Doctors who want to defy abortion laws say it's too risky

Since Roe v. Wade was overturned, 13 states have banned abortion except in the case of a medical emergency or serious health risk for the pregnant patient. But deciding what cases qualify for a medical exception can be a difficult judgement call for doctors.

News reports and court affidavits have documented how health care workers sometimes deny women abortion procedures in emergency situations – including NPR's story of a woman who was initially not treated for her miscarriage at an Ohio ER, though she'd been bleeding profusely for hours.

In Missouri, hospital doctors told a woman whose water broke at 18 weeks that "current Missouri law supersedes our medical judgment" and so she could not receive an abortion procedure even though she was at risk of infection, according to a report in the Springfield News-Leader.

That hospital is now under investigation for violating a federal law that requires doctors to treat and stabilize patients during a medical emergency.

And a survey by the Texas Policy Evaluation Project found clinicians sometimes avoided standard abortion procedures, opting instead for "hysterotomy, a surgical incision into the uterus, because it might not be construed as an abortion."

"That's just nuts," Dr. Matthew Wynia says. He's a physician who directs the Center for Bioethics and Humanities at the University of Colorado. "[A hysterotomy is] much more dangerous, much more risky – the woman may never have another pregnancy now because you're trying to avoid being accused of having conducted an abortion."

Reports like these prompted Wynia to publish an editorial in the New England Journal of Medicine in September, calling for physicians and leading medical institutions to take a stand against these laws through "professional civil disobedience." The way he sees it, no doctor should opt to do a procedure that may harm their patient – or delay or deny care – because of the fear of prosecution.

"I have seen some very disturbing quotes from health professionals essentially saying, 'Look, it's the law. We have to live within the law,'" he says. "If the law is wrong and causing you to be involved in harming patients, you do not have to live [within] that law."

These issues have raised a growing debate in medicine about what to do in the face of laws that many doctors feel force them into ethical quandaries.

Medical organizations raise the issue

At the American Medical Association's November meeting, president Dr. Jack Resneck gave an address to the organization's legislative body, and recounted how doctors around the country have run into difficulty practicing medicine in states that ban abortion.

"I never imagined colleagues would find themselves tracking down hospital attorneys before performing urgent abortions, when minutes count, [or] asking if a 30% chance of maternal death or impending renal failure meet the criteria for the state's exemptions, or whether they must wait a while longer until their pregnant patient gets even sicker," he said.

The AMA passed resolutions at the meeting to direct a task force to create a legal defense fund and legal strategy for physicians who are prosecuted for providing abortions when that is the medical standard of care.

Not all doctors agree that the abortion restrictions are responsible for harming patients. Dr. Christine Francis of the American Association of Pro-Life Ob-Gyns, has written that the suggestion that these laws interfere with the treatment of miscarriages, ectopic pregnancies and other life-threatening conditions is "absurd."

She told a congressional subcommittee this summer that Ob-Gyns' "medical expertise and years of training make it very possible for us to discern when we need to intervene to save a woman's life."

But Wynia says it's striking how united nearly all medical professional groups have been in repudiating the Supreme Court's decision to overturn Roe v. Wade; they've argued essentially that it's thrown the medical field into chaos and threatens the integrity of the profession. He's now calling for those groups to back those statements up with substantive support for doctors who get in trouble for defying laws.

A history of civil disobedience

Physician civil disobedience played a role in legalizing abortion decades ago. Before the early 20th century, there was "almost a 'don't ask, don't tell' kind of silence" around physicians providing abortions, says Mary Ziegler, a legal historian at U.C. Davis who specializes in the history of abortion.

"By the 1940s, you get more of a crackdown on abortion, and it's framed as a vice or a racket — the same language you'd be using against organized crime," says Ziegler. "In the 1950s, hospitals begin forming therapeutic abortion committees in part to protect themselves from prosecution or lawsuits," she says, so abortions could be allowed in certain circumstances, like emergencies.

But some doctors felt that wasn't enough. Allowing abortions when someone's death is imminent may be straightforward, but what about when someone has a heart condition and pregnancy makes that condition worse? Or if a patient tells their doctor, 'If I can't get an abortion, I'm going to harm myself'? Ziegler says some doctors wanted more leeway to follow their conscience and provide abortions in more situations.

Then, in the 1960s, in the period leading up to Roe v. Wade, "some people then begin not just getting arrested because they happen to get caught, but trying to get arrested," she says, as a way to draw attention to what they saw as vague or unworkable abortion laws.

In Washington, D.C., Dr. Milan Vuitch was arrested 16 times for providing illegal abortions. In California, Dr. Leon Belous was convicted for referring a woman for an abortion in 1967. He appealed his case all the way to the state supreme court and won.

And in Canada, Dr. Henry Morgentaler was imprisoned for openly violating abortion laws. His notoriety came with risks — he received death threats and his Toronto clinic was firebombed twice. But ultimately the cases brought against him helped to progressively legalize abortion across that country.

The picture is very different today, at least so far. In the five months since the Supreme Court overturned Roe v. Wade, leading medical associations tell NPR they aren't aware of any health care workers who have actually been charged with providing an abortion in violation of these new state laws.

One reason that there's highly unlikely to be another Morgentaler now, says Ziegler, is because, "in the pre-Roe era often if you violated an abortion law, most people didn't really face much real prison time." Now, many of these state laws were written explicitly to criminalize doctors, with penalties that include felony charges, prison time, fines, and the loss of their medical license and livelihoods. The maximum penalty for doctors who violate Texas's abortion ban is life in prison.

The country has settled into an "uneasy reality," she says, where doctors aren't providing abortions in places where it's illegal — including in some emergency situations where abortion is technically allowed under the new restrictive legislation — and prosecutors aren't bringing charges. But she says that this won't last forever, whether because prosecutors get more aggressive, or because doctors begin to push the limits of these laws more.

Freedom and livelihood at risk

Medical care is very different than it was in midcentury America. It's not a "lone wolf" enterprise anymore: Doctors are often employed in corporate systems where every little item is tagged and multiple people are involved in every decision. Even if they want to defy the law or boldly skirt the edge of it, their employers may not let them — or a colleague could turn them in.

And doctors who are public about providing abortions say they already face a huge amount of risk.

"Just going to work in the morning risks my life," says Dr. Katie McHugh, an Ob-Gyn based in Indiana who provides abortions — Indiana has a law banning abortion, but it's currently blocked by the courts. NPR has reported on increased threats to abortion clinics and providers in recent years.

"There is no way that I would risk my personal freedom and jail time for providing medical care," McHugh says. "I would love to show my children that I am brave in the world, but our society will not allow me to be a civil-disobedient citizen in the way that some of these articles suggest, because I would be imprisoned, I would be fined, I would lose my license and I very well could be assassinated for doing that work."

And in today's environment, getting arrested for defying abortion laws on purpose might not actually be effective in getting laws changed, points out Dr. Louise King, director of reproductive bioethics for the Center for Bioethics at Harvard Medical School and an Ob-Gyn surgeon at Brigham and Women's Hospital.

King — who herself provides abortion care in Massachusetts, where it is legal up to 24 weeks — lays out what would happen if she were to get arrested intentionally in Texas, for example, where she went to medical school and did her residency.

"It's probable in Texas I'd lose the case," she says. "And then am I going to win it in the Supreme Court? No."

For these reasons, she's skeptical of calls to openly defy abortion laws and invite arrest. "I don't even see the point," King says. She adds that another consideration is how few providers there are who do abortion care — any doctor who's sitting in jail or waiting for a legal fight to resolve is one fewer person who's able to take care of patients.

Practicing up to the limit of the law

Still, there may be some middle ground for doctors, between going to jail and failing to provide the care they feel is needed, argues Katie Watson, a bioethicist and professor of law and humanities at Northwestern University's medical school. In many of the reported cases in which patients were endangered because doctors denied or delayed necessary care, she says civil disobedience wasn't called for. Instead, doctors need to become more comfortable working up to the limits of the law.

"My perspective is that interpreting life and health exceptions to be consistent with standard medical practice is not lawbreaking," she says. Those laws are generally intended to block elective abortions, and most have exceptions for medical emergencies. Plus, the federal government requires hospitals to stabilize patients, including when they need abortion procedures.

She acknowledges the legal risks and stiff penalties clinicians face, but says they need to better understand the legal protections they do have.

"Legislatures have put clinicians in a very terrible place, and it needs to change," she asserts. "And at the same time, clinicians need to step up in this moment and learn what the laws really do and do not prohibit and practice to the full scope that they can."

For doctors who do want to more directly defy abortion laws, and provide abortions when there's no medical emergency, Watson draws a distinction between doing it publicly to make a point — civil disobedience — and "covert disobedience," which is privately resisting the law.

"That is when you believe a law is unjust and you do not believe disobeying it in public will change it, but there is an identified other in danger in front of you that you have the resources to help," she explains. "So that's the Underground Railroad, that's hiding Jews from the Nazis — there's a long tradition of that as well."

Some abortion providers are taking that kind of approach. "They've got all these referral systems and they're sending patients around to different places to get care," King says. "They're mobilizing and [doctors] are moving and practicing in different states."

In these ways, she says, abortion providers are making sure their patients can still get care without risking their livelihoods and personal freedom — a stepped-up version of what they have been doing for years.

Support for doctors who take risks

Ultimately, health care workers need more institutional support in the face of laws they may feel are pushing them to violate their ethical obligations, says Wynia.

"This is a leadership issue," he argues. He worked for 18 years at the AMA, running the Institute for Ethics and the Center for Patient Safety. "There will be individual doctors who presumably will end up in court. And then the question will arise: Were they supported? Can they be supported?"

He wants organized medicine, accrediting organizations, and medical facilities like hospitals to unite in saying clearly that they will support clinicians who decide to follow the standard of care for a patient, even when that may violate state abortion laws.

Strong leadership at the institutional level could embolden doctors to follow their medical judgment and cause fewer instances of doctors delaying care to consult legal experts, Wynia says. In the face of tough cases, he hopes doctors will think, "If we do the right thing, we may end up in court, but we know we're not alone in this — we know we've got the whole medical establishment behind us."

AMA's resolutions earlier this month to support the doctors who do get charged in the future for providing abortions in keeping with medical ethics and standards of care are a good first step, he says. Those policies give direction to a task force to provide policies, legal strategies and financial resources, but there is no timeline for more details on what shape that will take.

In the long term, King, the bioethicist and surgeon at Harvard, says no amount of institutional support for doctors or calls for disobedience will fix how these abortion restrictions hamstring doctors, which can harm patients. "If we want to make change, we've got to change the laws," she says, and that means voting and political organizing and otherwise using the democratic process.

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