As healthcare professionals process the clinical, legal, and even personal implications of the recent Supreme Court decision to allow states to restrict abortion access or ban it entirely, ethicists play an important role.
“Although we are a diverse group of bioethics professionals, we share dismay that the healthcare landscape is being radically disrupted by the Dobbs v. Jackson decision with no accompanying policy structures to prevent widespread collateral harms,” the Association of Bioethics Program Directors said in a statement.1
Ethicists should learn about the abortion statutes in their states and the local history of prosecutions. “They should familiarize themselves with the literature on conscientious objection/refusal (passive and active) and be prepared to discuss these options with clinicians when occasions arise,” says Mary Faith Marshall, PhD, HEC-C, director of the Center for Health Humanities and Ethics at the University of Virginia.
Familiarity with relevant guidance from professional organizations, such as the American College of Obstetricians and Gynecologists (ACOG), can allow ethicists to support clinicians.2 Mitigating clinicians’ moral distress is another important role for ethicists.
“Ethicists should keep records of the number and types of ethics and moral distress consults that deal with reproductive issues,” advises Marshall, director of the Program in Biomedical Ethics at the University of Virginia School of Medicine.
Ethics also could contact OB/GYN departments and clinical staff to offer education about moral distress and services to address it. “However, the effects of limited or no access to abortion services will be felt in many other places in a hospital or medical center,” Marshall notes.
Marshall says ethicists should be prepared for abortion-related consult requests for situations such as violations of patient privacy; coercive interventions in pregnancy; prosecutions of patients who experience pregnancy complications, such as stillbirths and miscarriages; and clinicians who cannot intervene when pregnant patients are carrying fetuses with serious or life-limiting anomalies or when a patient’s life is threatened.
Marshall sees a broader role for ethicists in terms of the institutional response. Some ethicists may help develop policies on conscientious refusal by clinicians, either those who refuse to provide information about abortion services, or those who refuse to participate in coercive interventions against pregnant women or actions that violate their privacy.
“Ethicists should keep data on the race and socioeconomic status of pregnant patients who are denied abortion services, or who experience coercive interventions or privacy violations,” Marshall adds.
In addition to an array of other ethical concerns, vagueness in state laws limiting access to abortion or banning it altogether is causing additional confusion and moral distress for providers. “What I’m hoping ethics will do is to jump in and help us all petition for more clarity in these laws,” says Louise P. King, MD, JD, director of reproductive ethics at the Center for Bioethics at Harvard.
King believes these laws to be profoundly unethical on a fundamental level. “But in the context of having to address these laws, there is a lot that ethicists can do in the short term. Longer term, ethics can continue to help us,” says King, co-director of ethics for Essentials of the Profession at Harvard Medical School.
Hospital policies and malpractice case law demand clinicians adhere to evidence-based guidelines on how to treat ectopic pregnancies and miscarriage, but some state laws make pre-emptive interventions illegal. The various state laws raise many questions about when providers can intervene and still comply with the law.
For example, some laws state abortion is illegal from conception while indicating providers can use an affirmative defense if a patient’s life is actively threatened. Other laws use the term “medical emergency” but qualify that it has to be actively life-threatening, not prophylactic or anticipatory. “If it’s written that way, that means that by definition, if I’m intervening for an ectopic pregnancy and there is not an active emergency such as severe bleeding or perhaps even organ system failure, what I’m doing is a crime, but that I could then defend myself in court,” King explains.
King argues the wording of the statutes is intentionally vague on these important distinctions. “It should have given deference to the medical expertise of OB/GYNs and to the complicated decisions they make with their patients,” King says.
It is not advisable for physicians to simply disregard the law, thus risking prosecution and putting their livelihoods in jeopardy. King points to the ethical theory of utilitarianism, which says the ethical choice is the one that results in the greatest good for the greatest number. “Physicians have to protect their ability to care for other patients,” King says.
Some physicians might delay an intervention, seeking middle ground between the standard of care and risk of prosecution. However, it is ethically problematic for providers who would normally intervene well ahead of the patient’s life being in danger to delay intervention and put patients at risk. King says it is reasonable for physicians to practice according to the standard of care.
“It is morally injurious to put physicians in that situation where they would have to risk being charged with a felony,” King says.
Some distressed clinicians have gone to hospital risk management departments for clarity as to how they can meet their obligations to patients, but risk managers’ response is to point to the statutes. Ethicists can use their unique skills to give clinicians more nuanced support. “Ethics committees can say, ‘Your ethical duty is to do this, and we will help craft ways in which the hospital can support you in providing appropriate care,’” King offers.
King says ethicists are ideally positioned to pressure state attorneys general to put forth pre-emptive opinions to clarify which situations for which providers will not be prosecuted (e.g., treating ectopic pregnancy). Another example would be heterotopic pregnancies of twins when one is intrauterine and one is ectopic; treating the ectopic pregnancy could result in a miscarriage of the intrauterine pregnancy, for which the provider could be prosecuted. For providers, it would be of some comfort to know that under the law, they can act immediately in those specific cases and not wait for a life-threatening emergency such as sepsis. “Then, people could feel a bit safer,” King says.
REFERENCES
1. The Association of Bioethics Program Directors. Bioethics guidance for the post-Dobbs landscape.
2. American College of Obstetricians and Gynecologists. Abortion is essential healthcare.