Now that the Supreme Court has overturned Roe v. Wade, medical ethics experts say many physicians will be caught in a bind: unable to fulfill their professional obligations to provide care to their pregnant patients because of state laws that forbid it.
Physicians take an oath to "do no harm" as part of their medical training. They learn about how to stay up to date, throughout their careers, on the best standards of care for treatment. And they learn about patient privacy and safety, and how patients should have a say in their care based on their values and lived experience.
"The goal is for a patient to make a decision for themselves about what's right," says Dr. Stephanie Mischell, a family physician in Dallas who is a fellow with Physicians for Reproductive Health.
But too often, Mischell says, the conversations she has with pregnant patients have less to do with their values and health and more to do with navigating a labyrinth of legal requirements. "There's a running list of different types of restrictions and bans that exist on abortion care, whether it's pre-viability bans, mandatory waiting periods, mandatory counseling, bans on telehealth – Texas really has all of them," she says.
Under the 6-week abortion restriction in Texas, many patients don't know they're pregnant early enough to get a legal abortion. "Every single day I have a conversation with a patient in which I say, 'Abortion would be a really safe and valid option for you and I'm so sorry that I can't do it here,' " she says.
Two dozen medical groups, including the American Medical Association and the American College of Obstetricians and Gynecologists, laid out the ethical dilemma faced by physicians in an amicus brief to the Supreme Court in the case Dobbs v. Jackson: "The ban forces clinicians to make an impossible choice between upholding their ethical obligations and following the law," the brief reads.
That "impossible choice" has already been a feature of reproductive health care in the South for years, says Dr. Louise King, an obstetrician and gynecologist at Brigham and Women's Hospital in Boston, who's also an attorney and ethicist. "It's just going to get much, much worse," she says.
"Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful. And the penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions," King explains. "How can you possibly resolve that conflict?"
Watching patients get 'sicker and sicker'
Clinicians in states with abortion restrictions that have just gone into effect – or will imminently – are racing to understand the exact outlines of the restrictions in cases where complications arise in pregnancy.
"It's very frightening and confusing for physicians and the whole team that cares for patients to know, what can we do, what is OK and what's not OK?" says Dr. Lisa Harris, an ob-gyn and professor at the University of Michigan who joined a university task force last December to prepare for Roe to be overturned. She wrote about their work for the New England Journal of Medicine in May, and her arguments were cited in the Dobbs dissent.
She has been puzzling over the language in Michigan's decades-old abortion law – currently on hold – which makes abortion a felony except when it "shall have been necessary to preserve the life of such woman." A variation of that language is included in most abortion restrictions in other states.
"How imminent must death be?" Harris asks. "There are many conditions that people have that when they become pregnant, they're OK in early pregnancy, but as pregnancy progresses, it puts enormous stress on all of the body's organ systems – the heart, the lungs, the kidneys. So they may be fine right now – there's no life-threatening emergency now – but three or four or five months from now, they may have life-threatening consequences."
So, she asks, does the language in these laws allow for abortion early in pregnancy if a life-threatening complication could arise later?
If not, the laws put both the physician and patient in the position of just standing there to "watch somebody get sicker and sicker and sicker until some point – and where is that point? – where it's OK to intervene and we won't be exposed to criminal liability," says King, who is vice chair of ACOG's Committee on Ethics.
Cancer diagnoses raise questions as well, Harris says. "There are some cancers that the hormones of pregnancy make grow and spread faster, and people will choose to end a pregnancy because of that or because the treatment that their oncologist is recommending would be toxic or potentially lethal to a developing baby," she says.
If abortion is not an option in their state, then must they carry their pregnancy to term and delay treatment? "That might mean their cancer is more serious and more widespread than early in the pregnancy, and so they may indeed have a higher risk of dying, but it's not a risk that's going to happen immediately – it might be a recurrence in months or years."
If Michigan's abortion ban does take effect, Harris also wonders if it would be legal for her to prepare patients to receive abortions out of state by doing bloodwork and ultrasounds in Michigan.
Even for providers in states where abortion is reliably legal, like King in Massachusetts, there are legal and ethical questions. "Let's say that I'm providing abortion care to persons that I know that are traveling to me from out of state – does that mean then that I can't travel, for example, to Texas?" she asks.
"Nobody has the answers right now, and my fear is that the fear that doctors and nurses and health care administrators and leaders will feel – their fear of intervening – will mean that some patients will die when they didn't need to," says Harris.
Messiness and fear in the months to come
The path to clarity on these questions is itself unclear.
"They could be resolved by a legislature trying to engage in more specificity, which they will not do," predicts Kim Mutcherson, co-dean of Rutgers Law School whose scholarship focuses on bioethics and reproductive justice. In places where abortion is illegal, legislators will broadly "want to make it as difficult as possible, and one of the ways that you do that is [by] creating a standard where people don't know with specificity whether what they're doing is right or wrong."
Instead, she says, "You have to wait until somebody gets in trouble. You have to wait until there's a case. You have to wait until somebody gets arrested. And then you start to understand, 'OK, this is what the parameters are.'" Clarity through the court system is likely to take months, if not years.
In the meantime, Dr. Amy Addante, an ob-gyn based in Illinois who's also a fellow with Physicians for Reproductive Health, suspects the new legal restrictions on abortion will have a chilling effect on health care institutions and medical providers. "From a medical malpractice and legal standpoint, I think a lot of health care systems, and even individuals, are going to be very risk averse," she says.
"I'm scared for my colleagues who are providing [obstetrical care] in these states where they can't just make medical decisions based on good clinical judgment and evidence, but also have to consider 'What is the law?'" she says. In most medical schools and residencies "there is no class on 'How to make sure what you're doing is legal in obstetrics,' " she adds.
"I have no interest in going to jail – I did not go to medical school to go to jail," Dr. DeShawn Taylor, an ob-gyn who provides abortions in Arizona told NPR in May. Arizona is one of many states with an abortion ban that could be enforced if Roe is overturned.
"I'm just going to be honest – I don't have the complexion to assume the risk and say, slap my hand later. We see the [pregnant] people who have been criminalized already – they have not been white," she said. "So I have no illusions about where I stand on the issue and what type of risk I can take and not take."
King says, from an ethical standpoint, "I can only help patients if I keep my license, so if you're a utilitarian, you'll say, 'Well, the greater good demands that I just comply with these laws because if we all get our licenses taken, there'll be nobody to care for anyone,' " she explains.
With all of this uncertainty, how things actually play out may depend on what jurisdiction you're in, says Harris. "I think it's just going to be profoundly local," she predicts – state by state or even county by county. "You'll see some prosecutors in some counties will say, 'I'm not prosecuting this, it doesn't break the law,' or 'I don't want to enforce the law.' "
"It's going to be very messy," she adds.
Physicians and medical groups didn't always champion abortion
Doctors played a key role in the movement to outlaw abortion in the U.S. in the 1860s – specifically, doctors who were members of the American Medical Association. Today's AMA has become increasingly vocal in support of abortion rights. A few years ago, it sued North Dakota over an abortion ban.
In a statement released Friday, AMA President Dr. Jack Resneck Jr. condemned the Dobbs ruling and said it is "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." He also said the AMA would fight these restrictions, which may signal more legal action from the group on abortion.
Former AMA president Dr. Gerald Harmon told NPR in early June that the AMA hasn't surveyed its 270,000 dues-paying doctors about abortion specifically — and he says individual physicians may have religious or conscience-based objections to abortions — but as an organization, the AMA is united in fighting excessive government intrusions into medical care.
"We speak with one voice against government – politicians and lawyers and judges – in the exam room, whether it's maternal fetal medicine, women's reproductive health, gender [identity] medical treatments," he said. "We need to be more outspoken and protect our ability to perform medically appropriate safe abortions and be able to teach that."
Not all physicians subscribe to this view, nor do they see physicians as having an ethical conflict when treating patients in places that restrict abortion. In fact, the American Association of Pro-Life Obstetricians and Gynecologists filed its own amicus brief to the court enumerating the risks of abortion and saying opposition among doctors is part of the medical tradition. "In declining to perform abortions, doctors are keeping with the longstanding tradition of their profession. Abortion has been deemed contrary to sound medicine for thousands of years," the brief reads.
But most medical groups and journals defend access to abortion as a legitimate and safe health care option, especially in recent weeks. "The fact is that if the US Supreme Court confirms its draft decision, women will die. The Justices who vote to strike down Roe will not succeed in ending abortion, they will only succeed in ending safe abortion. Alito and his supporters will have women's blood on their hands," the Lancet editorial board wrote in May.
King says physicians, hospitals and medical groups haven't always spoken "loudly enough" in defense of abortion. "I've always been outspoken, but I'm in the minority," she says. "Typically, hospitals are not vocal about providing abortion care because they don't want to invite controversy and protests on the street. That makes sense – we don't want to disrupt patient care," she says.
But the country has reached a tipping point, she argues. Abortion providers like her "should all be very proud of the care that we provide and very vocal about how we all believe it to be essential health care."
Pien Huang contributed to this reporting. Copyright 2022 NPR. To see more, visit https://www.npr.org.
Transcript :
AILSA CHANG, HOST:
What does today's Supreme Court ruling allowing states to ban abortion mean for doctors? Well, many leading medical groups and journals are condemning the decision, including the American College of Obstetricians and Gynecologists. Here's ACOG President Dr. Iffath Abbasi Hoskins at a press briefing this afternoon.
(SOUNDBITE OF ARCHIVED RECORDING)
IFFATH ABBASI HOSKINS: Today is a very dark day in health care. It is a dark day, indeed, for the tens of millions of patients who have suddenly and unfairly lost access to safe, legal and evidence-based abortion care.
CHANG: She went on to say the Supreme Court is forcing clinicians to, quote, "betray the sacred covenant that we made to our patients."
NPR health policy correspondent Selena Simmons-Duffin has been reporting on this very issue and joins us now. Hi, Selena.
SELENA SIMMONS-DUFFIN, BYLINE: Hi, Ailsa.
CHANG: So what is this sacred covenant that Dr. Abbasi Hoskins is referring to there?
SIMMON-DUFFIN: So this is the idea for physicians that when a patient comes to you asking for help, you have a professional and ethical duty to provide them care. In an amicus brief filed in the case decided today, leading medical groups, including ACOG and the American Medical Association, laid out the way that abortion bans conflict with those duties. They described physicians as being forced into, quote, "an impossible choice between upholding their ethical obligations and following the law." And today, AMA President Dr. Jack Resneck condemned the ruling, saying it was, quote, "a direct attack on the practice of medicine and the patient-physician relationship." And he said AMA wouldn't give up the fight, which may mean legal action from AMA defending abortion.
CHANG: Though, I am sure there are physicians who are celebrating today, right? Like, how do they explain their positions at this moment?
SIMMON-DUFFIN: Yes. The American Association of Pro-Life Obstetricians and Gynecologists is one group that's celebrating. They released a statement that reads, quote, "as medical professionals, it is our highest responsibility to provide all our patients, mothers and pre-born children, the best health care possible." So their view is that there are two patients, the patient who's pregnant and the embryo or fetus.
CHANG: Well, already today, we have seen several states - Missouri, Alabama, just to name a couple - these states are announcing laws on their books banning abortions are now in effect. So what does that mean for the doctors in those states?
SIMMON-DUFFIN: Well, it means there's a whole new legal regime that could very well affect how they practice medicine. I've spent the past month speaking with physicians, medical ethics and legal experts about this. And I want to start in Texas, where a six-week abortion ban has been in place since the fall. It can give a preview for physicians in all of the states where the laws just changed.
So Dr. Stephanie Mischell works in Dallas. She's a family physician and a fellow with Physicians for Reproductive Health, and she's already very familiar with government regulations in the exam room.
STEPHANIE MISCHELL: You know, in Texas, there's sort of a, like, running list of different types of restrictions and bans that exist on abortion care, whether it's mandatory waiting periods, mandatory counseling, bans on telehealth. There are so many different types of restrictions, and Texas really has all of them.
SIMMON-DUFFIN: Her goal with patients, she says, is to provide them with accurate information to guide them through a decision and make sure they get the care they want. But too often, because of the Texas law that outlaws abortion around the time many people first learn they're pregnant...
MISCHELL: Every single day now, I have a conversation with a patient in which I say, you know, abortion would be the really safe and valid option for you, and I'm so sorry that I can't do it here.
SIMMON-DUFFIN: This is how the dilemma will play out in a lot of places with new or newly restrictive abortion laws. Patients will say, I want this care, and doctors will say, I can't provide it; the law won't let me. Then there are the ethical conundrums that arise in particular cases, when there are complications in pregnancy.
LISA HARRIS: It's very frightening and confusing for physicians and the whole team that cares for patients to know, well, what can we do? What is OK and what's not OK?
SIMMON-DUFFIN: Dr. Lisa Harris is an OB-GYN at the University of Michigan who's been working on a task force to prepare for the possibility that the state's 1931 abortion ban takes effect. That law would make abortion a felony except, quote, "to preserve the life of the pregnant woman." She says that language is incredibly unclear.
HARRIS: How imminent must death be? Does it mean they have to die immediately? There are many conditions that people have that, when they become pregnant - they're okay in early pregnancy, but as pregnancy progresses, it puts enormous stress on all of the body's organ systems - the heart, the lung, the kidneys. And so they may be fine right now, there's no life-threatening emergency now, but three or four or five months from now, they may have life-threatening consequences. So again, it's unclear. Could they have an abortion early in pregnancy to prevent a life-threatening complication later?
SIMMON-DUFFIN: If the answer is no, physicians will have to watch their patient get sicker and sicker until some undefined point when they can intervene and provide an abortion legally. Then there's cancer. Harris explains, sometimes pregnancy hormones make cancer spread faster, or treatment isn't safe to start during pregnancy. If abortion is not an option for patients in this situation, they may have to carry their pregnancy to term and delay crucial treatment.
HARRIS: That might mean their cancer is more serious and more widespread than early in the pregnancy, and so they may indeed have a higher risk of dying, but it's not a risk that's going to happen immediately and might be a recurrence in months or years.
SIMMON-DUFFIN: There are a lot of questions without easy answers, and Dr. Amy Addante says a lot of health care providers will be scared to do the wrong thing. She's an OB-GYN based in Illinois and a fellow with Physicians for Reproductive Health.
AMY ADDANTE: From a medical malpractice and legal standpoint, I think a lot of health care systems and even individuals are going to be very risk-adverse.
SIMMON-DUFFIN: Especially, she says, when the penalties are felony charges, loss of medical license or jail time. Illinois is a state where abortion is legal, and it's likely to become a haven in the Midwest for patients seeking abortions. But Addante says she's scared for colleagues in restrictive states.
ADDANTE: They can't just make their medical decisions based on good clinical judgment and evidence, but also have to consider what is the law. They don't teach you that in med school. There's no lecture on, you know, how to make sure what you're doing is legal in obstetrics.
SIMMON-DUFFIN: And again, many of these laws are unclear on the medical details. Of course, legislators could go in and make these laws more clear on these questions. But Kim Mutcherson, co-dean of Rutgers Law School, whose work focuses on reproductive justice, says she thinks that's unlikely. The ambiguity is a feature, not a bug, she says, because lawmakers are trying to make getting an abortion as difficult as possible.
KIM MUTCHERSON: That's exactly what all of this kind of legislation is meant to do. It's meant to put people in a position where they no longer feel confident and comfortable about providing the level of care that they think is appropriate.
SIMMON-DUFFIN: So instead of revised laws bringing clarity, Mutcherson says...
MUTCHERSON: You have to wait until somebody gets in trouble. You have to wait until, you know, there's a case. You have to wait until somebody gets arrested. And then you start to understand, OK, this is what the parameters are.
SIMMON-DUFFIN: That legal process will be slow. It will probably be state-by-state or even county-by-county. It will be confusing, she says, and it will be messy. Dr. Lisa Harris, the OB-GYN in Michigan, says in the meantime, with this ambiguity hanging over everything and providers stuck between their ethical obligations to their patients and the law...
HARRIS: My fear is that - the fear that doctors and nurses and health care administrators and leaders will feel - their fear of intervening will mean that some patients will die when they didn't need to.
SIMMON-DUFFIN: Selena Simmons-Duffin, NPR News. Transcript provided by NPR, Copyright NPR.