Practicing Post-Roe: Ectopic Pregnancy

A common question from insureds in the wake of Dobbs v. Jackson Women’s Health Organization is whether – and to what extent – ectopic pregnancies are affected by the enactment of various state abortion bans. Based on present information, the Dobbs ruling should not change the way healthcare practitioners care for and treat ectopic pregnancies. Healthcare practitioners should continue to follow evidence-based medicine and utilize normal medical and surgical options to address ectopic pregnancies, just as they would pre-Dobbs.

According to The American College of Obstetricians and Gynecologists (ACOG), an ectopic pregnancy occurs when a fertilized egg grows outside of the uterine cavity – with more than 90% of ectopic pregnancies occurring in a fallopian tube. ACOG notes that a tubal ectopic pregnancy will never be a viable pregnancy. It cannot move or be moved to the uterus. As the pregnancy grows, it can cause the structure where it is implanted to rupture which can, in turn, cause major internal bleeding and require urgent surgery. The primary methods to treat an ectopic pregnancy include medication (commonly methotrexate) and surgery.

Presently, no abortion laws seek to criminalize the removal of ectopic pregnancies. In fact, even in states with stringent abortion bans, ectopic pregnancies are commonly excluded from the definition of “abortion” or are otherwise exempted. For example, in Alabama, the law states an “abortion” specifically “does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy[.]”¹ Similarly, in Arkansas, an act is not an abortion if it is “performed with the purpose to… remove an ectopic pregnancy[.]”² In states that explicitly exempt ectopic pregnancies, providers should not fear prosecution and should continue to perform medical and surgical removal of ectopic pregnancies in a manner consistent with their education, training, and the standard of care.

Even if the state does not explicitly exclude ectopic pregnancies from its definition of abortion, all states currently have some form of a “medical emergency” or “life/health of the mother” exception to their abortion law. These exceptions generally allow abortion when it is deemed medically necessary to prevent the death of the patient or to avert serious risk of substantial and irreversible physical impairment to the patient. For example, Nebraska’s law bans abortion after 20 weeks except in cases where a physician has made a reasonable medical judgment that the patient “has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.”³ Given the serious and life-threatening nature of ectopic pregnancy, it should either be considered a “medical emergency” or a permissible procedure to preserve the life or health of the patient.

There have been reports of providers waiting until the patient becomes medically unstable before removing an ectopic pregnancy out of fear of prosecution under the state’s abortion ban. However, current laws that ban abortion should not alter the clinical realities of ectopic pregnancy management or the medical decision-making of healthcare professionals. Delaying or withholding treatment for an ectopic pregnancy can lead to death. If reasonable clinical judgment indicates the pregnancy poses a risk to the patient’s life, then reasonably prompt action in response to the individual circumstances should be taken.

The following practice pointers for providers are particularly relevant in the context of ectopic pregnancies:

• Document the medical condition. Make the record clear that the patient has an ectopic pregnancy, the location where it implanted (if able to be determined), and identify the tools used to make the diagnosis (i.e., ultrasound, pelvic exam, blood tests, etc.).
• Document your discussion of the risks and benefits with the patient. Except in emergency cases, the chart should reflect – at minimum – that you discussed the risks attendant with continuing an ectopic pregnancy (e.g., rupture, bleeding, injury to organs, and death). Careful documentation of your communications with the patient about the harm that can/will result if the ectopic pregnancy is not removed is paramount. If a discussion detailing the non-viability of the ectopic pregnancy occurred, document that as well.
• Document the purpose of the procedure and your intent. The record should reflect that the purpose of the procedure is to remove a non-viable/ectopic pregnancy. Phrases such as “medically necessary” and “in my reasonable medical judgment” should be used where appropriate. Additionally, document your intent for performing either medical or surgical removal. Identifying your specific intent to prevent harm to the patient using phrases such as “to reasonably avoid tubal rupture and avert internal bleeding” and/or “emergently avoid maternal death” will be particularly helpful.
• Document why the procedure is needed at the present time. In most cases, ectopic pregnancies are treated as soon as possible to avoid rupture. Identifying the rationale for why it is medically necessary to move forward with the procedure at the present time may help ward off allegations that you performed the procedure “too soon” or before harm was “imminent.”
• Code the procedure properly. Make sure you and any relevant staff know the proper codes for ectopic pregnancies and utilize them appropriately.
• Consult an attorney in your state that is familiar with the statutory language that governs abortions. The particular wording of each state’s abortion law will differ. Working with legal counsel to understand the exact phrasing contained in your state’s laws can help improve your medical documentation. For instance, some states may allow abortions to avert a “serious risk.” Practitioners would be wise to use terms in their medical charting that match and track the terminology in the state’s laws when appropriate.
• Rely on your medical training and clinical judgment. While the current legal climate invites fear and speculation, providers should focus on making reasonable medical judgments that are guided by their medical education, training, and previous experience.

This essay was provided to ProAssurance by the Starnes, Davies, Florie LLP law firm.

Published 8/2/2022

REFERENCES

1.  Ala. Code § 26-23H-3(1) 
2.  A.C.A. § 5-61-403(1) 
3. Neb. Rev. St. § 28-3, 106