When Rep. Jason Nemes started working with Dr. Jeff Goldberg to amend Kentucky’s abortion ban, he thought their effort was doomed.
Nemes, a Middletown Republican, said he told the OB-GYN, “Doc, you know, this is about abortion. It’s probably a zero percent chance we can get anything passed. But you’re telling me it’s important, it’s going to save lives. So let’s take a shot.”
Their goal was to make the law – which allows only life-saving abortions – less ambiguous for doctors who fear a felony charge if they’re accused of giving an illegal abortion.
With help from a “pro-life” leader, they worked out a proposal that passed the Republican-run legislature earlier this month.
House Bill 90 is Republican lawmakers’ first substantial update to Kentucky’s abortion ban since the U.S. Supreme Court overturned Roe v. Wade in June 2022. The measure lists several exceptions to Kentucky's ban, including:
- To remove ectopic or molar pregnancies.
- “Lifesaving miscarriage management.”
- Treatments for sepsis or hemorrhaging when an impending or current miscarriage leads to “a life-threatening infection or excessive bleeding.”
- To remove an embryo or fetus after a miscarriage if there’s no cardiac activity.
“I think it’s going to save lives,” Nemes told KyCIR after the bill passed.
But abortion rights advocates warn the legislation is stuffed with problematic terminology that could actually endanger patients. The changes could make it harder for doctors to defend their actions in court. And when an emergency abortion is warranted, the advocates say the bill could push doctors to induce preterm labor or do a hysterotomy – where they surgically cut into the uterus, like in cesarean births – instead of using a standard, and less risky, abortion procedure.
To learn how HB 90 may impact patients and doctors, the Kentucky Center for Investigative Reporting researched the legislation’s language, interviewed a national expert on abortion law and history, talked to lawmakers who worked on the bill and spoke with abortion rights advocates.
KyCIR examined two main changes the bill makes:
- It reclassifies legal, life-saving abortions to say they aren’t abortions at all even though, medically speaking, they still are.
- It says doctors should decide if an emergency abortion is needed based on their “reasonable medical judgment.” This affects how their decisions would be evaluated in court.
Could HB 90 push doctors to do more C-sections or induced labor?
House Bill 90 redefines life-saving abortions as legally permitted “actions that require separating the pregnant woman from her unborn child.”
The terminology echoes a recommendation by the American Association of Pro-Life Obstetricians and Gynecologists. The anti-abortion organization suggests saying “medically-indicated maternal-fetal separation” when referring to ending a pregnancy to save a woman’s life.
AAPLOG suggests avoiding the term abortion entirely because it’s “a vague term” and to instead call it “intentional feticide.”
But the American College of Obstetricians and Gynecologists, the leading professional association for OB-GYNs, says “maternal-fetal separation” isn’t a clinically accurate term. Abortion is, and it covers a range of procedures used to end a pregnancy, regardless of the reason.
ACOG, which opposes abortion bans, says “maternal-fetal separation” is “a misleading term used to disguise the fact that a person needs or has had an abortion or to imply that there is a medical intervention that is an alternative to abortion.”
Goldberg, the OB-GYN who worked on HB 90, is the legislative advocacy chair of ACOG’s Kentucky chapter. Goldberg and the head of the chapter declined comment for this story.
AAPLOG was established in the 1970s in opposition to ACOG’s guidance on abortion.
Mary Ziegler, a University of California, Davis professor and an expert on abortion law and history, said redefining abortion is intended to maintain “the pro-life talking point” that it’s never needed or justified.
She said the strategy essentially argues there’s no tension “between opposing pretty much all abortions and advocating for maternal health.”
“Because any of the situations where people would find it sympathetic to access an abortion turn out not to be abortion at all, but maternal-fetal separation,” Ziegler said.
Nemes said he understands the opposition to calling it separation instead of abortion.
“I think that’s a legitimate criticism, so far as it goes. But it’s only a criticism on semantics,” he told KyCIR. “It doesn’t cause any real issues.”
Abortion rights advocates disagree. They say it could affect what types of procedures doctors use when a life-saving abortion is necessary.
They point to the American College of Obstetricians and Gynecologists’ analysis that says abortion opponents use the term “maternal-fetal separation” to justify or mandate “performing medical procedures that carry more risk for the patient,” like cesarean sections or induced labor.
In the American Association of Pro-Life Obstetricians and Gynecologists’ “practice guideline” on “concluding pregnancy ethically,” the group suggests in emergencies that doctors consider doing a C-section or induced labor, instead of common abortion procedures like dilation and curettage, also called a D&C.
In another AAPLOG publication, the organization says “medically-indicated maternal-fetal separation” is “preferably done in a way that does not directly induce fetal death and respects the fetus’ bodily integrity (unless doing so would further endanger the life of the mother).”
Nemes and fellow Republican Reps. Nancy Tate and Kimberly Poore Moser worked together on Kentucky’s new legislation. They all told KyCIR HB 90 is not intended to urge doctors to do more C-sections or induced labor.
“Whether you call it an abortion or a separation of the fetus from the mother, it means the same thing in the context of what we are working on here,” Moser said. “It’s not medical terminology to say that, but it’s also not unclear.”
The trio of lawmakers say the updated rules aren’t supposed to be prescriptive, where doctors can only do procedures if they’re specifically named or can only treat conditions if they’re explicitly mentioned.
When a woman comes to a hospital and her life is in danger, Nemes said, “I want the doc to be clear in what he or she can do, and that’s take care of that woman. That’s what we tried to accomplish.”
HB 90 allows some specific treatments, like methotrexate for ectopic pregnancies or inducement or delivery for a miscarriage if there’s no fetal cardiac activity. But it also includes general terms, like “medically necessary intervention” or “medical procedure,” when describing what doctors can do if a life-saving abortion is warranted.
Tamarra Wieder, the Kentucky state director of Planned Parenthood Alliance Advocates, said it’s “telling” that the law refers vaguely to interventions instead of specifically referencing the D&C abortion procedure as permitted in life-saving emergencies.
“D&C is the procedure that would be standard care in many such instances,” she said.
The concern about doctors opting for emergency C-sections over common abortion procedures is not unique to Kentucky. In Louisiana, for example, a 2024 report by abortion rights organizations said health care providers discussed cases where doctors opted for C-sections over common abortion procedures despite higher risks for health complications.
Similarly, in Texas, researchers interviewed 25 health care providers and reported, in a 2022 journal article, that some said colleagues “resorted to using hysterotomy, a surgical incision into the uterus, because it might not be construed as an abortion.”
Ziegler, the abortion law and history expert, indicated it’s plausible to interpret “maternal-fetal separation” as discouraging or even restricting the use of D&Cs in certain emergency situations.
“And then the question again becomes, if it's not crystal clear, what are physicians going to do with it?” she said of Kentucky’s new legislation.
Ziegler is skeptical HB 90 will do enough to reassure doctors when the threat of felony charges still looms if they’re accused of giving an illegal abortion.
“Republicans in Kentucky have made pretty clear that this is not meant to be an exhaustive list, but if you’re a physician, what else are you going to treat it as, right?” she said. “It’s really hard to get physicians to risk their liberty and their medical licenses in a climate of uncertainty.”
Even for conditions the bill specifically lists as legal to treat with an abortion, Ziegler said doctors and their employers may remain reticent. To date, U.S. hospitals have been “very risk-averse.”
In recent months and years, reports have shown how abortion bans that threaten health care providers with severe penalties have resulted in preventable deaths and otherwise endangered women across the U.S.
Dr. Caitlin Thomas is a Louisville OB-GYN who signed a recent letter, along with 84 other health care providers, asking Democratic Gov. Andy Beshear to veto HB 90. Beshear did veto it Tuesday, but the legislature has enough votes to override him later this week and ensure the bill becomes law.
Thomas said the bill’s redefinition of abortion further stigmatizes it when it’s actually a necessary form of medical care. And that, in turn, feeds into the culture of fear doctors already operate under due to Kentucky’s ban.
She said the bill’s exceptions for removing molar and ectopic pregnancies seem clear. But she questions the bill’s exceptions for “lifesaving miscarriage management” and for treating sepsis.
“So when someone breaks their water before viability, that creates a situation that can increase someone’s risk of sepsis … That can be seen as a life-threatening situation,” she said. “But does this language necessitate sepsis before I’m allowed to intervene? Or can I intervene because of the risk of sepsis?”
If she or another doctor makes a judgment call that it’s legal to act but then gets accused of providing an illegal abortion, she worries HB 90 also will make judges the arbiter of “whether or not these life-saving emergencies were really emergencies.”
That’s because of another change in wording the bill makes. And this change, Thomas said, “makes me really nervous.”
The "reasonable medical judgment" standard for doctors
Kentucky law currently says doctors should use their “good-faith clinical judgment” to decide when an emergency abortion is necessary.
HB 90 changes that to “reasonable medical judgment.” And it defines that as “the range of conclusions or recommendations that licensed medical practitioners with similarly sufficient training and experience may communicate to a patient based upon current available medical evidence.”
The term “reasonable medical judgment” also appears in Kentucky’s trigger ban, which outlaws abortion unless a doctor deems it “necessary in reasonable medical judgment” to save their patient’s life.
Ziegler, the abortion law and history expert, said this diverges from the “good faith” standard, where judges’ evaluations hinge on what a doctor believed about their patient’s case.
“Were they just using a medical justification to perform an elective abortion, or were they actually convinced this was medically necessary, regardless of how other people may view the procedure?” she said.
“Reasonable medical judgment,” on the other hand, evaluates a doctor’s decisions based not on their sincerity but on if a reasonable doctor in the same circumstances would agree an abortion was necessary.
“That standard is a lot less deferential to physicians,” Ziegler said.
Ziegler said the “good faith” standard has a long history in abortion law, with many states’ courts relying on it before the U.S. Supreme Court legalized abortion in 1973.
In recent years, Ziegler said abortion opponents have advocated for using “reasonable medical judgment” instead of “good faith” as the standard.
Determining if a doctor’s actions were reasonable could turn into a “battle of the experts” in the courtroom, with the defendant and prosecution bringing in physicians with different viewpoints, Ziegler said.
Nemes told KyCIR it wasn’t their aim, as lawmakers, to make it harder for a doctor to prevail in court if they’re charged with breaking the abortion ban.
“It wasn’t intended to raise or lower the standard,” he said. “It was intended to clarify and say: As long as you’re acting within the realm of reasonableness of what other people, other OBs, would do if they were in your circumstance, then you don’t have to worry about any prosecutions or any losing of your license.”
Nemes said “reasonable person” standards like this are commonly used across categories of law. While there could be a “battle of experts,” he said, doctors just have to show their actions were within the realm of reasonableness for their profession.
A different abortion case remains unresolved over Kentucky
Tate, who worked on HB 90, said a looming legal battle over the constitutionality of the state’s abortion ban is on her mind. And she hopes the courts will look favorably on the way the legislature is updating the ban.
The ongoing lawsuit, filed last November by a Kentucky woman who was seeking an abortion, could end the state abortion ban.
Tate told KyCIR she’s “looking very anxiously” for this case to be resolved because of its potential to “undermine our state’s protection for the unborn children.”
The lawsuit alleges Kentucky’s ban severely harms women, but Tate said she thinks HB 90 will demonstrate the legislature is taking steps to ensure it doesn’t.
“And I’m optimistic,” she said. ”That the courts will view House Bill 90, again, as the legislative branch being very anti-abortion but yet, at the same time, being very pro-maternal health.”
