Kentucky’s 20-week abortion ban: A ticking clock on a complex pregnancy

When Heather Hyden learned that she was pregnant, she was overjoyed. Hyden wanted to have a child with her partner, Jimmy Earley, and the pair was thrilled to bring a new person into their community in Lexington, Kentucky.

But on December 5, 2016, when Hyden was about nine weeks pregnant, the couple learned that there were complications. During their first ultrasound, they found that their baby had a full body edema: fluid surrounding the entire fetus. The doctor said they could do tests in the coming weeks to find out more.

“The doctor came in and barely explained anything,” Hyden said. “I was devastated. I just felt like everything was falling in on us.”

Every few weeks brought more tests that gave them some new information but often left the couple feeling like they had even more questions.

At 11 weeks pregnant, the couple learned that their baby had a cystic hygroma, a cyst or large pocket of fluid surrounding its head and back. In early January, at 14 weeks pregnant, they learned that the fluid had moved inside the fetus and was surrounding the heart and lungs. This condition is known as hydrops fetalis, which is a buildup of fluid in two or more areas of the fetus. Hyden said she was told her unborn baby was effectively experiencing heart failure.

From the first indication of complications, the couple wasn’t sure whether the baby would make it. Still, they kept testing and hoping for the best. But at the 14-week point, in early January, it became clear that the baby most likely would not survive.

Hyden’s doctor presented her with a few options, both of them uncomfortable. She could wait a few weeks to see whether she would have a miscarriage, which would not require an expensive medical procedure and would happen naturally. Or she could have an abortion.

But another unexpected obstacle presented itself: Just as they learned about the hydrops fetalis, Hyden and Earley found that lawmakers in Kentucky had introduced new legislation about abortion. Because Hyden was uncertain of her baby’s condition, she began to pay attention.

One piece of legislation, Senate Bill 5, banned abortions at or after 20 weeks and included exemptions only in situations in which the mother’s life is at stake. Even in those cases, it required that the doctor providing care consult with two other doctors unrelated to the patient’s care before they can move forward with the procedure. It did not include exceptions for cases in which the fetus’ life is at stake or cases of rape or incest.

Within days, the bill had passed and was signed into law.

As her pregnancy ticked closer to 20 weeks, Hyden wasn’t sure whether she would need an abortion. There were medical costs to consider: Hyden’s insurance does not cover abortion procedures, and there’s only one open abortion clinic in Kentucky. It’s located in Louisville, about 80 miles from where Hyden, 30, and Earley, 43, live.

There were still tests underway too, and the quiet hope that their baby’s condition would turn around.

What she did know: If there wasn’t a resolution, they would have only weeks to make a decision for themselves.

State senator: 20-week ban ‘seems very humane’

Kentucky isn’t the first state to pass a law prohibiting abortions at or after a woman is 20 weeks pregnant. Nebraska passed similar legislation in 2010, and 12 states have followed suit over the past six years, according to NARAL Pro-Choice America.

In October, the US House of Representatives passed a bill that would criminalize abortions after 20 weeks of pregnancy across the country. The House passed similar bills in 2013 and 2015, but they didn’t become law. This time around, it has the support of the White House.

The House bill includes some exceptions, such as if the mother’s life is at risk or in cases of rape or incest. Still, it would prevent most women from getting abortions after 20 weeks of pregnancy.

Legislators behind these bills and anti-abortion advocates argue that 20 weeks, about halfway through the second trimester of a pregnancy, is when a fetus starts feeling pain. The Kentucky legislation noted that “the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization.”

Kentucky state Sen. Joe Bowen, one of Senate Bill 5’s sponsors, found its 20-week limit reasonable.

“The 20-week abortion ban seems very humane to me,” he said. “At that stage, you know, from the information that I have, that’s when a baby starts to have senses. … If they could potentially sense pain, at that juncture in a pregnancy, that even compounds my strong feelings of why we would need to do something like this.”

Major medical studies largely disprove the claim that fetuses start to feel pain when the mother is 20 weeks pregnant. A 2005 analysis published in the medical journal JAMA concluded that fetal pain before the third trimester, which starts at 28 weeks, was unlikely. A 2010 review by a panel at Britain’s Royal College of Obstetricians and Gynecologists stated that most neuroscientists believe the cortex, an area of the brain, is necessary for a fetus to feel pain; the brain is not formed until 24 weeks.

“The problem is that, number one, we don’t have any proof that babies feel pain at 20 weeks, and number two, we aren’t taking into consideration the mother’s pain,” Dr. Elizabeth Case, an OB-GYN who works and lives in Kentucky and testified at hearings for the bills, told CNN.

“Termination of pregnancy is not a black-and-white affair. There are a lot of gray areas, and this law seemed to be very black and white.”

According to the US Centers for Disease Control and Prevention, 1.3% of women who had abortions in the United States in 2013 did so at or after 21 weeks of pregnancy. The women who have abortions after 20 weeks are often those who have pregnancy or health complications, partially because most don’t get their first ultrasound until around then, according to Case.

“We routinely don’t do our ultrasounds until 20 weeks, and that’s going to leave women no option for how to proceed if they have a baby that’s not going to survive,” Case said.

Kentucky women who find out about complications after 20 weeks may have to carry the baby until it dies in the uterus or deliver a baby who’s expected to die after birth, Case said. They can also go out of state to have the procedure in a place where it’s still legal.

When Hyden found out that these bills were being introduced and knew that they could directly impact her pregnancy, she wanted to get involved. She testified against Senate Bill 5 at two state Senate committee hearings, explaining how it impacted women like her.

“I thought that if we could explain what we were going through personally, then it could change minds,” Hyden said. “You think this is out of context and this is about your religious views or your values, but at the end of the day, it affects people who are struggling on the ground to make these decisions.”

Still, less than a week after it was introduced in the Kentucky Legislature, Senate Bill 5 passed, banning abortions 20 weeks after fertilization. Kentucky Gov. Matt Bevin signed it into law January 8 with an emergency provision making it effective immediately.

Hyden was anxious and heartbroken, still deciding the future for her family.

“We know that the only thing that was an exception was the medical emergency. I wasn’t a medical emergency,” Hyden said.

‘This was the only choice’

When she was 18 weeks pregnant, Hyden’s doctor told her that she would probably miscarry in the next couple of weeks. Her doctor also said that the longer she waited to miscarry, the more likely it was that complications from the pregnancy could impact Hyden’s health. But, for fear that she would not miscarry before the 20-week deadline, Hyden and Earley made an appointment at Kentucky’s only abortion clinic.

“I was just starting to have an emotional and psychological breakdown about all of this,” Hyden said. “We were going up against three weeks since the doctor had told us that our child was not going to make it, and we were just sitting, waiting.”

At 19 weeks pregnant, Hyden found another option: She could have an early induction procedure at a hospital instead of having an abortion procedure at a clinic. The early induction would cause Hyden to go into labor and deliver her baby, even though she knew that the baby would not survive past birth.

Hyden preferred a procedure that could take place in a hospital – she was concerned about safety outside the abortion clinic in Louisville. She also wanted doctors to be able to perform tests on the baby after it was born in order to find out conclusively what had happened with their pregnancy. She got approval from her insurance company for the early induction procedure at the hospital and scheduled an appointment all within one week.

The early induction option is available to other Kentucky women at some hospitals. Hyden was unaware of it earlier in her pregnancy because she was seeing a doctor at a Catholic hospital, which would not allow the procedure unless doctors could no longer detect a heartbeat in the fetus, Hyden said.

At 20½ weeks pregnant, Hyden was induced and labored for 12 hours before giving birth to a stillborn girl, River Lee, on February 19. She was able to have the procedure past 20 weeks because of a technicality in how doctors measure pregnancy.

“For us, that was the choice that we wanted to make based on all of the unknown that we had with her diagnosis,” Hyden said. “It’s part of bringing purpose to her life, even though it was really short.”

During the final weeks of Hyden’s pregnancy, she worked with an abortion doula to find the doctor who did her final procedure. The doula also helped the couple go through the process of having a stillbirth. These doulas work with women who are experiencing any kind of complication in their pregnancy, including miscarriages, stillbirths and abortions.

Now, Hyden and Earley are working to improve access to these doulas in Kentucky.

“We’re focused on the comprehensive health care aspect of this,” Hyden said. “We feel like the more restrictive our state legislation is related to abortion care, the more fear there is in prenatal health environments. … We’re trying to increase the full spectrum of care offered to women with any type of pregnancy.”

Though Hyden and Earley ultimately found a doctor who would care for them and a procedure that met their needs, Case worries that other women may rush into abortions sooner than they may need as a result of this law.

“I fear that some women are going to choose to terminate the pregnancy before they have all the information they need because of this ban because it’s putting a rush on you,” Case said. “You have to make a decision by 20 weeks, and maybe you don’t have enough information to make an informed decision by 20 weeks.”

A new pregnancy, ‘a nervous wreck’

Less than eight months after Hyden’s stillbirth, she learned that she was pregnant again. She and Earley are excited, but Hyden is feeling a host of other emotions too as she heads further into her pregnancy.

“I’m a nervous wreck, honestly,” Hyden said. “I’m just really scared, because it feels like my body is kind of being held hostage, and I know that it’s not just my biophysical processes that have control over me right now, but it’s also all of the other systems, hospital system and policies.”

Hyden is seeing a high-risk OB-GYN for this pregnancy. She is in the second trimester, but has been cautious since the beginning. She’s also been open with those around her about how she’s feeling.

“I feel like there needs to be more open discussion about … the fear of miscarriages and the anxiety after you’ve lost a baby,” she said. “I’ve been very open that I’m scared and going through a lot of different emotions right now.”

Hyden and Earley are still processing their past pregnancy experience as they prepare again to bring a baby into the world. Hyden is still working with the doula who helped her through the end of her previous pregnancy.

Though her procedure wasn’t in an abortion clinic, Hyden classifies what they went through as a “therapeutic abortion” or “early induction for medical reasons.” She believes the issue is more complex than what’s now the law in her state – and what could become the law of the land.

“We can’t have blanket judgments on an issue anymore,” she said. “You can’t. Abortion can be beautiful, I guess. I know that that might sound wild, and I never thought I would say anything like that, but for us, this was the only, this is the only choice, and women need more choices.”

Clarification: This story was updated to include more details about why Hyden preferred a procedure performed at a hospital.