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A WOMAN DIED AFTER BEING TOLD IT WOULD BE A “CRIME” TO INTERVENE
IN HER MISCARRIAGE AT A TEXAS HOSPITAL  
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Cassandra Jaramillo and Kavitha Surana
October 30, 2024
ProPublica
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_ Josseli Barnica is one of at least two pregnant Texas women who
died after doctors delayed emergency care. She’d told her husband
that the medical team said it couldn’t act until the fetal heartbeat
stopped. _

Josseli Barnica and her daughter in 2020 , Courtesy of the Barnica
family

 

Josseli Barnica grieved the news as she lay in a Houston hospital bed
on Sept. 3, 2021: The sibling she’d dreamt of giving her daughter
would not survive this pregnancy.

The fetus was on the verge of coming out, its head pressed against her
dilated cervix; she was 17 weeks pregnant and a miscarriage was “in
progress,” doctors noted in hospital records. At that point, they
should have offered to speed up the delivery or empty her uterus to
stave off a deadly infection, more than a dozen medical experts told
ProPublica.

But when Barnica’s husband rushed to her side from his job on a
construction site, she relayed what she said the medical team had told
her: “They had to wait until there was no heartbeat,” he told
ProPublica in Spanish. “It would be a crime to give her an
abortion.”

For 40 hours, the anguished 28-year-old mother prayed for doctors to
help her get home to her daughter; all the while, her uterus remained
exposed to bacteria.

Three days after she delivered, Barnica died of an infection.

Barnica is one of at least two Texas women who ProPublica found lost
their lives after doctors delayed treating miscarriages, which fall
into a gray area under the state’s strict abortion laws that
prohibit doctors from ending the heartbeat of a fetus.

Neither had wanted an abortion, but that didn’t matter. Though
proponents insist that the laws protect both the life of the fetus and
the person carrying it, in practice, doctors have hesitated to provide
care under threat of prosecution, prison time and professional ruin.

ProPublica is telling these women’s stories this week, starting with
Barnica’s. Her death was “preventable,” according to more than a
dozen medical experts who reviewed a summary of her hospital and
autopsy records at ProPublica’s request; they called her case
“horrific,” “astounding” and “egregious.”

The doctors involved in Barnica’s care at HCA Houston Healthcare
Northwest did not respond to multiple requests for comment on her
case. In a statement, HCA Healthcare said “our responsibility is to
be in compliance with applicable state and federal laws and
regulations” and said that physicians exercise their independent
judgment. The company did not respond to a detailed list of questions
about Barnica’s care.

Like all states, Texas has a committee of maternal health experts who
review such deaths to recommend ways to prevent them, but the
committee’s reports on individual cases are not public and members
said they have not finished examining cases from 2021, the year
Barnica died.

ProPublica is working to fill gaps in knowledge
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consequences of abortion bans. Reporters scoured death data, flagging
Barnica’s case for its concerning cause of death: “sepsis”
involving “products of conception.” We tracked down her family,
obtained autopsy and hospital records and enlisted a range of experts
to review a summary of her care that ProPublica created in
consultation with two doctors.

Barnica’s autopsy report lists her cause of death as sepsis with
“retained products of conception,” meaning tissue that grew during
her pregnancy but remained after her miscarriage. Credit:Highlighted
and redacted by ProPublica

Among those experts were more than a dozen OB-GYNs and maternal-fetal
medicine specialists from across the country, including researchers at
prestigious institutions, doctors who regularly handle miscarriages
and experts who have served on state maternal mortality review
committees or held posts at national professional medical
organizations.

After reviewing the four-page summary, which included the timeline of
care noted in hospital records, all agreed that requiring Barnica to
wait to deliver until after there was no detectable fetal heartbeat
violated professional medical standards because it could allow time
for an aggressive infection to take hold. They said there was a good
chance she would have survived if she was offered an intervention
earlier.

“If this was Massachusetts or Ohio, she would have had that delivery
within a couple hours,” said Dr. Susan Mann, a national patient
safety expert in obstetric care who teaches at Harvard University.

Many noted a striking similarity to the case of Savita Halappavanar,
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31-year-old woman who died of septic shock in 2012 after providers in
Ireland refused to empty her uterus while she was miscarrying at 17
weeks. When she begged for care, a midwife told her, “This is a
Catholic country.” The resulting investigation and public outcry
galvanized the country to change its strict ban on abortion.

But in the wake of deaths related to abortion access in the United
States, leaders who support restricting the right have not called for
any reforms.

Last month, ProPublica told the stories of two Georgia women, Amber
Thurman and Candi Miller, whose deaths were deemed “preventable”
by the state’s maternal mortality review committee
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they were unable to access legal abortions and timely medical care
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an abortion ban.

Georgia Gov. Brian Kemp called the reporting “fear mongering.”
Former President Donald Trump has not weighed in — except to joke
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his Fox News town hall on women’s issues would get “better
ratings” than a press call where Thurman’s family spoke about
their pain.

Leaders in Texas, which has the nation’s oldest abortion ban, have
witnessed the consequences of such restrictions longer than those in
any other state.

In lawsuits
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court petitions and news stories, dozens of women have said they faced
dangers when they were denied abortions starting in 2021. One suffered
sepsis like Barnica, but survived after three days in intensive care.
She lost part of her fallopian tube. Lawmakers have made small
concessions to clarify two exceptions for medical emergencies, but
even in those cases, doctors risk up to 99 years in prison and fines
of $100,000; they can argue in court that their actions were not a
crime, much like defendants can claim self-defense after being charged
with murder.

Amid the deluge of evidence of the harm, including research suggesting
Texas’ legislation has increased infant
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deaths
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some of the ban’s most prominent supporters have muted their public
enthusiasm for it. U.S. Sen. Ted Cruz, who once championed the fall of
Roe v. Wade and said, “Pregnancy is not a life-threatening
illness,” is now avoiding the topic amid a battle to keep his seat.
And Gov. Greg Abbott, who said early last year that “we promised we
would protect the life of every child with a heartbeat, and we did,”
has not made similar statements since.

Both declined to comment to ProPublica, as did state Attorney General
Ken Paxton, whose commitment to the ban remains steadfast as
he fights for access to the out-of-state medical records of women who
travel for abortions
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Earlier this month, as the nation grappled with the first reported,
preventable deaths related to abortion access, Paxton celebrated a
decision by the U.S. Supreme Court
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allowed Texas to ignore federal guidance requiring doctors to provide
abortions that are needed to stabilize emergency patients.

“This is a major victory,” Paxton said.

“They Had to Wait Until There Was No Heartbeat”

To Barnica, an immigrant from Honduras, the American dream seemed
within reach in her corner of Houston, a neighborhood filled with
restaurants selling El Salvadoran pupusas and bakeries specializing in
Mexican conchas. She found work installing drywall, saved money to
support her mother back home and met her husband in 2019 at a
community soccer game.

A year later, they welcomed a big-eyed baby girl whose every milestone
they celebrated. “God bless my family,” Barnica wrote on social
media, alongside a photo of the trio in matching red-and-black plaid.
“Our first Christmas with our Princess. I love them.”

Barnica and her daughter days after she was born. Barnica loved
dressing the family in matching clothing. Credit:Courtesy of the
Barnica family

Barnica longed for a large family and was thrilled when she conceived
again in 2021.

Trouble struck in the second trimester.

On Sept. 2, 2021, at 17 weeks and four days pregnant, she went to the
hospital with cramps, according to her records. The next day, when the
bleeding worsened, she returned. Within two hours of her arrival on
Sept. 3, an ultrasound confirmed “bulging membranes in the vagina
with the fetal head in the open cervix,” dilated at 8.9 cm, and that
she had low amniotic fluid. The miscarriage was “in progress,” the
radiologist wrote.

When Barnica’s husband arrived, she told him doctors couldn’t
intervene until there was no heartbeat.

The next day, Dr. Shirley Lima, an OB on duty, diagnosed an
“inevitable” miscarriage.

In Barnica’s chart, she noted that the fetal heartbeat was detected
and wrote that she was providing Barnica with pain medication and
“emotional support.”

In a state that hadn’t banned abortion, Barnica could have
immediately been offered the options that major medical organizations
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ones, say is the standard of evidence-based care: speeding up labor
with medication or a dilation and evacuation procedure to empty the
uterus.

“We know that the sooner you intervene in these situations, the
better outcomes are,” said Dr. Steven Porter, an OB-GYN in
Cleveland.

But Texas’ new abortion ban had just gone into effect. It required
physicians to confirm the absence of a fetal heartbeat before
intervening unless there was a “medical emergency,” which the law
did not define. It required doctors to make written notes on the
patient’s condition and the reason abortion was necessary.

The law did not account for the possibility of a future emergency, one
that could develop in hours or days without intervention, doctors told
ProPublica.

Barnica was technically still stable. But lying in the hospital with
her cervix open wider than a baseball left her uterus exposed to
bacteria and placed her at high risk of developing sepsis, experts
told ProPublica. Infections can move fast and be hard to control once
they take hold.

The scenario felt all too familiar for Dr. Leilah Zahedi-Spung, a
maternal-fetal medicine specialist who used to work in Tennessee and
reviewed a summary of Barnica’s records at ProPublica’s request.

Abortion bans put doctors in an impossible position, she said, forcing
them to decide whether to risk malpractice or a felony charge. After
her state enacted one of the strictest bans in the country, she also
waited to offer interventions in cases like Barnica’s until the
fetal heartbeat stopped or patients showed signs of infection, praying
every time that nothing would go wrong. It’s why she ultimately
moved to Colorado.

The doctors treating Barnica “absolutely didn’t do the right
thing,” she said. But she understood why they would have felt
“totally stuck,” especially if they worked at a hospital that
hadn’t promised to defend them.

Even three years after Barnica’s death, HCA Healthcare, the hospital
chain that treated Barnica, will not disclose whether it has a policy
on how to treat miscarriages.

Some HCA shareholders have asked the company to prepare a report on
the risks to the company related to the bans in states that restrict
abortion, so patients would understand what services they could expect
and doctors would know under what circumstances they would be
protected. But the board of directors opposed the proposal, partly
because it would create an “unnecessary expense and burdens with
limited benefits to our stockholders.”
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proposal was supported by 8% of shareholders who voted.

The company’s decision to abstain has repercussions far beyond
Texas; the nation’s largest for-profit hospital chain has said
it delivers more babies
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any other health care provider in America, and 70% of its hospitals
are in states where abortion is restricted.

As the hours passed in the Houston hospital, Barnica couldn’t find
relief. On the phone with her aunt Rosa Elda Calix Barnica, she
complained that doctors kept performing ultrasounds to check the fetal
heartbeat but were not helping her end the miscarriage.

Around 4 a.m. on Sept. 5, 40 hours after Barnica had arrived, doctors
could no longer detect any heart activity. Soon after, Lima delivered
Barnica’s fetus, giving her medication to help speed up the labor.

Dr. Joel Ross, the OB-GYN who oversaw her care, discharged her after
about eight more hours.

The bleeding continued, but when Barnica called the hospital, she was
told that was expected. Her aunt grew alarmed two days later when the
bleeding grew heavier.

Go back, she told her niece.

On the evening of Sept. 7, Barnica’s husband rushed her to the
hospital as soon as he got off from work. But COVID-19 protocols meant
only one visitor could be in the room with her, and they didn’t have
a babysitter for their 1-year-old daughter.

So he left and tried to get some sleep.

“I fully expected her to come home,” he said.

But she never did. Her family planned two funerals, one in Houston and
another in Honduras.

Nine days after her death, Barnica’s husband was processing his
shock, learning how to be a single dad and struggling to raise funds
to bury his wife and the son he had hoped to raise.

Meanwhile, Lima was pulling up Barnica’s medical chart to make an
addition to her records.

The notes she added made one point abundantly clear: “When I was
called for delivery,” she wrote, “the fetus no longer had
detectable heart tones.”

“They Should Vote With Their Feet”

Texas has been on the forefront of fighting abortion access.

At the time of Barnica’s miscarriage in 2021, the Supreme Court had
not yet overturned the constitutional right to terminate a pregnancy.
But Texas lawmakers, intent on being the first to enact a ban with
teeth, had already passed a harsh civil law using a novel legal
strategy that circumvented Roe v. Wade: It prohibited doctors from
performing an abortion after six weeks by giving members of the public
incentives to sue doctors for $10,000 judgments. The bounty also
applied to anyone who “aided and abetted” an abortion.

A year later, after the Dobbs v. Jackson ruling was handed down
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criminal law went into effect, threatening doctors with up to 99 years
in prison and $100,000 in fines.

Soon after the ruling, the Biden administration issued federal
guidance reminding doctors in hospital emergency rooms they have a
duty to treat pregnant patients who need to be stabilized, including
by providing abortions for miscarriages.

Texas Attorney General Ken Paxton fought against that
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arguing that following the guidance would force doctors to “commit
crimes” under state law and make every hospital a “walk-in
abortion clinic.” When a Dallas woman
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a court for approval to end her pregnancy because her fetus was not
viable and she faced health risks if she carried it to term, Paxton
fought to keep her pregnant. He argued her doctor hadn’t proved it
was an emergency and threatened to prosecute anyone who helped her.
“Nothing can restore the unborn child’s life that will be lost as
a result,” he wrote to the court
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No doctor in Texas, or the 20 other states that criminalize abortion,
has been prosecuted for violating a state ban. But the possibility
looms over their every decision, dozens of doctors in those states
told ProPublica
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forcing them to consider their own legal risks as they navigate their
patient’s health emergencies. The lack of clarity has resulted in
many patients being denied care
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In 2023, Texas lawmakers made a small concession to the outcry over
the uncertainty the ban was creating in hospitals. They created a new
exception for ectopic pregnancies, a potentially fatal condition where
the embryo attaches outside the uterine cavity, and for cases where a
patient’s membranes rupture prematurely before viability, which
introduces a high risk of infection. Doctors can still face
prosecution, but are allowed to make the case to a judge or jury that
their actions were protected, not unlike self-defense arguments after
homicides. Barnica’s condition would not have clearly fit this
exception.

This year, after being directed to do so by the state Supreme Court,
the Texas Medical Board released new guidance telling doctors that an
emergency didn’t need to be “imminent” in order to intervene and
advising them to provide extra documentation regarding risks.

But in a recent interview, the board’s president, Dr. Sherif
Zaafran, acknowledged that these efforts only go so far and the group
has no power over criminal law: “There’s nothing we can do to stop
a prosecutor from filing charges against the physicians.”

Asked what he would tell Texas patients who are miscarrying and unable
to get treatment, he said they should get a second opinion: “They
should vote with their feet and go and seek guidance from somebody
else.”

An immigrant from El Salvador who works 12-hour shifts, Barnica’s
husband doesn’t follow American politics or the news. He had no
inkling of the contentious national debate over how abortion bans are
affecting maternal health care when ProPublica contacted him.

Now he is raising a 4-year-old daughter with the help of Barnica’s
younger brother; every weekend, they take her to see her grandmother,
who knows how to braid her hair in pigtails.

All around their home, he keeps photos of Barnica so that the little
girl grows up knowing how much her mother loved her. He sees flashes
of his wife when his daughter dances. She radiates the same delight.

When asked about Barnica, he can’t get out many words; his leg is
restless, his eyes fixed on the floor. Barnica’s family calls him a
model father.

He says he’s just doing his best.

_Cassandra Jaramillo is a reporter at ProPublica. She joined the
newsroom in 2022, covering reproductive health and voting
rights.  Kavitha Surana is a reporter at ProPublica._

_Mariam Elba
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research. Lizzie Presser
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reporting._

* miscarriages
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* texas
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* abortion bans
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* Fatalities
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