Fatal anomaly exception didn’t spare Alabama mom who needed an abortion

A heart defect and large fetal tumor weren’t enough for doctors to feel comfortable granting abortion care.

By Kelcie Mosely-Morris for Alabama Reflector

Kelly Shannon was grieving a pregnancy she would need to terminate because of multiple fetal anomalies when she got the call that Alabama doctors wouldn’t approve an abortion procedure despite exceptions in the law. That meant she would have to leave the state.

Shannon, 36, was about 16 weeks along in January 2023 when genetic testing—and confirmation from an amniocentesis—showed her fetus likely had Trisomy 21, better known as Down syndrome. It didn’t take long for the doctor to determine the fetus likely wouldn’t survive to term. There was fluid buildup in the head and body, evidence of a heart defect, and a tumor on the abdomen that was roughly one-third the size of its entire body.

“There was so much decision-making and processing, and you’re still feeling the baby kick the whole time,” Shannon said. “And every time she would kick, I was just sitting there like, ‘I’m so sorry. I wish I got to be your mom, but I don’t get to be your mom.’”

Three years before the U.S. Supreme Court issued the Dobbs decision in June 2022 and returned the ability to regulate abortion to the states, Alabama had already passed an abortion ban. Gov. Kay Ivey said at the time she signed the bill that even though it was likely unenforceable since abortion was still legal nationally, it was a signal to the courts to overturn Roe v. Wade. A group of physicians challenged the Alabama law in court and received a preliminary injunction that had barred its enforcement for years. But when Dobbs took effect, the injunction was lifted. Doctors are now subject to felony charges with punishment of up to life in prison.

Alabama is one of few states with an abortion ban at any stage of pregnancy that also contains an exception for lethal fetal anomalies. In the law, it’s defined as a condition from which the fetus would die after birth or shortly thereafter, or be stillborn. There are also exceptions for performing an abortion to save a pregnant patient’s life or preserve their health. However, according to the latest WeCount report of abortions performed since Dobbs, Alabama has recorded zero abortion procedures. Activists have argued that exceptions in abortion bans are meaningless because there is too much fear and uncertainty about what circumstances will qualify for an exception.

Down syndrome is the most common chromosomal abnormality, and more often occurs when the pregnant person is over the age of 35. According to the Centers for Disease Control and Prevention, infants with Down syndrome and a heart defect are five times more likely to die in their first year of life than those without.

Each abnormality on its own would possibly have been manageable, Shannon said, but the maternal-fetal medicine specialist told her the combination meant she would likely either miscarry at some point during the pregnancy or her daughter’s life would be short and punctuated by multiple surgeries. Shannon and her husband made the difficult decision at that point to terminate.

“That made the decision easier because it was like, well now if I know I’m going to lose her regardless, I can lose her on a controlled timeline, protect my health, start the grieving process, get healthy, and then still be able to have another child,” she said.

Shannon filled out paperwork and made a termination appointment pending approval from the other maternal-fetal medicine specialists at the University of Alabama at Birmingham. Her doctor felt confident that given the severity of the anomalies, the abortion would be allowed.

‘I don’t think I would’ve taken that risk on me’

A few days later, in the car on her way to meet her husband and toddler at a local dog park, the doctor called back.

“I knew why she was calling me. I knew that was the day the (second) committee was supposed to meet and she’d be calling me with their decision,” Shannon said.

Shannon scheduled the Jan. 24 termination date, made arrangements to take leave from work, and had decided on cremation. But with one phone call, all the decisions she’d made had to change.

The termination had easily been approved by the first committee, and it seemed like the higher-level committee would sign off too. But in a halting manner, the doctor explained the committee had decided since each condition by itself was survivable, it didn’t meet the criteria for termination. She told Shannon it was the hardest phone call she’d made in her professional career.

The only way the committee might approve the request was if the fetus also developed a condition called hydrops fetalis, an excessive buildup of fluid that is often fatal. Shannon said that put her in a strange place of having some kind of hope that her pregnancy was even worse than originally thought. But she wasn’t upset with the doctors themselves.

“I mostly just felt sorry for them, even at the time,” she said. “As angry as I was that I wasn’t going to get to handle my pregnancy and my termination in the way that made the most sense to me … if I had been in their shoes and thought ‘well, is this one case worth my license and jail time and prosecution? Her life’s not in danger, her baby’s probably going to die.’ I don’t think I would’ve taken that risk on me.”

The manager of public relations at the University of Alabama at Birmingham said no one was available to speak with States Newsroom for this story.

Shannon had one more ultrasound at 17 weeks, where her providers checked for hydrops, but there was no presence of it. As the pregnancy had progressed further since the last ultrasound,  multiple holes between the chambers of the fetus’s heart were clearly visible, and the tumor had grown seven-tenths of a centimeter. Despite the increased severity of those issues, without hydrops, she still had to go out of state.

A scheduling error meant Shannon had to wait two more weeks before she could get an appointment at a hospital in Richmond, Virginia—an 11-hour drive. Rather than bring her husband and toddler along for the ordeal, Shannon’s parents accompanied her. It was the first night she’d ever spent away from her toddler.

She chose to be induced for the procedure. After a long day of waiting, Shannon gave birth a few minutes before midnight and got to hold her daughter.

“I kept her with me until about 2 or 3 in the morning,” she said.

The logistics of what to do with the remains became more complicated since she was now more than 700 miles away from home and wouldn’t be able to visit a burial site in Virginia the way she could have in Alabama. She opted to have her daughter buried with other babies that had died because of miscarriage, termination, or other premature causes.

Baby boy born in mid-March

In mid-March, Shannon gave birth to a healthy baby boy that was a surprise pregnancy. She had been aiming for her next pregnancy to happen over the summer, when she wasn’t teaching.

“When I found out I was pregnant, I just started crying. Instead of being excited, the trauma came back,” she said. “And I felt like, I want to be excited and happy, but I’m not there yet because I don’t know if we get to keep this one yet either.”

She said she wants her story to make a difference, in hopes that another person doesn’t have to go through the same pain.

“I get angry whenever I see people with the ‘choose life’ bumper stickers and license plates, because they’re not thinking about me. They’re not recognizing that it’s not a black and white issue, it’s nothing but shades of gray when you’re dealing with pregnancy, particularly high-risk pregnancy,” Shannon said. “I am a married, white, straight, Christian, grew-up-in-the-church woman who was attempting to grow her family within the bounds of marriage, and I just keep thinking, if anybody is going to be able to change a mind about this issue, shouldn’t it be me?”

Editor’s note: This is the fourth installment of an occasional States Newsroom series called “When and Where: Abortion Access in America,” profiling individuals who have needed abortion care in the U.S. before and after Dobbs. The first installment can be found here, the second installment is here, and the third is here.

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