It May Be Ethical for Providers to Refuse to Comply with Abortion Laws
September 1, 2023 5 minutes read
The overnight change in which women’s reproductive healthcare decisions went from protected by the U.S. Constitution to unprotected and criminalized in some states has created an ethical quandary for healthcare clinicians.
What should providers do when state law conflicts with their ethical duty to preserve the health and life of a patient? Each provider and healthcare organization has been left to interpret their states’ laws with little guidance and precedence. Some hospitals are sued for not providing care when a pregnant patient’s life was in danger. In other cases, physicians are required to visit their employer’s legal office for permission to save patients’ health and lives.
The authors of a new paper defend physician noncompliance with anti-abortion legislation, arguing physicians’ obligations to comply with the law are defeated when the law is illegitimate.1
“Our position in the paper is an ethical question: Do providers have an obligation to follow laws that are bad medicine?” says Pierce Randall, PhD, HEC-C, an assistant professor at the Alden March Bioethics Institute at Albany (NY) Medical College. “We could say you don’t have any obligation to follow this law that is not legitimate. But the provider could say, ‘I’ll get in trouble.’ We’re not trying to guilt providers into breaking the law.”
Laws governing medicine are important to screen out the snake oil salesmen and frauds, which were common before medical regulation, Randall notes.
“Doctors can do a lot of things that others are not allowed to do because they’re part of a well-regulated industry,” he notes. “That’s a good reason to follow laws — even laws that are not good laws.”
Ethicists may argue that anti-abortion laws can cause harm in ways that other laws regulating medical care do not.
“Anti-abortion laws are so harmful to patients and can cause patients to get significantly worse to the point that they are about to die before the provider can give them an abortion,” Randall says. “These laws are very unjust and fail to protect women, and they force doctors to do something contrary to medical practice.”
For example, in states with abortion bans, women with ectopic and molar pregnancies are prevented from receiving standard care quickly.
“One case is where patients have a c-section scar pregnancy. There are cases where a fetus could develop for some period of time, but probably isn’t viable,” Randall says. There also is significant risk of uterine wall rupture that could possibly leave a patient infertile, he notes.
State anti-abortion laws and exemptions are written so narrowly they require clinicians to significantly burden patients or do things that create fundamental risk to the patient before they are allowed to treat them.
“We would say they are not a law at all because they fail to protect patients’ basic rights,” Randall says. “They don’t provide doctors with a strong moral justification to follow the law. We’re not advising them to break the law, but we think there is not an independent moral reason to follow the law, as there might be in other cases.”
Before the overturn of Roe v. Wade, ethical medical decisions could involve whether to honor a patient’s or guardian’s wishes in the event of extubating a patient or leaving a patient connected to life-preserving care and technology.
Those cases sometimes go to court, as happened with the Terri Schiavo case that began in the 1990s. Public outrage against Schiavo’s husband’s decision to stop artificially prolonging her life led to a long legal battle. In 2003, the state of Florida passed a bill that gave then-Gov. Jeb Bush authority to prevent the removal of the feeding tube, which had sustained her in a vegetative state for 15 years.2
But the anti-abortion laws have nothing in common with previous medical debates and ethical challenges because the laws do not hinge on what the patient and guardians want — only what legislators want done with the patient’s body.
“Sometimes, doctors may disagree on whether to extubate a patient. Where does ethical guidance fit with respect to the law?” Randall asks. “What if the ethical thing to do is not the legal thing to do?”
When laws are contrary to the norms of medicine, they do not have justification — and, ethically, there is nothing wrong from breaking them, Randall adds.
There are other cases where patients may not receive immediate urgent medical care, but those typically occur when the patient lacks capacity and refuses care.
“In New York state, if they refuse treatment, you have to go to court to override their objection, but you don’t have to go to court when it’s an emergency case and they’re about to die,” Randall explains. “We may have a patient who has a diagnosed mental health disorder, such as schizophrenia, and experienced a pregnancy loss.”
The miscarriage is incomplete, and it is dangerous for the patient to continue without standard miscarriage treatment. But that is different from what is happening to women in abortion-ban states because in that case, the ethical dilemma is between what the patient, who lacks capacity, wants and what clinicians want, which is to treat the patient. These cases may go to court because a patient’s rights are important in decisions about medical care.
“It’s a conflict between what the patient wants and what the provider thinks is in their best medical interest,” Randall explains. “Whereas, in states like Texas, there is a patient who clearly wants an abortion and wants the fetus out of their body, and providers know it is medically necessary for the patient.”
But the government is stepping in and telling them both, “No.”
The conflict between ethical practice, best medical practice, and laws that take neither into consideration is creating moral distress for many healthcare providers.
“Moral distress is different and distinctive because it’s related to guilt, shame, and other emotions that imply a moral judgment about what you’ve done when you are forced to participate in wrongdoing,” Randall says. “The only way to overcome moral distress in a particular case is to reflect on what your obligations are, what your reasons are for doing what you are doing, and whether or not they are good reasons. I think the cure for moral distress is moral reasoning and more reflection. That’s what we’re trying to do in the paper.”
Providers will come to different conclusions after reflecting on their ethical and medical obligations vs. legal requirements.
For instance, some have decided to move out of states that force them into moral distress, and that can work for them. Others decide they will continue to practice in abortion-ban states despite bad laws because there patients will need reproductive health and pregnancy services. That is a reasonable response, too.
“In a lot of countries in the world, abortion is illegal, and they still have doctors who practice obstetrics — and they should,” Randall says.
Another ethical reflection could be related to the provider’s license and resources. After years of study, accruing student loan debt, and working to obtain a license, a provider’s reflection could include the personal damage they would suffer if they broke the law.
“If someone has $200,000 in medical school debt, or a family to support, or if you think you’re providing a service in Texas, maybe it’s OK to follow the laws,” Randall says. “Some of these circumstances are such that it’s too much of a risk to their careers to [break] the law.”
REFERENCES
- Randall P, Mago J. Abortion restrictions: The case for conscientious non-compliance on the part of providers. J Med Ethics 2023; May 8;jme-2023-108964. doi: 10.1136/jme-2023-108964. [Online ahead of print].
- Perry JE, Churchill LR, Kirschner HS. The Terri Schiavo case: Legal, ethical, and medical perspectives. Ann Intern Med 2005;143:744-748.
What should providers do when state law conflicts with their ethical duty to preserve the health and life of a patient? Each provider and healthcare organization has been left to interpret their states’ laws with little guidance and precedence. Some hospitals are sued for not providing care when a pregnant patient’s life was in danger. In other cases, physicians are required to visit their employer’s legal office for permission to save patients’ health and lives. The authors of a new paper defend physician noncompliance with anti-abortion legislation, arguing physicians’ obligations to comply with the law are defeated when the law is illegitimate.
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