Why KY’s largest doctors group didn’t take a stronger stance on abortion after fall of Roe
Less than two months after federal abortion protections ended and Kentucky’s near-total abortion ban became law, the state’s largest medical association was poised to take an unambiguous stance on abortion access for the first time in its history.
In Kentucky, the termination of a pregnancy is illegal except when the life of a pregnant person is threatened. But that caveat, vaguely defined in the trigger law, has caused confusion in the medical community, as the Herald-Leader reported in August.
It’s a friction playing out for many physicians in states across the country, where largely GOP-backed abortion laws disregard not only evidence-based health care, but physicians’ ethical duty to care and advocate for the wellbeing of their patients.
In a state like Kentucky, where broad support of those laws is often buttressed by Christian doctrine rather than peer-reviewed research, many doctors are pinned between their ethical obligation to publicly advocate for patients, and a need to compromise and avoid alienating the political party in power that passes those laws. Kentucky’s criminal penalty for violating the trigger law adds another layer of reluctance to speak up, doctors said.
Now, Kentuckians are looking to physicians to cut through the political jargon, religious ideology and misinformation swirling around abortion access, and weigh in as health care professionals, especially with Constitutional Amendment No. 2 on the ballot in November. If passed, it would remove a constitutionally-protected right to an abortion.
But the opportunity to proclaim abortion access as an essential part of health care, exclusive to the relationship between patient and medical provider, was largely sidestepped in late August during the Kentucky Medical Association’s annual meeting.
When presented with multiple evidence-based proposals, KMA’s governing body chose not to adopt most of the policy changes that would’ve provided medical clarity from experts on the importance of abortion access in a state that has all but eliminated it.
The reason, according to half a dozen physician KMA members interviewed for this story, was largely political, and an attempt to strike a balance between competing opinions. While doctors said restoring access to the full spectrum of reproductive health care is still their end goal, KMA sacrificed its pointed vocal opposition to laws not rooted in health care in order to preserve its working relationship with the Kentucky General Assembly.
But ahead of a ballot question that, if passed, would limit judicial oversight of abortion laws and give greater power to the Legislature, and as lawmakers continue spreading misinformation that directly contradicts a medical understanding of abortion, it’s questionable whether that working relationship between doctors and lawmakers is cooperative.
Doctors forced to ‘violate’ their patient care duty
KMA members convene once a year to discuss and modify current policy and review new proposals. Any sitting member can propose a new policy for consideration, KMA staff said.
Each proposal enters a maze of deliberations and review. After the association’s reference committee hosts an in-person public forum at the meeting where members can openly deliberate, a report from that forum is then presented to the House of Delegates, a group of more than 100 doctors who ultimately vote on what to adopt.
Less than 30 days ahead of the August 26-28 meeting, Louisville and Lexington doctors submitted five policy resolutions related to abortion.
Three of the five were overtly critical of the Kentucky state legislature for banning abortion in all cases except medical emergencies by way of a trigger law. Doing so has forced doctors to “violate” their responsibility to care for patients by “severely limiting reproductive care for women in Kentucky,” said the first resolution from the Lexington Medical Society, “Protecting Appropriate Care for Patients” read.
Taking clear aim at lawmakers, doctors urged KMA to formally declare “that the intrusion of non-medical organizations on the privacy of reproductive health decisions between a patient and her physician be opposed by the KMA,” read a second resolution from the Greater Louisville Medical Association, “The Fallout of Banning Abortion in Kentucky.”
The stakes are so high, they said, that the association should publicly support lawsuits filed that are “necessary to block the implementation of newly enacted state and/or federal laws that restrict the privacy of physician-patient relationships,” doctors wrote in the third resolution. So far, Kentucky’s two outpatient abortion clinics, as well as a group of Jewish women in Louisville, have sued the state in an attempt to strike down the trigger law and a six-week ban, also known as a fetal heartbeat law.
But KMA’s governing body, composed of dozens of doctors across medical specialties, chose not to adopt any of these three biting policy statements, according to KMA records and interviews with members.
In lieu of the three, KMA adopted a fourth proposed policy that doesn’t mention the word abortion. The association also adopted a fifth, “Improving Maternal Health,” that does not directly call out Kentucky lawmakers or specific aspects of state laws, but broadly says KMA will “advocate for improved reproductive health care and resources” for Kentucky women.
A KMA spokesperson said annual meeting debate proceedings are private. The member list for the House of Delegates is also “confidential,” as is the list of doctors who attended the conference. What’s public are the proposed and finalized resolutions, and KMA’s statewide online directory of members.
The Herald-Leader reached out to 19 KMA members for this story. Six agreed to be interviewed. Each helped author the unadopted resolutions, participated in their debate at the annual meeting, or cast votes.
They told the Herald-Leader that, despite the consensus among OBGYNs on the importance of abortion access, there is division within KMA over public advocacy of reproductive rights. Some of that hesitancy stems from religious convictions and political beliefs among doctors outside that specialty.
But a prevailing reason KMA didn’t take a stronger public stance was fear that lawmakers, seeing it as a slight, would refuse future input from the association on abortion policy.
During the deliberation portion of the annual meeting, Republican Sen. Ralph Alvarado, a family doctor in Winchester and a KMA member, was matter of fact in his warning: the Legislature would be much less inclined to work with the KMA if it publicly bucked GOP lawmakers and their abortion laws, according to three people in the room who said it sounded threatening.
Alvarado, who ran as former Gov. Matt Bevin’s re-election running mate in 2019 and is co-chair of the Legislature’s Interim Joint Committee on Health, Welfare and Family Services, publicly celebrated the fall of Roe v. Wade, calling it “an answer to countless prayers.”
In a statement, Alvarado said he felt “uniquely positioned, qualified and obligated to offer my consultation” at the meeting.
Alvarado said he “expressed concern that the resolutions in their original form were improper because the language took a position on a contentious topic, dividing the public and the medical community.”
He said he spoke “plainly about how an effective, collaborative working relationship between KMA and the General Assembly could and should occur,” adding that the association “cannot and should not be defined by a single policy issue.”
After a debate, the resolutions “took a more neutral position,” one that “better reflects current KMA members’ views,” he said.
Dr. Jeffrey Goldberg, a gynecological oncologist and legislative advocacy chair for Kentucky’s chapter of the American College of Obstetricians and Gynecologists, said just because certain resolutions weren’t adopted “doesn’t mean we reject the science behind that position. Far from it.”
But since the goal is persuading people with differing opinions — in this case, most lawmakers — that abortion is decidedly health care, “As a physician in a clinic and advocating in the legislature, I have to figure out how to (convince) people who disagree to come around to seeing what the evidence shows.” This approach, he said, includes more than just being “insistent with my point of view in an adversarial system.”
State abortion laws causing ‘significant challenges’
KMA’s reluctance to cast unwavering opposition to Kentucky’s abortion laws sets it apart from the American Medical Association, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and dozens of others. Each national group has offered clear statements decrying attempts to restrict reproductive health care access and the levying of criminal and civil penalties against violators.
Some Kentucky doctors have individually taken to social media to oppose the abortion ban and the proposed constitutional amendment while dozens of others have donated tens-of-thousands of dollars to Protect Kentucky Access, a group working to defeat that amendment. But collectively, they’ve been mum.
Doctors in other states have been more assertive. Earlier this month, more than 700 doctors in Tennessee penned a letter to the Tennessee Legislature asking lawmakers to “reconsider” their trigger law, which “forces health care providers to balance appropriate medical care with the risk of criminal prosecution,” doctors wrote. South Carolina doctors did the same thing in September.
In mid June, at its annual meeting in Chicago, the American Medical Association publicly declared abortion a “human right,” with “100% support” from Kentucky’s official delegation, said Dr. Coy Flowers, a Lexington OBGYN who oversaw that local support. He’s one of 14 OBGYNs nationwide to serve as an American College of Obstetrics and Gynecology delegate to the AMA.
It’s not as easy back home in Kentucky, though, where it’s a “game of chess, not checkers in terms of politics and public advocacy,” Flowers said.
Flowers said even though KMA’s approach is so far quieter, the needle is moving internally. The AMA vote, and the fact that KMA “actually debated” these resolutions at its meeting and chose to “modify arcane abortion policy” that dated back to 1973 shows progress, he said. “But we have a long way to go.”
While taking an assertive stance on abortion restrictions would’ve fit well within KMA’s purview — the association’s role, at its core, is “advocacy for physicians, medicine and the community at large,” KMA Executive Vice President Patrick Padgett said — its role is not to translate a law.
But since Kentucky’s abortion ban went into effect this summer, very little has been clarified by lawmakers, the Cabinet for Health and Family Services or Attorney General Daniel Cameron, to help doctors decode the state’s cryptic trigger law.
Kentucky’s ban forbids abortion in all circumstances, including in cases of rape and incest, except to prevent the death of a pregnant person, a “substantial risk of death due to a physical condition,” or “serious, permanent impairment” of a pregnant person’s “life-sustaining organ.”
The law doesn’t define these terms, and no detailed legal guidance exists on the range of conditions for which an abortion is medically necessary even if a pregnant person’s life is not imminently threatened. This is part of the problem, and potentially another reason for KMA to more strongly assert itself publicly, doctors say.
“The breadth and scope of our understanding of complications in pregnancy on both the maternal and fetal side are not reflected in our current laws,” said Dr. Amy Kimm, a Louisville OBGYN who regularly works with pregnant patients who need acute care. It’s well documented that abortion bans impact how physicians treat pregnancy loss across the board.
“There are so many ways that we use abortive procedures and medications in the course of normal OBGYN care, and it’s definitely not to give elective abortions in the third trimester,” Kimm said. “Unfortunately that’s not what the law is preventing us from doing. It’s preventing us from doing normal, obstetric care.”
Since a bill adding more abortion restrictions took effect in the spring and the near-total ban this summer, many patients have been denied health care and forced to go out of state for medically-necessary abortions, according to doctors who’ve shared stories with the Herald-Leader in recent months.
After KMA’s annual meeting, Goldberg, as legislative advocacy chair for Kentucky’s chapter of ACOG, told lawmakers in an email that the state’s abortion laws were causing “significant challenges in providing healthcare to women in Kentucky.”
The message, obtained by the Herald-Leader, includes a list of real-life medical scenarios that Goldberg’s colleagues have compromised treatment for because of “interference” from the abortion ban and a law Republicans passed this spring that adds more layers of regulation.
For example, many people have a pre-existing medical condition that gets worse during pregnancy, like heart, kidney or lung disease, or lupus. But it’s “unclear where certain common scenarios meet the legal definition” of a medical exception under Kentucky’s ban.
After Goldberg sent that message to lawmakers, Cameron, a defender Kentucky’s anti-abortion laws, issued an October 26 advisory to clarify the scope of the ban.
Cameron said the trigger law doesn’t apply to in vitro fertilization, and his office wouldn’t prosecute doctors who provided abortive procedures as treatment for miscarriages, ectopic pregnancies, or to treat preeclampsia — when a pregnant person develops high blood pressure that can cause major health issues, even death.
But Cameron didn’t provide clarification on a litany of other medical conditions and treatments impacted by those laws, including many mentioned by Goldberg in his letter.
Goldberg said he’s glad Cameron weighed in, but it goes to show how confusing Kentucky’s ban actually is.
“It’s unclear enough that it was necessary for the Attorney General’s office to issue clarification about his interpretation of the law,” he said. “I’m pleased he chose to do so, but the fact that it was necessary illustrates its vagueness.”
KMA ‘shouldn’t be scared’ of lawmakers
Meanwhile, sitting Republican lawmakers continue perpetuating disinformation.
Along with a misleading television ad from Yes For Life, the campaign hoping to pass Constitutional Amendment 2, Republican lawmakers like Rep. Nancy Tate, R-Brandenburg, and Sen. Whitney Westerfield, R-Crofton, have spread misleading and false information about abortion and the impact Kentucky’s laws are having on doctors’ ability to care for patients.
Both have claimed that it’s a goal of abortion-rights groups to allow late-term abortions up to the moment of birth. The very idea, as a medical practice, is a “complete fallacy,” Goldberg said, calling the claim a “scare tactic.”
Still, doctors have not denounced such claims with a unified voice. The only policy explicitly mentioning abortion that was adopted by the KMA at its August meeting — “Improving Maternal Health” — doesn’t directly address the General Assembly or its laws. But it does note that “physicians have an obligation to protect and save lives and respect all people’s privacy. Preventing the right to abortion defies this oath by increasing maternal mortality and dehumanizing women.”
The official resolution KMA adopted in lieu of the three strongly-worded proposals does not mention “abortion” or “reproductive health care,” but urges general passage of health care policy that’s “evidence-based.”
Citing agreement between national medical associations that “legislative interference in medicine weakens” the doctor-patient relationship, KMA “encourages” laws that preserve that relationship and calls for the KMA to “oppose criminal sanctions” against health care providers.
After Sen. Karen Berg, D-Louisville, a radiologist and KMA member, cast a yes vote on this resolution at the annual meeting, she walked up to a fellow member to make something clear going forward.
“The accepted reality shouldn’t be to “toe a political line” and kowtow to laws that “don’t have anything to do with medicine,” Berg recalled saying. “KMA should not be scared of the General Assembly.”
This story was originally published November 3, 2022 at 10:00 AM.
