevention.
“It can take weeks for a patient to receive a definitive diagnosis for an anomaly so when we see them they are usually 16 or 18 weeks in, much further than the abortion thresholds in many states,” Cheng said. “By that time, our patients don’t have a lot of options. It becomes a very difficult situation.”
Providers are afraid to even say “abortion,” as there is deep trepidation about what they can and cannot tell patients, Cheng said. She sees a mix of outcomes among her patients: Some are able to make the trip out of state; others can’t find the money to do so, and still others are uncomfortable with the notion of receiving treatment in another state.
“Receiving this kind of diagnosis can be really devastating and carry a really big emotional toll for some patients,” Cheng said. “When you include the pressure of being forced to seek care in another state, out of your comfort zone and support system, it can add so much more fear and anxiety.”
The New England Journal of Medicine article found that Texas patients like Ashley Brandt, facing a life-limiting fetal diagnosis such as anencephaly, are only being counseled to “continue their pregnancy and offered neonatal comfort care options after delivery.” All Texas clinicians the researchers interviewed prohibited selective reduction, which is the termination of a fetus in a multiple pregnancy. This applied even in cases where failure to perform the procedure could result in the “loss of both twins.”
The irony of the Texas law, Ashley said, is that lack of access to abortion care increased Twin B’s chance of death, as well her own.
“If I had not gotten the care I needed I could have died or seen my other twin suffer in the NICU, or possibly be disabled or dead,” she said. “How can you call yourself ‘pro-life’ and support laws that force women to gamble with not only their own lives but their babies’ lives? I don’t understand the logic.”
The Right to Emergency Care
The ultrasound diagnosis was just the beginning of the painful road for the Brandts.Crying uncontrollably, Ashley came home from the doctor’s office feeling lost and hopeless. The law barred her OB-GYN from even relaying her possible pregnancy termination options, so she took it upon herself to find answers despite feeling like she couldn’t get out of bed. After countless internet searches and phone calls, Brandt discovered she could get care in Colorado, although she would have to dip into the family’s savings and find someone to watch her son on short notice.
Spending thousands of dollars last minute on flights, a hotel room, car rentals, food and child care – on top of out-of-pocket hospital bills and the procedure itself – Ashley underwent selective reduction termination at 14 weeks in mid-June.
“It angers me that I had to travel out of state for a procedure that could have been done in a day here in my own community,” she said.
The trauma didn’t end there. The day she and her husband returned home, Ashley was up in the middle of the night, bleeding heavily – the amniotic fluid and blood from her deceased fetus had come gushing out. Her husband rushed her to the hospital, where, she said, she was “terrified” to explain she had just received abortion care out of state. She feared consequences for her physicians and – although the law does not explicitly allow for the prosecution of patients – herself. As it turned out, the fetuses carried separate sacs and placenta, which is atypical, allowing her healthy twin to emerge unharmed and her to recover.
Ashley Brandt’s fear of prosecution is not unfounded. More than 1,700 people have been arrested, prosecuted, convicted or detained due to their pregnancy outcomes since Roe was decided in 1973, according to National Advocates for Pregnant Women, a legal-defense nonprofit.That figure spiked from 2006 through 2020 and is expected to rise in the post-Roe world, disproportionately impacting those with low incomes and people of color, the group says. Just this year, a woman in South Texas faced murder charges for an alleged self-induced abortion. Those charges were dropped after public outcry from advocacy groups.
Despite her ordeal, Ashley Brandt acknowledged that her ability to leave Texas for care made her among the privileged. “It angers me that this is not an option for a lot of people,” she said.
Amid reports that doctors are waiting until a patient’s life is in immediate danger to perform abortion care – or not performing it at all – President Joe Biden issued an executive order in July citing a federal law that requires health-care providers to offer abortions when they are medically necessary, even if a state’s abortion ban doesn’t include that exception. The Emergency Medical Treatment and Labor Act, passed in 1986, doesn’t directly cover patients whose fetuses have lethal abnormalities. But it does require action when a patient’s life is at risk, including from a fetal anomaly.
“No matter where you live, women have the right to emergency care, including abortion care,” U.S. Health and Human Services Secretary Xavier Becerra said in a statement affirming Biden’s order.
A few days later, Texas Attorney General Ken Paxton filed a lawsuit against HHS, claiming abortions under the act are unconstitutional. “The Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic,” Paxton said. Siding with him, Lubbock-based U.S. District Judge James Wesley Hendrix, appointed by former President Donald Trump, temporarily halted the protection for emergency abortion care in the state. Meanwhile, a judge sided with the Biden administration in a similar case out of Idaho. The Department of Justice is likely to appeal the Texas ruling.
“I was stunned to learn that a state would spend the time and money to try to invalidate a federal rule that says states have to provide emergency care to patients,” said Greer Donley, an assistant professor at the University of Pittsburgh Law School who focuses on reproductive justice and bioethics. “[The 1986 act] is already a pretty low bar and only says you must offer care if someone’s health is in danger. You wouldn’t think a state would want to stop that, but here we are.
“It’s inevitable that disregarding this type of emergency care will lead to a rise in maternal deaths,” Donley said.
In Texas, those numbers likely won’t be made available anytime soon, as health officials are still reviewing maternal deaths from 2019. The Department of State Health Services decided to delay releasing a full maternal mortality analysis, originally expected on Sept. 1, possibly until next year. Some Democrats believe the move is politically motivated, designed to keep a sensitive issue out of the midterm elections, but state health officials deny that claim. Texas’ maternal death rate already is higher than the U.S. average, with Black women disproportionately affected.
Struggling with post-traumatic stress disorder, Ashley Brandt is trying to focus on welcoming her daughter – to be named Marley Isla – into the world in December. She talks excitedly about how well the fetus is doing in the womb. Her excitement turns to anxiety, however, as she imagines something terrible creeping up in an ultrasound or a routine test. She and her husband don’t think they can endure another pregnancy in Texas.
“We had always planned to have more children but I can’t risk going through what I went through again,” she said. “I don’t feel safe being pregnant in my home state anymore.”