Opinion | A Doctor’s Life After Roe: ‘There Are Weeks When I Commit Multiple Felonies’: (original) (raw)

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elise boos

The only noise you will hear is if a helicopter lands, so I apologize.

lulu garcia-navarro

Not at all. What you’re going to hear is the fact that my dog is barking, and I’m going to have to go deal with that. So I’m really sorry. So give me —

elise boos

That’s OK. [LAUGHS]

lulu garcia-navarro

— one second. Not as important as a helicopter arriving with the patient, but — Milo, Milo, come here.

[MUSIC PLAYING]

Dr. Elise Boos is an OB/GYN in Nashville, Tennessee, and when we spoke recently, she was supervising the Labor and Delivery Ward at the hospital where she works. Dr. Boos specializes in complicated, high-risk pregnancies, and in the last year, doing her job has gotten really difficult.

After Roe fell, in Tennessee, all abortions became illegal, no exceptions, even for the life of the mother. Doctors who perform them anyway were knowingly committing a felony. When I spoke to Dr. Boos, the Tennessee legislature was in the middle of debating adding exceptions to the law, and Dr. Boos got involved in those efforts alongside a group of Tennessee doctors.

But that meant working with anti-abortion lawmakers who’d voted for the ban, and it posed a dilemma. Should she compromise on the larger fight for reproductive rights in order to save the lives of a few patients? From New York Times Opinion, I’m Lulu Garcia-Navarro, and this is “First Person.” Today, Dr. Elise Boos on Strange Bedfellows and Absent Allies. And a note, because Dr. Boos spoke to us on her own behalf and not as a representative of her institution, we agreed not to name the hospital where she works.

So Dr. Boos, we’re going to be talking today about the challenges you face trying to provide lifesaving care to pregnant patients in Tennessee. You’re an OB/GYN who specializes in complex family planning. Can you tell me what that means exactly and why you pursued that particular specialty?

elise boos

Yeah. So it’s a subspecialty that really focuses on the contraceptive and pregnancy needs of patients with complex medical conditions as well as abortion care, and it’s a specialty that I didn’t necessarily know that I was going to go into when I was starting residency.

So I did residency in New Orleans. I grew up in Louisiana in a large Irish Catholic family. That was rather progressive in many ways but traditional and conservative in others. And there was one patient in particular when I was a resident whose delivery really prompted me to want to get this training.

So it was a patient who had a fetal demise and had had many, many losses. And so her water had broken too soon, and she was about 20 or 21 weeks, too early for a fetus to be able to survive outside of the womb. And she came in, obviously, devastated and very much did not want to go through the labor process. Her labors in the past had been heartbreaking experiences for her, and she really wanted to be put to sleep, and have a D&E, and wake up, and have that be behind her, and not have to live through a labor process.

lulu garcia-navarro

And a D&E is dilation and evacuation?

elise boos

Yeah, so D&E is dilation and evacuation, and that’s the surgical abortion procedure that occurs in the second trimester. And we couldn’t offer it to her because we didn’t have anybody who could safely perform a D&E working in the hospital at the time.

And her cries while she labored and then the emotions that she had as she delivered, that never left me. And I think in that moment, I decided I was like, I need to be able to do this. And that’s really what prompted me to go and get the extra training because it was something that I felt was necessary and that I wasn’t able to get as a resident.

lulu garcia-navarro

You end up practicing in Tennessee when abortion was still legal. I’m sure you had patients who, nevertheless, opposed the idea, even when it might put their lives in danger. I’m curious how you approached those conversations.

elise boos

As a complex family planner, my goal is to support patients to make sure they are fully informed, and my goal is to understand what their values are. And my obligation to them is to support them in whatever they choose.

So there have been patients who will listen intently, who will gather all the information, and ultimately, make a decision that they want to continue the pregnancy, despite a 25 percent risk of mortality and a 50 percent chance of severe morbidity with a severely premature infant. They might, ultimately, decide that those risks are worth it. Who am I to decide for a patient what risk is appropriate for them, right?

lulu garcia-navarro

So it’s their choice, even at a risk to their own lives.

elise boos

Yeah, if a patient wanted to end a pregnancy, I am able to support them in that. If a patient wants to continue her pregnancy, that also is my job, and that’s also is my lane. I’m not here to promote abortion. I’m here to promote a patient’s ability to choose, and when they make that choice, my job is to help make that care as safe as possible.

lulu garcia-navarro

So your goal as a doctor is to support patients in whatever they choose, but then, of course, Roe v Wade fell last year. And in Tennessee, the decision about what to do was taken out of and your patients’ hands. What do you remember about the day the Supreme Court handed down its decision?

elise boos

I was operating. I was doing a hysterectomy, and someone walked into the operating room and said, I can’t believe they overturned the whole thing. And I burst into tears. I needed to be scrubbed out.

lulu garcia-navarro

You actually scrubbed out?

elise boos

Yeah, I could not see the screen. So we were doing a laparoscopic hysterectomy, and we were taking the uterus off the bladder. And the tears in my eyes obscured the screen to the point that one of my partners came and scrubbed me out. And I went, and I sat in the hall. And I crouched down, and I just cried because I didn’t know what we’d do next.

My immediate question was, how do I take care of patients? I had patients scheduled for abortion care The. Next week that, suddenly, I didn’t know if I’d be able to offer them abortion care. And I thought, how do I decide? Who decides? And how do I tell them?

lulu garcia-navarro

And that’s because Tennessee had a trigger ban on the books —

elise boos

Yeah.

lulu garcia-navarro

Which would make abortion illegal.

elise boos

So there were two pieces of legislation that were kicked into action with the Dobbs’ decision. The first was what we called our heartbeat bill. So Dobbs was on a Friday, and on Monday or Tuesday, we lost the ability to provide abortion care to any patient whose fetus had a heartbeat. And normally, that happens around six weeks, so that went into effect until August 25 when our Human Life Protection Act was triggered.

archived recording

This morning, abortions are no longer legal in the state of Tennessee for the first time in 50 years. The state’s trigger law goes into effect —

elise boos

The Human Life Protection Act made all abortion a class C felony, regardless of gestational age and regardless if the woman’s life was in danger.

archived recording

Thursday, attorneys are warning doctors can be charged no matter the circumstances.

I just want to underline this — what you’re saying is that there are no exceptions to Tennessee’s abortion ban. That means for rape, incest, nonviable pregnancies, or to save someone’s life.

elise boos

Yeah.

archived recording

A conviction is a class C felony, punishable by 3 to 15 years.

It gives doctors a potential defense if they performed an abortion to save a mother’s life using, quote, good faith medical judgment.

elise boos

It provided only for an affirmative defense, and an affirmative defense is on par with, if you killed someone and then claimed, oh, but it was in self defense, you have to prove that. You have to prove the reason why you did something, and that’s what an affirmative defense is. It says you are guilty until proven innocent or assumed to have committed the crime until you prove otherwise.

And we felt paralyzed. Is that person’s life worth going to jail for?

lulu garcia-navarro

Did you consider leaving? Did you hear other doctors think about leaving?

elise boos

Maybe against my better judgment, I didn’t [LAUGHS]: because my thought was like, who is going to stay and take care of these people? I have a very unique skill set. And I also — I’m training residents.

Do I demonstrate to them that, when things get tough, you leave?

Either I leave them or leave patients to fend for themselves, or I stay. And I demonstrate how I think medicine should be practiced.

lulu garcia-navarro

As a doctor, you’ve got all this medical training to help you make these difficult decisions about the best way to treat your patient, but now there’s this law on the books — no abortions. No exceptions. Can you tell me about the first time you broke that law?

elise boos

Yeah.

Oh, I’m trying to think of — I’m trying to think of the first time.

lulu garcia-navarro

There’ve been that many times?

elise boos

Oh, yeah. Yeah, there are weeks when I commit multiple felonies because it is not uncommon that pregnancy is dangerous.

I’ve had patients with ruptured membranes, who are septic and in the ICU. I’ve had patients in heart failure. I’ve had molar pregnancies, which is abnormal tissue that replicates and can metastasize to the brain.

And I will add — one of the real challenges in Tennessee is we have an inadequate definition of abortion. So for instance, an ectopic pregnancy in a fallopian tube, that’s an abortion in Tennessee. There was a case I was involved in where we denied abortion care to someone who had a cesarean scar ectopic pregnancy.

And is it possible for a cesarean scar ectopic pregnancy to possibly result in a live birth? Yes. It may be severely premature, but it’s possible sometimes.

But we also might lose the patient in the meantime. And so it was — if our only end game is attempting to get a live birth or to save the life of an unborn child, we are going to have people die. And I don’t know.

It’s just it’s a black and white law, but then, when you actually practice medicine, you realize, oh, it’s never that easy. And we’ve had a really hard time just making sure that necessary care gets provided. And sometimes we do a better job than others.

lulu garcia-navarro

It’s an incredibly difficult calculation that you’ve been having to make. As you said, the law technically offers you what’s called an affirmative defense, similar to arguing self defense, meaning that, if you’re charged, you can make the case in court that someone would have died had you not acted.

But I guess what I’m also hearing from you is that it’s not clear cut when someone is actually in grave danger. How do you decide when it’s serious enough?

elise boos

Oh, that is the million-dollar question. Yeah, how close to death’s door to someone need to be before an abortion is permissible in the state of Tennessee? Is it a 10 percent chance of death? Is it a 20 percent chance of death? Is it a 30 percent chance of death? When does the risk of death to the patient or the risk of impairment to the patient rise to the level that I or my peers are willing to commit a felony?

And no one has been charged, but that is the crux of this entire dilemma is like, who gets to decide? Is it a state attorney general? Is it the governor? Is it a district attorney? Is it 12 jurors, who are going to scrutinize the care that I thought was necessary and decided, nah, we didn’t think that the risk was great enough?

The tenets of medicine still exist. We’re here to do no harm, and we have to respect when a patient says, this risk is too much for me.

lulu garcia-navarro

As you said, nobody’s been charged yet, but if you were to be arrested, what was your plan if, all of a sudden, they had decided to enforce the law?

elise boos

I’ve had very frank and real conversations with my institution, and we have some assurances that, if we were to be charged with providing abortion care that was necessary to save someone’s life or prevent irreversible impairment of a major bodily function, that we would have the support of our institution in mounting a defense.

Not to say — I mean, that could cost me my medical license. It could cost me my ability to support my family.

But if you’re in private practice in a rural part of Tennessee, you want nothing to do with abortion care. You are intimidated to the point that you are going to withhold necessary abortion care because, if you’re charged, you might bankrupt your practice, trying to defend this.

Your medical malpractice does not provide support for challenging criminal charges. I suppose we have to suspend fear and assume that no one is going to charge us for saving someone’s life, but I don’t know if that’s true.

lulu garcia-navarro

So you’ve been providing care that technically puts you in legal jeopardy, and last fall, a handful of Republican state legislators, who voted for the trigger ban, started talking about how they may not have read the law carefully enough beforehand and that they wanted to, quote, clarify it.

archived recording

Rather than calling it changes or calling it a new bill, I prefer to call it a clarification of the bill. Did you read it thoroughly and understand it when you voted on it?

No, I did not understand what affirmative defense was, and to anyone, I apologize to that. I’m not a lawyer. Quite frankly —

lulu garcia-navarro

And you got involved in helping draft that new legislation, right?

elise boos

So myself and others in the institution, who provide care for critically ill women and women with pregnancy complications, began to look at, how do we draft language that is clinically appropriate that translates into this very gray world that is sometimes obstetrics?

lulu garcia-navarro

So essentially, you started working with anti-abortion politicians, the very people who created the situation in the first place.

elise boos

Yeah, well, they — it was going to need to be Republican sponsored if we were going to have any hope of reform and clarification, and we had several Republican lawmakers who were willing to spend a lot of political capital on the lives of women. And so we began very basically with re-envisioning what would be a definition of abortion that might be more in alignment with how we provide care.

lulu garcia-navarro

What specifically were you trying to make sure the bill included?

elise boos

Ideally, we wanted to provide a framework for what might rise to the level of a medical emergency, just to give a framework. No patient condition is ever going to neatly fit into a box or rarely does, but we simply wanted there to be a framework to demonstrate these are the kinds of conditions that may rise to a medical emergency. And it really seemed like, in the bill’s original language, we may have a chance of getting exceptions for both life of the mother, clarification ectopics, and lethal fetal anomalies.

lulu garcia-navarro

So nothing about elective abortion.

elise boos

No. We — no, nothing about elective abortion. The appetite and the political will for that here, there is none.

We did not think that elective abortion was on the table and, in fact, thought that aligning any of our aims with that would undermine our ability to make any incremental change.

[MUSIC PLAYING]

lulu garcia-navarro

After the break, the right to life puts its own stamp on the bill.

Dr. Boos, you said earlier that the lawmakers you were advising on new legislation around exceptions were willing to spend significant political capital on the lives of women, but in preparing for this interview, I was struck by the language that those lawmakers used in trying to make the case for them. They talked about needing exceptions in terms of someone’s future childbearing capacity —

archived recording

If you don’t act on some of these conditions when you discover, them you could leave a woman infertile.

lulu garcia-navarro

— as though a woman’s life only has value with respect to her ability to be a mother.

archived recording

And if you have an 11-year-old girl that gets pregnant, that little girl should not be forced to carry a pregnancy to where it may damage her internal organs to the point where she can never get married when she gets older and have children of her own. I just don’t think that that’s right —

lulu garcia-navarro

And that’s a really hard sentiment to swallow.

elise boos

Yeah. It is. It is. There are many people who will choose to not have children, and we should respect that, to not have pregnancies. We are much more than our ability to gestate.

lulu garcia-navarro

And so believing that, how were are you feeling by having to work with them if their rationale was so different from your own?

elise boos

[SIGHS]: I’ve struggled with that. I do worry that the sentiments with which it was sold are incongruent with the values I hold, both as a physician and as a woman. However, I’m not sure that we have the luxury of cherry picking who is willing to fight. These are the people in power at the moment.

lulu garcia-navarro

So how did the reproductive rights world respond to the legislation that your group was crafting with these Republican politicians?

elise boos

So the local Tennessee reproductive rights world really rallied behind this. Outside of Tennessee, we were really — we felt — it was hard. It was really hard.

When Dobbs came down and we were in such a dark place, I thought, oh my god, I’m sure that there are just so many brilliant people working on this. There’s got to be just a huge team of people who are going to swoop in and fix this, and I realized there’s not. No one came. No one challenged it.

It really felt like people had, from a national stage, turned their attention to other states.

There was a real lack of engagement and willingness to help us because many people didn’t see what we were asking for as being enough.

lulu garcia-navarro

Explain what you mean.

elise boos

Yeah. There are many organizations that wanted us to be fighting for the full restoration of reproductive rights.

Of course, I would love for that to have been the ask, but I’m also a pragmatist. And the reality is, at this moment here, incremental change is the thing that’s going to save people’s lives tomorrow. And this seemed like something we could get done, and it seemed like it could have real-world consequences, especially for critically ill patients.

lulu garcia-navarro

I can imagine that they were hesitant to cede the principle that people should have control over their own bodies and that they’re worried that framing this as a fight to save women’s lives is a sort of smokescreen, one that provides political cover to the actual issue for them, which is that this is a basic civil right, bodily autonomy. What do you make of that reasoning as to why they might have opposed this?

elise boos

I understand their reasoning, and I — there are moments when I’m grateful for it because someone needs to demand that these are basic human rights that we are owed. At the same time, for those of us who are trying to provide care, the stakes seem different. And so as we turned to national organizations to say, hey, we need help. We need insight. We understand that this is not what you’d be asking for.

And there are days when I’m really ashamed that this is what I’m asking for.

But I have to ask for something. So yeah, incremental change sucks, and the way that this law is currently written, there are so many things that I would change to it that I think are missing. It falls so short. But I also — it would have been nice to have help.

lulu garcia-navarro

You said that, some days, you feel ashamed, and I’m wondering how you’ve been received in the wider medical community. What have the doctors in other states made of what you’ve been up to?

elise boos

It’s been a really interesting back and forth with providers in other states.

People have said things to me like, Elise, I can’t believe you’re negotiating with these terrorists.

[laughs]

Looking in from the outside, it may look like we are throwing up our hands and giving up, but that is certainly not what it feels like.

lulu garcia-navarro

You went into this because you’d hoped you could be part of finding a narrow solution, despite what your peers might have thought. Can you explain where things stand now?

elise boos

So the right to life came out in opposition to a lot of the language in our bill.

archived recording

[GAVEL]: Good afternoon.

lulu garcia-navarro

And this is, of course, the anti-abortion group.

elise boos

Yeah.

archived recording

I’m Will Brewer. I’m legal counsel and lobbyist for Tennessee Right to Life. I come here to speak in opposition to this bill. They said that it shouldn’t be our good faith medical judgment. It needed to be a reasonable medical judgment, like there needed to be objective measures of how sick someone needed to be and how close to death they needed to be. — court of law. If a doctor were to abuse this statute, it would be virtually impossible to successfully prosecute that doctor. Once one doctor —

elise boos

They took issue with lethal fetal anomalies, really saying like, we don’t know what’s lethal and what’s not.

archived recording

There needs to be a certainty defined in this bill for what a fatal fetal anomaly is and how certain the doctor is that it is occurring. There needs to be more certainty —

elise boos

In fact, the Right to Life lobbyist threatened members of the committee.

archived recording

So no, I would not consider this a pro-life law, and in discussions with our pack, they have informed me that they would score this negatively for those members that wish to vote for it.

So we’ve got one more member that would like to speak, and that would be Speaker Sexton. Thank you, Madam Chair.

I’m down here because something happened that I’ve never experienced in my time down here, which was somebody on a committee testifying, tried to intimidate our members by telling them they’re going to score them a vote.

elise boos

And I was so hopeful as I watched Speaker Sexton really reprimand and scold him for, how dare you walk into my Capitol and threaten my lawmakers?

archived recording

To try to intimidate this committee to go a certain direction is uncalled for.

elise boos

And I thought, oh my god, we have a chance at this.

And from there, things really quickly unraveled. So the Right to Life really mounted an amount of pressure on lawmakers that we just — we couldn’t counter.

archived recording

Representative Esther Helton-Haynes admitted last week in committee that Tennessee Right to Life was behind this change at some level.

This is the —

lulu garcia-navarro

The version of the bill that the Right to Life supports does make it possible for you to save patients’ lives without committing a felony.

elise boos

Mhmm.

lulu garcia-navarro

But when it comes to someone who was raped or lethal fetal anomalies, as you’ve been discussing, abortions are still criminal.

elise boos

Yeah.

lulu garcia-navarro

Do you want this version to pass? Would it do what you had set out to accomplish?

elise boos

That is such a complicated question of do I want it to pass. Yes, I want something to pass. No, I don’t want them to think they’ve fixed this. And then the momentum for change, it ends.

The answer, yes, do I want there to be exceptions as opposed to an affirmative defense? Yes, that’s something we set out for. Ectopics and molar pregnancies, yes, that’s something we set out for. But I do think it falls far short of what we thought was the bare minimum of how we could practice safe medicine in the state of Tennessee.

lulu garcia-navarro

Dr. Boos, having seen everything that’s happened, do you worry that, by engaging as you have in trying to amend this legislation, you’ve accepted its terms that almost all abortions are unacceptable except in very rare cases? Have you thought about how maybe the fears of the people who initially opposed you have come true?

elise boos

Every day.

I’m willing to settle for stuff I would have never thought I was willing to settle for. There is a limited amount of fight inside of me if I’m still going to provide care. And I don’t — like, I don’t know — I don’t know how —

I don’t know how to honor all of those things.

I don’t know how to honor my ideals. I don’t know how to honor my patients. I don’t know how to honor my colleagues, my family. But I do — I believe we can slowly make change.

My big question for everyone — and I’ve literally been texting everybody the past few days and saying, what’s next? Like, where do we go from here? How do we organize ourselves in a way where we can truly be effective?

And I worry as well that our rights will be further eroded. I would not put it past the Tennessee legislature to try to restrict the ability of Tennessee residents to leave the state to seek abortion care. I worry about patients who self manage their abortions with medications. I am genuinely concerned that this is nowhere near over.

This is not a victory. This is a momentary pause, I hope, so that we can reorganize, regroup, reassess, and make meaningful change in the future because, otherwise, I don’t know. I’m going to be pretty embarrassed to say that I practice medicine in Tennessee during these years, and I denied care, and I was intimidated, and people had bad outcomes on my watch. I have a lot to make up for.

lulu garcia-navarro

Dr. Boos, I want to let you get back to your patients, and thank you so much for your time.

elise boos

No, thanks for having me.

[MUSIC PLAYING]

archived recording

Next bill, Miss Clerk.

Item 10 Senate Bill 745 by Senator Briggs on third and final consideration. Mr. Speaker, the House bill is on the desk.

lulu garcia-navarro

On Wednesday, the bill went for a final vote in the Senate.

archived recording

Member number 2, filed timely by Senator Lamar. Thank you, Mrs. Speaker. I’m presenting an Amendment 2 HB 883 today because when I talk —

lulu garcia-navarro

During the floor session, State Senator London Lamar, a Democrat from Memphis, pleaded for lawmakers to broaden the exemption language, saying that, under this version of the bill, doctors are still going to be left wondering if they might be prosecuted for providing life-saving care, putting women at risk.

archived recording

And so what I hope is, while I know this is a baby steps, that I hope that go home after this session and really think about it if it was you because it’s me. And I just don’t want, when this bill passed, to think that you’ve done anything for women.

lulu garcia-navarro

The bill went to a vote unamended.

archived recording

Three will vote aye when the bell rings. Those opposed will vote no. Let every member cast their vote when the bell rings.

[BELL RINGS]

Has every member voted? Does any member wish to change their vote? Mr. Clerk, take the vote.

Ayes 26, one nay.

House Bill 83, having received a constitutional majority, I declared passed [GAVEL]:: without objection, the motion reconsidered [GAVEL]:: is tabled.

lulu garcia-navarro

“First person” is a production of New York Times Opinion. Tell us what you thought of this episode. Our email is firstperson@nytimes.com, and please leave us a review on Apple Podcasts. This episode was produced by Olivia Natt and Rhiannon Corby. It was edited by Stephanie Joyce and Kaari Pitkin, mixing by [INAUDIBLE] Shapiro, original music by Isaac Jones, Pat McCusker, and Carole Sabouraud. Fact checking by Will Pichel.

The rest of the “First Person” team includes Anabel Bacon, Wyatt Orme, Sofia Alvarez Boyd, Derek Arthur, and Jillian Weinberger. Special thanks to Kristina Samulewski, Shannon Busta, Allison Benedikt, Annie-Rose Strasser, and Katie Kingsbury.