By Christian Funck, LL.M. (George Washington University)

In Georgia, two women died after taking abortion pills. Kamala Harris claims that physicians were unable to provide the necessary medical care due to restrictive abortion laws. However, the accusations are unfounded. Instead, the cases show just how dangerous abortion pills can be without mandatory medical supervision.

Two tragic deaths from the year 2022, which the organization “ProPublica” is now reporting on, are causing a stir in the United States. Restrictive abortion laws had led to the two women not receiving the medical care they needed – as numerous German media outlets have reported, too. Democratic presidential candidate Kamala Harris also blames “Trump’s abortion ban” for the two incidents in the contested swing state of Georgia. Precisely what was feared has happened.

The discussion around these cases is closely tied to the legal shifts brought about by changes to the Supreme Court under Donald Trump. He appointed three judges to the U.S. Supreme Court during his presidency. Two years ago, the nine-judge Supreme Court overturned the landmark decision Roe v. Wade with the votes of these judges, among others (Dobbs v. Jackson Women’s Health Organization). In Roe, the Supreme Court created a constitutional right to abortion in 1973. It declared abortion bans before the time of the child’s extrauterine viability (today, approximately 22 weeks of pregnancy) to be constitutionally impermissible. Since the Dobbs decision, states have been allowed to ban abortions before this time.

Thurman Case

The first case concerns the death of Amber Nicole Thurman. The 28-year-old mother of a six-year-old son was pregnant with twins. To terminate her pregnancy, she took the abortion pills mifepristone and misoprostol in the ninth week of pregnancy, which she had received at an abortion facility in the neighboring state of North Carolina. Five days after taking the first pill, Thurman vomited blood and was hospitalized. There, she was diagnosed with sepsis, which, according to “ProPublica” was caused by “tissue” in the uterus that had not been expelled. The so-called D&C procedure (dilation and curettage) that was supposedly necessary to remove the source of the infection was – for unknown reasons – only carried out 20 hours later. Thurman died during the operation.

An autopsy was not performed; according to the death certificate, Amber Thurman died of “septic shock” and “retained products of conception.” According to a report by the “Maternal Mortality Review Committee” in Georgia, there is a “good chance” that an earlier D&C procedure could have prevented Amber Thurman’s death. Neither the clinic nor Georgia’s Department of Public Health commented on the case.

Miller Case

The second case concerns the death of Candi Miller. When the 41-year-old became pregnant, she was already the mother of three children aged between five and 16 and suffered from the autoimmune disease lupus as well as diabetes and high blood pressure. As reported by “ProPublica,” Candi Miller suffered from bouts of pain due to her lupus disease. However, her pain was often ignored by physicians. This made Miller increasingly doubt that physicians could help her. According to “ProPublica,” other lupus symptoms include extreme fatigue, painful swollen joints, heart complications, and kidney disease.

To end her pregnancy, Candi Miller ordered abortion pills online from the organization “AidAccess,” which was founded by a Dutch woman and is dedicated to expanding access to abortion. Her family does not know what week of pregnancy Candi Miller was in. A later autopsy confirmed that “tissue” remained in the uterus. The deceased did not seek medical help – according to her family, due to the current legal situation. The exact cause of death is unknown. A lethal combination of painkillers, including the deadly opioid fentanyl, was found in Miller’s body.

Legal Landscape in Georgia

Were the new abortion laws passed in Georgia after the Dobbs decision actually responsible for the deaths of Thurman and Miller? Since July 2022, abortions have been generally prohibited in Georgia from the first heartbeat of the child (sixth week of pregnancy). However, an abortion is permitted after this point by way of exception in the case of a medical indication (“medical emergency”), in the case of a criminological indication (rape or incest), or if the pregnancy is medically futile.

Amber Thurman and Candi Miller did not have to fear any criminal prosecution due to the legal situation in Georgia. As has already been clarified by the judiciary (Hillman v. State), according to the language of the law (O.C.G.A. § 16-12-140), only a third person, but not the pregnant woman herself, can be prosecuted for an abortion. But would a physician who provided the necessary medical care in either of the two cases have possibly made herself or himself liable to prosecution for an abortion?

A Simple D&C Procedure Is Not an Abortion at All

In both the Thurman and Miller cases, it can be assumed that the respective children were already dead after taking the abortion pills. In Candi Miller’s body, the autopsy found “unexpelled fetal tissue,” and in Amber Thurman’s case, “tissue” was scraped out that had remained in the uterus after an incomplete abortion.

“ProPublica” falsely claims that the mere D&C procedure – probably medically indicated in both cases – is a felony in Georgia. However, an act can only be punishable as an abortion if it has the purpose of killing an unborn child. A dead child or residue from her or his body can no longer be aborted. The mere D&C procedure – as it is also carried out after a miscarriage or birth – is, therefore, understandable to every physician, not an abortion, and is perfectly legal.

Medical Emergency in Any Case

And even if the heart of one of the Thurman twins was still beating, an abortion would have been permissible in any case due to the existence of a medical indication. “ProPublica” claims that the medical emergency exception is allegedly difficult to interpret due to its “vague and conflicting language.” Under Georgia law, a “medical emergency” is defined as “a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” This is the case with sepsis: Amber Thurman’s life was in acute danger.

In both cases, the immediate provision of medical assistance would, thus, have been permissible and even required under Georgia law. In the Thurman case, medical malpractice and criminal liability of the medical staff for involuntary manslaughter or manslaughter by omission are at issue. However, it is unclear – also due to the omitted autopsy – whether residues in the uterus were actually the source of the infection. The short period of only a few days between taking the pills and the onset of sepsis speaks against this. During Thurman’s operation, for example, poor circulation in the intestine was detected, which could indicate a thrombosis or embolism. The “Maternal Mortality Review Committee” also considers it possible that an earlier D&C procedure would not have prevented Thurman’s death.

Dangers of Abortion Pills

While abortion advocates claim that abortion pills are “safer than Tylenol” (Paracetamol), the two cases show that abortion pills can be dangerous and even fatal in some cases and that their use should, therefore, only be permitted under medical supervision, as in Germany. According to the FDA (Food and Drug Administration), there have been at least 32 deaths in the United States in connection with the use of the abortion pill mifepristone up to 2022.

Mifepristone was approved in the United States in 2000 (under President Bill Clinton) by the FDA in an accelerated procedure intended for drugs against “serious or life-threatening illnesses” such as HIV and cancer. Pregnancy was classified as a serious, life-threatening illness, and mifepristone was deemed to have a “significant therapeutic benefit” over existing treatments (to cure pregnancy?).

“Common Sense” Safety Standards for Women Have Been Repealed

Under Presidents Barack Obama and Joe Biden, the FDA repealed in 2016 and 2021 sensible regulations to protect the health and lives of pregnant women to expand access to (chemical) abortions further. Unlike in Germany, since 2016, mifepristone has no longer needed to be prescribed by a physician. Since 2021, according to the FDA, abortion pills can also be sent by mail; this is how Candi Miller got the abortion pills. In addition, since 2016, abortion pills may be used not only in the first seven weeks of pregnancy but up to the tenth week of pregnancy. Taking them later increases the risk of severe side effects.

A prior ultrasound examination can rule out an ectopic pregnancy, in which case mifepristone and misoprostol must not be used. Furthermore, with a previous ultrasound examination, it can be ensured that the pregnant woman is still within the first ten weeks of pregnancy. Whether Candi Miller’s pregnancy was still within this time frame is unknown. Candi Miller also had special risks due to her existing kidney and heart disease, her age, her high blood pressure, and her diabetes. It was, therefore, highly irresponsible of “AidAccess” to give abortion pills to Candi Miller without medical supervision.

In 2016, the FDA also repealed the requirement for a personal follow-up examination. In the case of a chemical abortion, there is a risk of incomplete abortion, which – as possibly in the case of Amber Thurman – can lead to life-threatening sepsis, which can be prevented by a follow-up examination, which is still mandatory in Germany. Uterine residues must be removed in about three to four percent of cases. The repeal of compulsory follow-up exams and the other safeguards mentioned have, consequently, put the health and lives of women like Amber Thurman and Candi Miller in danger.

Not a Specific Danger of Laws like in Georgia

In conclusion, complications resulting from the use of abortion pills are not a specific danger associated with abortion restrictions like those in Georgia. The number of chemical abortions in the United States has steadily increased regardless of abortion bans. Even before the Dobbs decision, the majority of abortions in the United States were performed with abortion pills.

It is difficult to determine reliably how many abortions in the United States are carried out using pills ordered by mail. However, it can be assumed that it is a phenomenon that affects both states with restrictive abortion laws and states that are pro-choice. According to a study by the Society of Family Planning, which also includes the pills sent by “AidAccess,” it can be assumed that nationwide, nearly one in five abortions (nearly 17,000 per month) is performed without an in-person exam using pills sent by mail. Of these almost 17,000 abortions, the study found that one-third (approximately 5,800 abortions) were on individuals from states with nearly total abortion bans or six-week abortion bans. About one-third of U.S. women of childbearing age live in a state with such abortion restrictions. Many of the advantages of chemical abortion via mailed abortion pills, such as lower costs or avoiding long trips to an abortion facility, also exist in pro-choice states like Colorado or Alaska. In addition, many women want to terminate their pregnancy for reasons of privacy at home.

Pro-choice organizations such as the Guttmacher Institute see restrictions on access to abortion pills – such as a physician‘s prescription or mandatory personal examinations – as “unnecessary barriers“ and are, therefore, committed to ensuring that abortion pills – as a “game changer” – are as widely and easily accessible as possible. But this puts women in easily avoidable danger. Thus, cases like those of Amber Thurman and Candi Miller could just as easily have happened in an abortion-friendly state.

About the Author:

Christian Funck, LL.M. (George Washington University), is a research and teaching assistant for public law at the Rheinische Friedrich-Wilhelms-Universität Bonn.

Responsible Editor:

Isabel Cagala, TLB Co-Editor-in-Chief