Treat the mother or save the baby? Unraveling Dobbs decision’s impact on cancer care

The abortion debate in the United States can be viewed through many lenses.

Regardless of one’s perspective, one thing is clear: the U.S. Supreme Court decision in June allowing individual states to decide the parameters around abortion services will have an impact on women with cancer — whether they are pregnant before the start of treatment, become pregnant during treatment or desire to have children in the future.

Oncologists may not be at the front lines of the abortion debate, yet they are likely to find themselves occasionally in the crossfire. Sometimes it will require rapid decisions within a murky legal framework, according to Jennifer Holter-Chakrabarty, MD, professor of medicine in the department of hematology and oncology at The University of Oklahoma Health Sciences Center and chair of ASH’s Committee on Government Affairs.

She has experienced scenarios where patients with acute leukemia have been in her office for a consult, started therapy hours later and experienced seizures that required immediate intubation.

"Trying to make a maternal decision in this scenario would be catastrophic,” she told Healio | HemOnc Today. “Now think about having to make decisions when a law interrupts a clinician’s ability to provide care for a patient because both the patient and the practitioner are being put at criminal risk for making potential life-saving decisions."

Choices affecting concurrent cancer treatment and pregnancy have traditionally been left to the patient in consultation with their physician, and any delay in decision-making can put the patient’s life at risk, Holter-Chakrabarty said.

“I know that my colleagues and I fear that we will end up going to jail,” she said. “This is what is going to happen if physicians continue to treat patients in a manner that avoids putting them in harm’s way.”

Healio | HemOnc Today examined how the Dobbs v. Jackson Women’s Health Initiative decision will affect treatment discussions between cancer care clinicians and patients who are pregnant, whom the potential changes could impact most, and how clinicians can navigate the dynamic legal framework around reproductive health care.

‘Time is our enemy’

The overlap of pregnancy and a cancer diagnosis is not uncommon. The approximate prevalence of a concurrent cancer diagnosis is 1 in 1,000 deliveries, which has been cited as far back as 2003 in a study published in American Journal of Obstetrics and Gynecology. The combination of increased detection rates and older childbearing ages will likely cause this number to increase.

For these women, the Dobbs decision could result in delays in cancer care because of concerns that treatments may harm the fetus, according to Julie R. Gralow, MD, FACP, FASCO, chief medical officer and executive vice president of ASCO.

“For a pregnant person with a fast-growing, aggressive cancer, delaying treatment by a few days, weeks or months can be lethal,” she told Healio | HemOnc Today. “The Dobbs ruling has already created uncertainty and confusion that undermines the doctor-patient relationship and poses a threat to high-quality, equitable cancer care.”

The confusion results from the insertion of the government as the de facto third participant in patient-physician conversations regarding treatment options, according to Karen E. Knudsen, MBA, PhD, CEO of American Cancer Society.

“Prior to the Dobbs ruling, this was a discussion between the patient and their oncologist about the right course of treatment,” she told Healio | HemOnc Today.

Knudsen also emphasized that delays in cancer treatment due to the Dobbs decision could be life-threatening.

“[American Cancer Society] is taking up the helm of working state by state to ensure that lawmakers understand the ramifications of what they are proposing when it comes to how to handle pregnancy for someone who is undergoing cancer therapy,” she said.

Catheryn M. Yashar, MD, chief of gynecologic and breast radiation services at UC San Diego Health and chair of American Society for Radiation Oncology’s Health Policy Council, practices in California, where reproductive rights are less restricted. The Dobbs decision has not affected her recommendations to patients, but it has “created havoc” for some of her colleagues across the country, she said.

Delays in care that the Dobbs decision will cause are likely to result in legal disputes, to the detriment of patient care, Yashar said.

“Time is our enemy,” she told Healio | HemOnc Today. “Timely access to the right treatment matters in cancer.”

Yashar said the Dobbs decision puts clinicians in the untenable situation of deciding whether to possibly break the law to save the mother or — in the case of cancer care — possibly lose the mother by recommending a treatment strategy that won’t harm a fetus, even if that strategy is inferior.

“I think most physicians would provide care for the patient come what may and then defend their decisions afterward,” Yashar said. “My experience tells me most physicians will follow this strategy, but it is still going to cause a lot of angst and nervousness.”

Treatment-related issues

Beyond pitfalls related to delays in care, specific cancer treatments known to have negative effects on a fetus may present legal concerns, given the patchwork legal structure for reproductive rights.

Radiation oncology may be most impacted, Yashar said, because radiation therapy is “absolutely incompatible with a fetus at any stage of gestation if it's in the direct beam.”

In most cases that do not involve a fast-growing lesion, Yashar said it’s likely an oncologist would recommend withholding radiation therapy until after a pregnant woman has given birth. However, in cases of aggressive cancers requiring radiation therapy, an oncologist often must present patients with a choice regarding termination of a pregnancy to begin immediate treatment.

“Even for breast cancer, I would advise patients to delay radiation therapy until after delivery or until the woman is no longer pregnant, because internal scatter will occur and could exceed the recommended threshold for a fetus,” Yashar said.

Some cancer drugs, such as methotrexate, are known to cause miscarriages, whereas immunotherapies and targeted agents may have unknown effects on the fetus.

“It is not yet clear if clinicians in certain states would face legal action for prescribing methotrexate or other medications to treat pregnant patients with cancer,” Gralow said.

Pregnant women are not included in clinical trials for new cancer therapies, Knudsen said. It’s only through real-world experience that clinicians learn the impact of novel agents on pregnant women, she added, “and we don’t want to see reluctance to use these treatments for fear of prosecution.”

Know the legal parameters

Oncologists may not directly perform abortions, but there are times when they may need to recommend one or prescribe medications known to adversely affect a fetus and cause a medically induced miscarriage. The circumstances and location of how and where these services are provided may now hinge on state laws.

“Ideally, this would be a decision made between the patient and the physician because it's a medical decision, but one of the unfortunate results of the Dobbs decision is there is no longer a constitutionally protected right to abortion as medical treatment,” Carmel Shachar, JD, MPH, executive director of The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, told Healio | HemOnc Today.

“Knowing the legal parameters in your state — so that physicians can make informed decisions about what they're getting into — is important, especially in the coming years, where the law will be pretty unsettled,” she added. “The Dobbs decision makes it really difficult to predict what is safe medical care to provide — and by safe, I mean that the physician won't end up facing criminal or civil liability fines or losing their medical license.”

Being proactive is critical in this new legal framework so physicians are aware of laws in their jurisdiction and can use this knowledge to help guide patients through their options, Shachar said. But even this guidance has the potential to be viewed as recommending a potentially illegal course of action, so physicians should proceed cautiously, she recommended.

“There is a fuzzy boundary where the First Amendment’s freedom of speech protections apply, and it's probably most protective when a physician is talking in generalities,” Shachar said. “The law is probably less protective when the conversation starts to get into details about actual medical actions.”

Perhaps the most frustrating outcome of the Dobbs decision, she added, is the potential for a wall to develop between physicians and pregnant patients where “some things may have to be left unsaid.”

Uneven impact

The Dobbs decision may have the greatest impact on physicians who practice in states with the most restrictive abortion policies. As Shachar wrote in a JAMA editorial, laws such as the “aiding and abetting” statute in Texas could leave clinicians who provide care that results in miscarriages liable to criminal and civil penalties.

“I think the Dobbs decision will be felt unevenly across the country,” Shachar told Healio | HemOnc Today. “A physician who practices in California is going to be in a very different environment than a physician who practices in Texas.”

Shachar worries that states with early total or near-total abortion bans will be the most proactive in pursuing legal charges against health care providers alleged to be a part of providing abortion services.

“A major legal precedent that has been around for decades just got thrown out the window, and that makes it really difficult for lawyers to predict how cases are going to play out,” she noted. “Even though the oncologist is not the one providing the abortion services, if you are referring for abortion services while practicing in a state that has a ban, is that enough to say that you are one of the providers of the abortion?”

Holter-Chakrabarty confirmed the location-based imperativeness of the Supreme Court’s decision.

“When the Dobbs decision came down, the first thing I did was poll my center’s lawyers and ask what I have to do to protect the patients and not put myself or my hospital at criminal risk,” she said.

The feedback she received is do what is right for the patients, but that there are gray areas where she may want to consider speaking with a lawyer before making a treatment decision or transferring a patient to another site because of her location in Oklahoma. A state law the governor signed in May made abortion a criminal offense in Oklahoma.

Because her patients who are pregnant can’t afford treatment delays to consult a lawyer, Holter-Chakrabarty has become proactive about educating herself on the risks.

She’s also looked to ASH’s policy statement “The Right to Maternal Health Care.”

"I would also turn to my OB/GYN colleagues, who are likely to be the most informed on the legal issues and who have the expertise needed to help care for pregnant women,” Holter-Chakrabarty added.

Seeking guidance

New resources are emerging to help guide oncologists and other cancer care clinicians through the legal pitfalls the Dobbs decision has presented.

Nevertheless, Shachar said physicians should start by consulting a lawyer.

“It’s a great time to develop a close relationship with your hospital’s legal counsel,” she said. “It might be easier to do it proactively to gather information about the legal landscape in your state, establish some parameters and be prepared to make the right decisions for [your] patients moving forward.”

ASTRO is receiving “a ton of feedback” regarding the Dobbs decision, Yashar said. The decision will “present new challenges to oncologists, including how best to counsel and treat pregnant women who have cancer,” the organization said in a statement.

“We are committed to working with our members and the cancer community to ensure patients in every state can access evidenced-based cancer care with consideration about fertility preservation as part of their life-saving treatments,” the statement added.

Yashar’s personal advice mirrored that of Shachar.

“ASTRO and other national cancer care organizations will try to be helpful to members once there is some clarity about what this decision means and we can advise clinicians on what they can and cannot do,” she said. “Meanwhile, I think what you can advise depends on the patient you are treating — sometimes you can say things with undertones that are understood and sometimes you can't and will need to be blunt about what you mean.”

ASCO has mobilized staff and volunteers to help its members navigate cancer care in the post-Roe v. Wade era, according to Gralow.

In August, ASCO launched an online resource center as a first step in helping its members deal with reproductive rights issues. The portal, the society said, is “intended to equip members to better understand the laws in their own states and provide tools to advocate for access to all of the components of evidence-based, high-quality cancer care.”

The future of cancer care

It is still early in the post-Roe era, but dozens of states have already enacted strict abortion regulations or outright bans on the procedure. Shachar predicted that “high-profile prosecutions” of physicians are forthcoming.

Unlike their OB/GYN or emergency medicine colleagues, oncologists are “at a really interesting intersection” of the conflict, she noted.

“So much of what [oncologists] do simply cannot be done if the patient is pregnant, and they often find themselves in a situation where the patient isn't actively dying in an emergency room sense, but there is a real threat to life and health if treatment is delayed,” she said.

Holter-Chakrabarty said the impact of the decision will weigh on the minds of physicians and patients alike, to the detriment of optimal cancer care.

"Without question, there will be both cases of physicians holding back care because of legal reasons or postponements by patients who may feel they will commit a crime if they terminate a pregnancy, even though guidelines say they should,” Holter-Chakrabarty said. “There will be delays in care, and delays in care will cause additional deaths.”

Yashar agreed and said additional cancer-related deaths are likely to occur because of the Dobbs decision. The existence of “so many unknowns” that could affect the legal liability of providers and patients will contribute to the toll, she added.

“There is little guidance about when or where clinicians can act without liability,” Yashar said. “It’s a case of rules being made without consideration of all the downstream effects, and once it is put into effect people will have to suffer the consequences of poorly conceived legislation.”

Yashar also believes some physicians may find themselves in jail or prison because of the Dobbs decision and their dedication to doing what is in the best interest of patients.

“I hate to think that we live in a world where a physician saving a patient's life could end up serving a sentence, but that's the reality we face,” she said. “It may be the choice between breaking the law and saving the mother or following the law and losing the mother.”

References:

• ASCO. Cancer care and reproductive health resources for the oncology community. Available at: www.asco.org/news-initiatives/policy-news-analysis/cancer-care-and-reproductive-health-resources-oncology. Published Aug. 16, 2022.
• ASH. The right to maternal health care. Available at: www.hematology.org/advocacy/policy-news-statements-testimony-and-correspondence/policy-statements/2021/the-right-to-maternal-health-care-in-hematology. Published June 24, 2022.
• ASTRO. ASTRO statement on Dobbs v. Jackson Women’s Health Organization (press release). Available at: www.astro.org/News-and-Publications/News-and-Media-Center/News-Releases/2022/ASTRO-Statement-on-Dobbs-v-Jackson-Women%E2%80%99s-Health. Published June 29, 2022. Accessed Aug. 19, 2022.
• Shachar C. JAMA. 2022;doi:10.1001/jama.2022.12510.
• Smith LH, et al. Am J Obstet Gynecol. 2003;doi:10.1067/s0002-9378(03)00537-4.

For more information:

Julie R. Gralow, MD, FACP, FASCO, can be reached at julie.gralow@asco.org.

Jennifer Holter-Chakrabarty, MD, can be reached at jennifer-holter@ouhsc.edu.

Karen E. Knudsen, MBA, PhD, can be reached at karen.knudsen@cancer.org.

Carmel Shachar, JD, MPH, can be reached at cshachar@law.harvard.edu.

Catheryn M. Yashar, MD, can be reached at cyashar@ucsd.edu.