Opinion | What Will Happen if Doctors Defy the Law to Provide Abortions?

Days After Texas Bans Most Abortions After About Six Weeks In September 2021, Dr. Alan Braid disclosure that he had “provided abortion services to a woman who, while still in her first trimester, exceeded the new state limit.” Braid wrote in a Washington Post opinion piece that when he was a resident before Roe sued Wade, he witnessed “teenagers die from illegal abortions. One I will never forget. When she got to the emergency room, her vaginal cavity was filled with rags. She died a few days later from severe organ failure, caused by an infectious infection. ” Dr. Braid addressed, “I can’t sit back and watch us go back to 1972.”

Since the Dobbs Women’s Health Foundation sued Jackson beat Roe, many clinicians around the country would risk their careers and freedoms if they provided abortion care. 17 states have enacted almost a total ban on abortion or they are trying. Many of these bans allow virtually no exceptions, even for rape or women’s health. Now, those who provide illegal pregnancy termination services will face penalties ranging from suspension of medical practice to a $100,000 fine to life in prison.

Michigan’s chief medical officer, Natasha Bagdasarian, Written that these laws force doctors to choose between breaking the law and “breaking the oath we made on behalf of our patients.” A Missouri obstetrician and gynecologist, David Eisenberg, said on the podcast “The Daily” before Roe said that his professional commitment to providing abortion care to patients in need is “part of my moral and religious worldview.” He added, “I’m a dedicated provider.”

Although Dr. Eisenberg did not say he would break any laws, some physicians who identify as dedicated providers in post-Roe America may seek to provide abortion services in violation of state law, as many have done before Roe. A federal statute must protect physicians’ consciences in principled ways – not only for those who refuse care, but also for those who provide care.

And if legislators don’t protect conscientious providers, judges should. Courts that could recognize a legal defense of medical disobedience would greatly reduce the punitive sanctions some states impose on the provision of reasonable services. clinically in the name of conscience. This partial protection should also waive the possible collateral consequences of a felony conviction, such as license revocation and expropriation. That mitigation would go a long way to fixing the one-way waivers already in place across the US.

The American legal regime governing medical conscience has been broken. While conscientious providers have barely found refuge in the codified terms of conscience in almost every state, those who refuse to be protected are almost classified. And nearly all of these laws of conscience are dedicated to denial of care. People who refuse to conscience are often not fired, disciplined, held liable, or found guilty of violating standards of care and endangering patients, even in serious ways. Conscientious deniers often don’t have to tell patients about their options or help them access care elsewhere. But few protections exist for doctors who are equally dedicated to providing abortion services.

To be sure, there are important distinctions between the different services that dedicated providers may seek to provide. Some are safer or more effective than others. Some require expensive facilities and staff, while others require nothing more than a prescription. Some fall right within medical standards, while others push its boundaries, or surpass them.

Specific details matter. But an ethical commitment to treating patients can be as sincere and noble as the values ​​that turn other doctors away from their patients. Even more important: Conscientious providers respect the wishes of their patients, while conscientious objectors override those wishes.

Too often, however, it is only the conscience of those who refuse to be taken seriously in the eyes of the law. This asymmetry leaves patients with implicit despair and selectively burdens conscientious providers. It is true that enabling conscientious providers would undermine the government’s well-considered judgment that people should not have access to health care that the government has banned. But for particularly pressing questions – about life and death, impairment and identity – freedom of conscience in medicine can sometimes be important enough to make worthy appeals. This may be true even at the expense of other state benefits, as long as the accommodations are limited by any harm they cause to others.

One reason for defending conscience in medicine is to protect the ethical integrity of the clinicians claiming it. This also applies to conscientious providers. It is imperative that doctors and nurses stand by and do nothing to help patients in need before the fundamental responsibility of doctors to cure disease, promote health, and alleviate suffering. In addition, openness to dissenters, within limits, allows a pluralistic society to adapt to moral change from within.

Congress or courts should recognize a partial defense of medical disobedience. This protection should not be for every clinician who invokes conscience to provide prohibited care. In the relevant context of religion, Supreme Court applied a know-it-when-I-see-it test to see if someone’s presumptive beliefs qualify as genuine and have moral weight. That test would rule out “a claim that is asserted too strangely,” silly or self-interested “because it has no right to be defended.”

And doctors will have to show more than they acted out of deep conviction. The care they are dedicated to providing must also be medically indicated and with the consent of the patient or appropriate representative. So mercilessly killing someone who was pressured to exercise the option would not qualify. Nor are there any interventions whose benefits have not been demonstrated to outweigh the risks through peer-reviewed studies or clinical practice. Requiring that care be clinically reasonable would rule out discredited conversion therapy conscientious claims that at least 20 states outlaw trying to get gay kids to come out. The other cases are closer calls. Prohibitions on pubertal drugs are passed or are pending in several states to assert the gender identity of minors, although there is still no evidence of long-term risks to the ability of minors. fertility and bone density.

America’s culture wars led many to believe that conscience was not just a card that the defeated camps played when they had nothing left to lose. But it can be more than that. Nations vigorously defend the consciences of those who refuse. Congress and courts must also protect the conscience of service providers. More than a century has passed since judges flexed their common law jurisdiction to offer any major type of relief. Dobbs offer a reason to restore that muscle memory and realize the limited defenses of medical disobedience.

Dov Fox is a professor of law at the University of San Diego School of Law and director of the Center for Health Law Policy and Bioethics. He is the author of “Medical disobedience” and “Reproduction Rights and Mistakes: How Medicine and Technology Are Doing Reproduction and the Law“As well as the host of the podcast”Sponsor 9623. “

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