Ethicists Asked to Weigh in on Medical Necessity of Abortion
October 1, 2022
Some ethicists are finding themselves in a tricky situation in the aftermath of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision.
Anecdotally, Holly Fernandez Lynch, JD, MBe, has heard reports of institutions requiring ethics committees to “sign off” before permitting abortions due to new legal restrictions. Clinical ethicists can play a legitimate role in abortion decisions, she says, but only in cases when there is a true ethical challenge (e.g., a conflict about surrogate decision-making for a cognitively impaired pregnant person).
Recently, Fernandez Lynch co-authored an online editorial in which she and colleagues argued there is no legitimate role for ethicists to play in confirming the medical necessity of abortion.1 “Judgments about whether abortions can be provided under new post-Dobbs restrictions are not ethical judgments, but clinical and legal ones,” explains Fernandez Lynch, assistant professor of medical ethics at the University of Pennsylvania. Clinicians must make medical recommendations about whether abortion is needed for treatment purposes. Then, institutional legal counsel must determine whether that fits within the parameters of what is legally permissible. “To avoid confusion, ethicists should not involve themselves in those non-ethical judgments,” Fernandez Lynch cautions.
Instead, ethicists should “emphasize that it is always ethically appropriate to provide medically necessary care that the patient has requested and consented to, regardless of what the law says,” Fernandez Lynch says.
At the same time, ethicists can affirm these are clinical and legal judgments, and can point clinicians to legal counsel for appropriate guidance.
Emily Largent, PhD, RN, also is concerned about institutions asking ethicists to sign off on abortions — that is, to determine whether an abortion fits within a state’s legal exception to an abortion ban. Clinicians may need some interpretation of the state law from hospital risk managers or attorneys. “But this is fundamentally a medical question,” asserts Largent, editorial co-author and assistant professor of medical ethics and health policy at the University of Pennsylvania.
Largent says if ethicists are asked to weigh in, they should suggest a second medical opinion (if time permits) and encourage the institution to clarify any legal questions, ideally before there is an emergency. Institutions also should assure clinicians they will have support from the ethics committee in the event of overzealous prosecution.
For ethicists, Largent says it is important to realize becoming involved in decisions on abortions “can delay medically necessary care for pregnant persons — and it is a medical question, not within an ethics committee’s appropriate remit.”
REFERENCE
1. Fernandez Lynch H, Joffe S, Largent EA. ‘Is an abortion medically necessary?’ is not a question for ethicists to answer. Stat. Aug. 15, 2022.
If ethicists are asked to weigh in, they should suggest a second medical opinion (if time permits) and encourage the institution to clarify any legal questions, ideally before there is an emergency. Institutions also should assure clinicians they will have support from the ethics committee in the event of overzealous prosecution.
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