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Current Affairs

A Magazine of Politics and Culture

Abortion Restrictions Force Medical Personnel To Commit Grave Ethical Violations

In a post-Roe world, doctors will increasingly face a terrible choice: to follow heinous laws or to uphold ethical obligations to provide patients the care they need. When law and professional duty conflict, medical personnel must carry out their duty regardless of the state’s commands.

Every now and then, in a pediatric medical practice, a parent of a patient will faint or have some kind of medical issue that needs attention. Once, when I was still in practice as a pediatrician, a parent fainted in the clinic lobby, and I was called to assess. It turned out the woman had had an abortion just a day or two prior. I don’t remember whether it had been medical or surgical or where she had gone (this was Texas, so one wonders). But she’d been bleeding, and she hadn’t eaten anything all morning. When I got to her, she was alert and medically stable, but I thought she needed urgent evaluation. She agreed but declined ambulance transport to the local emergency room (I would have done the same thing, as ambulance bills can be a nightmare).

In the days since the Supreme Court’s reversal of Roe v. Wade, I’ve been thinking about how most people working in the medical community, even those who do not themselves perform abortions or specialize in the healthcare of pregnant people, will be affected by this blatant denial of patients’ medical freedom. Where there are people of reproductive age, there will be people who need or who have had abortions; some of these people will need (possibly) urgent medical or surgical care, and their healthcare needs may be related to the pregnancy or something else entirely. Hence, the mother in my clinic who fainted for unknown reasons (abortions are very safe, and I never found out the cause of the woman’s symptoms). Even though I was not technically the woman’s doctor, I was for the moments after she fainted. Had I been mandated to call the police on her because she’d had an abortion, I cannot imagine having done so. And calling the police on her would have been a gross violation of the informal trust she had placed in me (and in our clinic to take care of her child).

The problems with the Supreme Court’s Dobbs ruling are many. But a particularly heinous one is that abortion restrictions force doctors and clinical staff to commit ethical violations of the highest order. Abortion is healthcare, and to prevent doctors from providing abortion is to force them to withhold care and act in violation of their basic duties to patients.

This is not a new problem. Doctors have written about having to consult in-house legal teams before performing abortions, for instance. Texas Senate Bill 8, implemented last fall, has been found to “adversely” affect patient care and “endanger” people’s lives. And already, new state restrictions emboldened by the Supreme Court ruling are impacting clinical care. In Missouri, one attorney tweeted: “Women are going to hospitals with a life-threatening nonviable ectopic pregnancy but the doctors can’t do anything about it until her vitals start crashing, which the doctors hope is enough of a medical emergency to satisfy” the attorney general. The tweet was followed by another from an obstetrician/gynecologist who heard that doctors are indeed observing cases of ectopic pregnancies until the patients have “unstable” vital signs (at which point, presumably, they will intervene).

Now, altering care to suit draconian and often unclear laws may be increasingly common. Doctors may even have gotten used to it. As a physician, I know that modern healthcare practice often forces clinicians to satisfy laws or insurance requirements before serving the patient’s needs. Some of these day-to-day requirements (prior authorizations, other administrative burdens) are harmful but not necessarily lethal (although they can be extremely harmful, as in the case of one woman whose MRI denial reportedly resulted in a delayed diagnosis that ultimately led to an amputation that might have been prevented, according to the lawsuit filed by the woman’s family). But we (the general public, all doctors) need to remember that altering clinical practice to suit unjust laws that directly go against accepted standards of care is not normal. Doctors are responsible for caring for their patients, period.1

We often think of doctors as having “taken an oath.” The moral and ethical imperatives of the modern Hippocratic Oath call on doctors to respect patients’ privacy and treat them as human beings.2 Beyond oaths, there is a major power imbalance between doctors and patients; having the power to heal or to harm, one ought to be sober about one’s duties to patients and consider whether the law represents the best interest of the patient. Furthermore, modern medical ethics rests on four concepts: autonomy, beneficence, non-maleficence, and justice. Each is clearly relevant in regard to abortion healthcare. Ultimately, under any reasonable standard, denying necessary medical care ought to be considered malpractice (forcing doctors to commit malpractice was a concern that helped bring about Roe in the first place).

Illegitimate, unelected bodies such as the Supreme Court may make rulings, but healthcare is healthcare. What was an essential procedure before the ruling, remains one now. If our healthcare system is facing a crisis—with burned out professionals and unsatisfied patients—this ruling threatens to make that even worse. While Pew reported in 2019 that Americans overall had favorable views of medical professionals, Gallup this year notes that most Americans aren’t very satisfied with the healthcare system or the care they receive:

“Americans across racial and ethnic groups agree that healthcare is too expensive and that costs do not match the quality of care. More than 90% of adults among each group say the general cost of care is too high and that they pay too much for the quality of care they receive.”

If doctors and clinic personnel choose to deny patients care based on this ruling, besides the obvious harm that will befall patients, imagine the distrust that this will foster between the public and the medical community (particularly among people of color, who have good reason not to trust the medical profession). As noted in a recent article in STAT news:

Now, with Roe v. Wade overturned, that phenomenon [mistrust] is expanding. To Sarah Prager, professor of obstetrics and gynecology at the University of Washington, all doctors, not just reproductive specialists, should be up in arms about how abortion bans fracture the doctor-patient relationship. “If clinical spaces become unsafe for patients, that is just a really bad precedent,” she said. “Our ability to take care of patients relies on trust, and that will be impossible moving forward.”

To restrict abortions is to prevent evidence-based care, she went on — but it also affects other medical encounters, too. “These sorts of restrictions are really going to put a damper on people seeking care, even in very normal, very legal situations.”

By interfering with the doctor-patient relationship to deny people necessary care, the Supreme Court has acted in ways similar to an insurance company. This is yet another move that will further corrode Americans’ faith in the healthcare system. It also reminds us that resistance to anti-abortion efforts must be accompanied by a push for Medicare for All, which would include free abortion.

The medical community has put out responses to the ruling. The American College of Obstetrics and Gynecology wrote that they would continue to support “all people in the ongoing struggle against laws and regulations that violate and interfere with the patient-physician relationship and block access to essential, evidence-based health care.” The editors of the New England Journal of Medicine strongly condemn” the decision. The American Medical Association called the decision “an egregious allowance of government intrusion into medicine” and “a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.” The American Public Health Association called it a “catastrophic judicial failure” that “portends to jeopardize the health and lives of all Americans.” Physicians for a National Health Program, a single-payer advocacy group, sent out an email with their estimate “that maternal mortality will increase up to 15% overall, and up to 33% for people of color” as a result of the ruling.

These statements are all admirable and correct. But what we need is a mass movement of the public backing a profession-wide vow to continue giving abortion and abortion-related healthcare to all those who need it in defiance of this ruling and a broad commitment not to report patients to authorities for having had abortions or miscarriages. “One has a moral responsibility to disobey unjust laws,” as Martin Luther King, Jr., put it. The problem is that citizen vigilante laws, such as Texas S.B.8, encourage ordinary people to report on each other. Such laws are crafted precisely with the purpose of turning anyone and everyone into a potential informant, thus destroying the possibility of solidarity among us (and making the experience that much worse for those seeking abortions). In this climate, individual acts of resistance become very risky. This is why it’s imperative that the entire medical community—including hospitals, clinics, and institutions that offer medical care—as well as state leaders object to this ruling and vow not to follow it if at all possible. There needs to be a commitment not just to opposing the laws, but to performing civil disobedience in the service of proper medical care. When asked to choose between following the law and caring for their patient, a doctor must choose their patient.

In fact, the physician’s responsibility to the patient was considered of primary importance in Roe:

“The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”

While this logic might sound paternalistic (indeed, the Court’s prioritization of physicians’ rights has been criticized by feminists as a “(male) doctor knows best” attitude that reflected more concern with   the undermining of doctors’ rights than patients’), the point is that the physician has always had a responsibility to the patient, and in Roe the Court recognized how important it was for the state not to second-guess medical decisions it was unqualified to pass judgment on.

Sometimes the medical profession has gone the wrong way. As Leslie J. Reagan wrote in When Abortion Was a Crime, “the medical profession organized to criminalize abortion in the mid-nineteenth century and to oppose those very laws a century later.” When it became clear that medical autonomy was being hindered by abortion restrictions, physicians came around. Reagan cites the example of Dr. Alan Guttmacher, a liberal physician who was initially uncomfortable with radically altering abortion restrictions but who changed his mind after having seen the “horrendous results of the criminal abortion laws.” He went as far as to say that “abortion on demand is the only civilized way to handle the problem.”

Media stories sometimes present the issue as a kind of medical quandary. The Washington Post recently wrote:

“There was a woman in Wisconsin carrying a fetus with anencephaly, a fatal birth defect in which parts of the brain and skull are missing. With abortion likely illegal in the state, the clinic had canceled her appointment for a termination later that day. But forcing her to continue the pregnancy was cruel and risked complications. What should I do? the doctor wrote. As colleagues in other parts of the Midwest responded with leads for out-of-state clinics, Verma mentally added the case to her growing list of gray-area situations where the new abortion bans fail to capture the complexity of modern medicine and leave doctors in the lurch.”

But is the medicine truly complex here? I don’t think it is. It seems pretty straightforward. The patient was carrying a fetus with a fatal brain defect and had chosen to have an abortion. Forcing her to continue to carry the pregnancy would be cruel and a risk to her health. The problem is not the “complexity” of the doctor’s decision. It’s that the unelected Supreme Court decided to intrude on this medical matter and overturn the patient’s right to receive this medical care. The law makes no sense in light of medical reality. The doctor in the article said as much: “The decision is creating confusion and fear because we know what to do medically, but we don’t know what we can do based on the law.” The quandary, then, is not about what care we should be providing, but how to deal with the fact that the law is directly prohibiting doctors from providing proper care.

The Post article goes on to consider other dilemmas such as how other medical procedures could be impacted by concern for the fetus, or how some state laws are so complex as to be indecipherable to doctors. The assumption is that each and every professional will (or ought to) be extra careful to make sure they follow the law to the letter. Again, while this may be what doctors are used to, this is wrong. The proper question is why anyone in the healing profession should follow this ruling at all. The medical profession ought to outright refuse to comply. Professionals can be complicit in the state’s overreach and violation of patients’ medical freedom—which will keep us on a path toward state control over women’s bodies and state-mandated unethical healthcare, which Roe rightly treated as unconscionable—or they can be what the public needs them to be: humane professionals who will live up to the great responsibility entrusted to them and who will protect their patients from harm.

  1. The same article about the MRI denial notes that “Ninety-three percent of physicians report that prior authorizations delay access to necessary care, according to a 2021 survey by the American Medical Association (AMA).” 

  2. According to the National Library of Medicine at the National Institutes of Health, the original version of the oath does not “explicitly contain the phrase, ‘First, Do no Harm.’” Modern versions have rightly removed the command that doctors not administer abortifacients, since that is incompatible with medical ethics. 

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