Days after Texas banned most abortions at about six weeks of pregnancy in September 2021, Dr. Alan Braid revealed that he had “given an abortion to a woman who, while still in her first trimester, exceeded the state’s new limit.” dr. Braid wrote in a Washington Post op-ed that when he was a doctor for Roe v. Wade, he had “watched teenagers die from illegal abortions. One I will never forget. When she came to the ER, her vaginal cavity was full of She died a few days later from massive organ failure, caused by a septic infection.” Dr. Braid concluded, “I can’t sit back and watch us go back to 1972.”
Since Dobbs v. Jackson Women’s Health Organization outvoted Roe, many clinicians across the country will be putting their careers and freedom on the line if they provide abortion care. seventeen states have enacted, or are attempting to, an almost complete ban on abortion. Many of these bans allow for almost no exceptions, including for rape or a woman’s health. Now providers who illegally terminate a pregnancy face penalties ranging from a suspension for practicing drugs to a $100,000 fine to life in prison.
Michigan Chief Medical Executive Natasha Bagdasarian has written that these laws force physicians to choose between breaking the law and “breaking the oath we have taken on behalf of our patients.” An obstetrician-gynecologist from Missouri, David Eisenberg, said on “The Daily” podcast before Roe stated that his professional commitment to making abortion care available to patients in need is “part of my moral and religious worldview.” He added: “I am a conscientious service provider.”
Although Dr. Eisenberg didn’t say he would break any laws, some doctors who identify as conscientious healthcare providers in post-Roe America may attempt to give abortions in violation of state laws, just as many did for Roe. A federal statute should protect clinicians’ consciences in principled ways — not just for those who refuse care, but for those who provide it.
And if lawmakers don’t protect conscientious service providers, judges should. Courts may recognize a legal defense of medical disobedience that would significantly reduce the punitive sanctions some states impose for providing clinically reasonable services in the name of conscience. This partial defense must also waive possible side effects of a conviction for a crime, such as revocation of the license and disqualification of the right. That restriction would go a long way toward restoring the unilateral exemptions already entrenched in the United States.
The US legal regime governing medical conscience has been broken. While conscientious service providers find virtually no refuge in the conscientious clauses that have been codified in almost every state, refusers are almost categorically protected. And just about all of these laws of conscience are reserved for denial of care. Conscientious refusers are often protected from discharge, disciplinary action, liability, or being found guilty for violating standards of care and endangering patients, even in serious ways. Conscientious refusers usually do not need to tell patients about their options or help them access care elsewhere. But there is little protection for doctors who have equally conscientious reasons for performing abortions.
Certainly, there are crucial differences between the various services that conscientious service providers might provide. Some are safer or more effective than others. Some require expensive facilities and staff, while others require no more than a prescription block. Some are completely within the medical norm, while others push or exceed boundaries.
These details are important. But the moral commitment to treating patients can be just as sincere and noble as the values that drive other physicians to reject patients. More importantly, conscientious caregivers respect patients’ wishes, while conscientious refusers ignore them.
Too often, in the eyes of the law, only the conscience of refusers counts. This asymmetry drives desperate patients underground and selectively burdens conscientious caregivers. It is true that accommodating conscientious health care providers would undermine the government’s deliberate judgment that people should not have access to health care that the government has banned. But on particularly charged questions – about life and death, disability and identity – freedom of conscience in medicine can sometimes be important enough to support meritorious professions. This could even be at the expense of other state interests, as long as the adjustments are limited by the harm they cause to other people.
One reason to protect conscience in medicine is to preserve the moral integrity of clinicians who claim it. This also applies to conscientious providers. Forcing doctors and nurses to watch and do nothing to help patients in need goes against clinicians’ fundamental mission to heal, promote health, and alleviate suffering. Openness to conscientious dissent, within certain limits, also allows a pluralistic society to adapt to moral changes from within.
Congress or the courts should recognize a partial defense of medical disobedience. This defense should not be available to any clinician who invokes conscience to provide prohibited care. In the related context of religion, High Council adopted a know-it-when-I-see-it test to determine whether a person’s perceived beliefs qualify as genuine and morally compelling. That test would rule out “an alleged claim so outlandish”, odious or selfish “that he has no right to protection”.
And doctors should show more than they were acting out of deeply held beliefs. The care they conscientiously provide must also be medically indicated and come with the informed consent of a patient or an appropriate surrogate. So a mercy killing of someone pressured to exercise the option would not qualify. Nor would an intervention whose benefits have not been proven to be worth the risks through peer-reviewed studies or clinical practice. Requiring care to be clinically reasonable would preclude claims of conscience from undergoing the discredited conversion therapy banned in at least 20 states for attempting to rehabilitate gay children. Other cases are closer conversations. In some states, puberty blockers have been passed or pending to confirm a minor’s gender identity, although there is still evidence about long-term risks to fertility and bone density.
The American culture wars have convinced many people that conscience has become nothing more than a card that defeated camps play when they have nothing else to lose. But it can be more than that. States vigorously protect the consciences of refusers. Congress and the courts should also protect the conscience of providers. It’s been more than a century since judges bent their common law powers to enact an important category of mitigation. dobbs prompts to restore that muscle memory and recognize a limited defense of medical disobedience.
Dov Fox is a law professor at the University of San Diego School of Law and director of the Center for Health Law Policy and Bioethics. He is the author of “Medical Disobedience” and “Birth rights and injustice: how medicine and technology are re-creating reproduction and the law“as well as the host of the podcast”Donor 9623.”