CLEVELAND — By June 24, David Burkons had spent as much time as a doctor could in the post-Roe world. The Cleveland native graduated the University of Michigan Medical School in 1973, the same year the landmark decision ensuring the right to an abortion was handed down by the U.S. Supreme Court.
Everything changed for the obstetrician — and for thousands of Ohio women and girls — on June 24. That’s when the current Supreme Court handed down Dobbs v Jackson Women’s Health. It threw out Roe and gave states the power to ban abortion altogether.
The consequence, Burkons said, has been chaos — and worse health care for his patients.
Attorneys general in some states with severe abortion restrictions on the books gave notice that they would begin enforcement of those laws in a few weeks or a month. But in Ohio, Attorney General Dave Yost raced to the courthouse the day Dobbs was announced and a restrictive state law that was passed in 2019 was in force by that evening.
Under the law, abortions were suddenly illegal after about six weeks of pregnancy — four months earlier than they had been and at a point which about a third of women and girls don't yet know they’re pregnant. The law, Senate Bill 23, allows limited exceptions to protect mothers' lives and health, but it makes no exceptions for victims of rape and incest.
In sworn affidavits, doctors and other workers at Ohio abortion clinics described the scene as women and girls suddenly learned they couldn't get the abortions they were planning on.
Many cried inconsolably. Several threatened suicide. One woman said she’d drink bleach. A high school student who couldn’t stop vomiting was hospitalized and placed on suicide watch. One woman said she'd try to end her pregnancy by hurling herself down some stairs, according to affidavits filed by Burkons and others.
New arena
In an interview last week, Burkons, 75, said his and his colleagues' lives were also upended, suddenly and radically.
In 2014, he founded the Northeast Ohio Women's Center, which has clinics in Cuyahoga Falls, Shaker Heights and Toledo.
SB 23 says that doctors who violate the law can lose their medical licenses and be charged with felonies. So one of the first steps he took in response to it was to arrange a meeting with a criminal lawyer.
"When we were leaving, the attorney said 'Doctor, I hate to tell you this, but you've entered my world,'" Burkons said. "'You have to assume that every patient you have, every person you're dealing with, is wearing a wire. And you don't know who in the hospital is going to say — maybe because they honestly believe that you're doing (illegal) abortions or they don't like you, or whatever — they're going to turn you in.'"
Burkons added, "Physicians are very, very worried about that."
The ramifications for maternal health — especially in emergency situations — were almost immediate, he said.
Experts say that’s true nationally.
"'Emergency' exists on a continuum, and prevention of anticipated critical events is not explicitly addressed" in restrictive abortion laws such as the one passed in Texas, doctors Andrea MacDonald, Hayley B. Gershengorn and Deepshikha Charan Ashana wrote last week in the Journal of the American Medical Association. "It is no longer clear whether physicians can intervene to prevent progression to critical scenarios, as is the standard in critical care medicine, or instead, if a physician must withhold evidence-based care until a patient develops an unambiguous emergency with significantly increased morbidity and mortality, such as septic shock and multisystem organ failure."
Burkons said he's witnessed the problem in Ohio — in multiple ways.
"We've had several people who have been very, very poorly treated for inevitable miscarriages," he said. "They come in. They're bleeding, they're cramping, but because they still show (fetal cardiac activity) the facility is afraid to do anything about it and you have to wait until they really start bleeding heavily. It's caused people to have to have transfusions where they could have had a five-minute procedure and the whole thing would be done."
Burkons said he knew one Ohio woman who had to sit for two days in her bed and wait for her miscarriage to complete itself.
"And this is just because somebody is afraid that people are going to report them to the state board, or the prosecutor or who knows where," he said. "So this has impacted a woman's ability to get good medical care."
Other emergencies
Then there are "ectopic" pregnancies in which a fertilized egg implants somewhere outside the uterus, typically the fallopian tubes. Such a pregnancy can't succeed and if not treated, it can cause the mother to bleed to death.
When Burkons' clinics detect such a pregnancy, they send the mother to the emergency room.
"The problem is they get to the emergency room and (doctors) can't see anything in the uterus, and physicians are very, very concerned," Burkons said. "The medicine you use to treat the ectopic pregnancy also is a drug that can cause an abortion of an intrauterine pregnancy. So they're very afraid until they can prove there's an ectopic pregnancy by seeing something in the tube on the ultrasound and then it becomes the case that you have to do surgery before it actually ruptures and becomes a crisis."
In his affidavit, Burkons reported two such pregnancies at his clinics during the 11 weeks SB 23 was in force.
"In one case, the fallopian tube ruptured, and surgery (was required) rather than medical management which would have been possible if they had acted sooner," he wrote.
The issue boils down to what doctors see as the vagueness in the exceptions Ohio's and other state laws make to protect mothers' lives and health. For example, one of those exceptions in Ohio requires a "medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function."
What, exactly, does that mean? And if you were a doctor, would you bet your medical license and possibly your freedom on your assessment of it?
"I had a busy obstetrics practice for many, many years and there are women who come to you early in pregnancy and you know it's going to turn out to be very, very difficult," Burkons said. "They've got diabetes, they've got heart disease. They've already had a horrible pregnancy and you know this is going to be very, very bad. But can you say, 'OK, they're going to die?' No. Can you say they're going to be very sick? Yes. How sick? Who knows?"
He said that based on his understanding of SB 23, "Once they get further along in pregnancy you're going to have to wait until they get really, really sick before you can say let's terminate this pregnancy — and it's going to be a very fraught procedure at that time."
The authors of the JAMA article put numbers to one way in which that can be very fraught — and become more so as time passes.
"Between 2% and 14% of critically ill patients (all patients, including men and women) die in the hospital, and each hour of delayed care increases a patient's likelihood of dying by approximately 4%," they wrote. "Therefore, the longer emergency abortions are delayed, the greater the risk that lifesaving interventions might not be effective and pregnant individuals could experience morbidity and mortality."
Harsh realities
Just a week after the Dobbs decision was handed down came news that a 10-year-old rape victim from Columbus was forced to go to Indiana for an abortion because she couldn't get one in Ohio.
Yost was incredulous, going on Fox News to doubt the girl's existence only to see an arrest made in the case a few days later.
But through nearly a half-century of practice, Burkons has learned that while such realities might be shocking, they're hardly surprising.
"It's not surprising that this happened," he said. "It's just rare because physiologically, the large majority of 10-year-olds are not able to have a baby."
He added, "The youngest I've ever done was 11. I've certainly done numerous 12 and 13-year-olds. (Pregnancies among 10-year-olds are) not a common phenomenon. I'm not saying that's because there's not a lot of child molestation that takes place, but because I would say the majority of 10-year-olds are not endocrinologically capable of having a child. They may be raped, but they haven't developed to the point where they can have a child."
Yost, and seemingly DeWine, have claimed that the exceptions built into the Ohio law would allow 10-year-old rape victims to get abortions. But several Ohio obstetricians have told the Capital Journal that being very young is just one of an array of conditions that heighten the risk of pregnancy in ways that aren't covered by SB 23's exceptions.
Burkons agreed with his colleagues.
"For somebody to say this 10-year-old girl, her life was physically threatened by carrying the pregnancy, that’s wrong," he said. "What it would have done to her social and psychological development, that’s a whole other issue. But she would have had a very, very hard time finding a physician in Ohio who would be willing to touch this with a 10-foot pole."
Another harsh — and even more widespread — reality might be the reason why so many women and girls want abortions. Some are victims of sexual violence, but many more might just generally be desperate.
Blacks make up about 13% of Ohio’s population, and they're nearly three times as likely than Whites to live in poverty.
Those two facts appeared to play a role in last year's abortion numbers. Despite making up such a small portion of the population, Black women and girls got 9,446 — or nearly half — of the 20,716 abortions performed in the state in 2021, according to data from the Ohio Department of Health.
Other statistics from the report also suggest that women choose abortions because they don't think they have the money and other support they need to care for a baby. Nearly twice as many, 13,319, women who got abortions already had children than those who didn’t, 6,937.
To Burkons, there seem to be policy implications.
"If there were a better social safety net, maybe some of these people would decide to have the baby," he said. "That may or may not be true, but I find it very interesting that in general, the people who are against abortion are also against increasing the social safety net."
He added that assertions by some in the anti-abortion movement that the procedure is commonly seen simply as a convenient means of birth control is wrong.
"I think it's a decision that some women make very easily, but most women really, really think about it," he said. "It's not something people do out of convenience. It's something people do out of desperation more than anything else."
More health implications
In addition to being much more likely to be poor and to get abortions, Black women have another tragic distinction: They're also three times more likely to die during childbirth and its immediate aftermath.
In a second JAMA article last week, doctors Linda Brubaker and Kirsten Bibbins-Domingo said restrictive laws such as Ohio's will only make things worse.
"Legal interference with evidence-based abortion counseling and care will disproportionately affect Black and Hispanic individuals as well as all persons for whom low income, lack of health insurance, or other life circumstances (eg, related to employment, transportation, or family care responsibilities) pose a barrier for access to legal abortion services," they wrote. "Current estimates are that two-thirds of maternal deaths are preventable; the proportion of preventable maternal deaths will increase following the Supreme Court decision in Dobbs v Jackson Women's Health Organization."
A Cincinnati judge has paused enforcement of SB 23. But with DeWine's blessing, Yost has challenged the stay, and depending on who wins election to the Ohio Supreme Court, the law could well be back in force early next year.
In addition, Ohio is poised to consider even harsher abortion restrictions in the lame-duck session later this year. But DeWine and Yost so far have refused to publicly discuss controversial provisions of SB 23, much less whether they support legislation that goes even further.
Burkons said the officials do the public a disservice with their silence.
"They're the people who actually make the decision," he said. "We're told that in the lame-duck session there's going to be a law passed that outlaws abortion. And the governor has been asked what his feelings are, but he won't answer whether he would sign that bill. The attorney general hasn't said anything about whether he would enforce it or not. I think that's something that people on either side have a right to know."
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