Guidance at the Crossroads

For 38 years, the Center for Practical Bioethics has raised and responded to ethical issues in health and healthcare.

CONSIDERATIONS

On June 24, 2022, as a result of its Dobbs v Jackson Women’s Health Organization ruling, the Supreme Court of the United States reversed the 1973 Roe v Wade court ruling that protected the right to abortion in the United States. That 1973 ruling, controversial at the time, has remained the law of the land for nearly 50 years, narrowed in scope but upheld again in the 1992 Planned Parenthood v Casey decision. In the 2022 Dobbs ruling, the Supreme Court overruled Roe v Wade on the grounds that the substantive right to abortion was not “deeply rooted in this Nation’s history or tradition.” For the first time in its history, the Supreme Court has reversed a constitutional right determined by its own precedent. As noted by one source, “Never in its history has the Supreme Court ended a basic constitutional protection.[i]”

Considering the unprecedented decision by the court to undo a constitutional protection, the upending has caused widespread uncertainty in the provision of clinical health care services as the “authority to regulate abortion is returned to the people and their elected representatives.[ii]” This shift, while appearing reasonable to some, subjects the authority of governing abortion and related reproductive healthcare services to a political entity governed in some instances by ideology rather than clinical evidence. Some state jurisdictions in the U.S. have proven to be contrary [iii] to widely accepted independent and evidence-based international standards of care established by the World Health Organization.  In its first edition of its guidelines document [iv] published in 2003, WHO stated its purpose was “to strengthen the capacity of health systems” by continuing three decades of “managing complications of unsafe abortion and providing high-quality family planning services.” Since then, the WHO has updated its Abortion Care Guideline [v] document twice (2012 [vi] and 2022 [vii]).

Despite general agreement among medical providers as to the WHO standards of care in reproductive health services, along with other evidence-based reproductive health services guides, including a wide array of fertility and contraceptive treatments (e.g., IVF protocols and Plan B contraceptives), the Dobbs ruling jeopardizes some persons disproportionally because of clinical conditions posing risk to pregnant persons.[viii],[ix] It also interferes with the covenantal relationship between provider and patient that is essential for informed consent, privacy protection,[x] and respect of person. The respect of person principle is grounded in the profoundly personal and intimate decisions that those of any age who can bear children make, along with their partners or parents when dealing with this complex matter. “The autonomous decisions of pregnant patients ought to be respected; patients who are constrained by state jurisdictions to involuntarily remain pregnant should be treated with respect and directed to other jurisdictions for care, including referral to mental health providers when appropriate.”[xi]

Previous research indicates [xii] that persons who seek and are denied access to abortion suffer a variety of negative consequences, including staying in contact with physically abusive partners for extended periods, worsening health in general, and increasing risks of long-term poverty and dependence on public support. These negative consequences affect not only the women involved but their children as well.

PRECEPTS

1. Practitioners have a duty of care for their patients’ welfare protected by physician-patient autonomy and relying on well-earned trusting and covenantal relationships.
   • Civil or criminal legal processes that serve to punish, threaten, or harass prenatal patients or their physicians should be avoided when appropriate medical standards of care are being followed.
   • Professional ethics obligate practitioners to disclose any conflicts of interest or commitment and conscientious objections when treating prenatal patients and to refer accordingly for standard of care they cannot provide.
2. Along with providers, for those capable of bearing children, regardless of how pregnancy occurs and at whatever age, safe and effective treatment must exist, as outlined in the WHO Guideline.
   • When the medical standard of care is not available in a jurisdiction, patients should be counseled about where such care is available, allowing for interstate travel for services without consequences to referring clinicians.
   • The doctrine of informed consent obligates practitioners to counsel their prenatal patients about available options within medical standards of care available in the United States, including all FDA-approved medications.
   • Clinicians should prepare for an increased need to identify and intervene in cases of intimate partner violence, child abuse, and suicidal ideation.
   • Patients grieving miscarriages may face the threat of criminal investigations from police and prosecutors [xiii] and likely worsen in the absence of legal protections.
   • Patients seeking abortions in other jurisdictions will contend with an unclear legal landscape [xiv] . Regulations and laws should not criminalize necessary travel for patients seeking services nor the aid required from others in securing such services. Patient referral for healthcare services must remain legal. To classify such advice as “abetting” a crime would be catastrophic for the patient-caregiver relationship.

RECOMMENDATIONS

Considering the above rationale, the Center for Practical Bioethics makes the following recommendations:

Adherence to and recognition of standards of care established by professional medical associations must be followed and protected for reasonableness and clarity to prevail in all care settings. The immediate impact and far-reaching effects of this ruling, including actions taken to enact restrictive and punitive trigger laws and/or provisions of centuries-old laws, must be corrected by elected representatives to ensure safe practice can be conducted in good faith. Clearly defined medical terms and treatment descriptions included in statutory language must be reviewed by engaging with licensed practitioners prior to enactment to ensure standards of care are upheld and providers are not subject to undue scrutiny. Statutory language should be free of confounding language and misappropriation.[xv] Intrusion from law enforcement in the duty of care of licensed practitioners must occur only after authoritative investigation by licensing boards has been completed and only if findings warrant further action. To achieve goals of equity, justice, and integrity in protecting the dignity of pregnant patients, standardized and established reproductive health services must be available and accessible without threat from unfounded claims, disinformation, ideological and/or unscientific positions. Leaders involved in providing support and care to women and the unborn must commit to upholding existing standards of care set by recognized professional licensing boards.[xvi]

Thoughtful, reasonable, respectful, open, and transparent dialogue must occur among legislators, public health leaders, professional health associations, physicians, practitioners, counselors, and advocates from across the spectrum to resolve these matters. Reasonable people disagree. We are a nation made stronger by diversity and multicultural perspectives. We are a people of differing backgrounds, religious beliefs and customs who deserve respect for those freedoms, recognizing diversity among religious teaching and sincerely held religious beliefs. Acknowledging the diversity in faith traditions, policymakers and providers must agree that no single religious perspective should predominate in a pluralistic society, nor allegiance to a specific definition of “when life begins” become enshrined in law. While promoting dialogue among diverse members of society, public policy must reflect openness to multicultural expressions, avoiding discriminatory action of all types. Changing hearts and minds is work of accompaniment, not entrenchment. Ethical consideration demands respect for diversity to protect the dignity of all and the integrity each of us deserves and owes the other.

We must consider the lives of those who face uncertainty, risk, burden, benefit, and reward. We owe to those who personally bear these decisions for themselves and the beings within them to act in reasonable, constructive, and compassionate ways. This requires us to accompany them, demonstrate our understanding, engender acceptance, and express empathy. This new landscape requires that we remain open to the unprecedented challenges women and families face, and we dedicate ourselves to supporting them by acting with integrity, reserving judgment as to their plight and personal circumstance.

 We commit to and call upon others to join with us to act in good conscience with humility, discernment, disciplined reflection, respectful discourse, and deliberate action. These burgeoning considerations weigh on us as we set course as a society in accompanying those persons most at risk and most vulnerable, inside and outside the womb:

• The right to choose one’s course of care is a profoundly personal and intensely intimate experience. How one assesses her commitment to self and the life of another is informed by conscience and character. The unique considerations impacting one’s decision must be recognized as independent, free of coercion and faithful to self. Beliefs and traditions deserve respect as do decisions about sacred trusts and secular conviction, whether those be based on reason, revelation, religious tradition, or personal discovery. Profound respect is owed to all.
• Established standards of care must be followed and facilitated to ensure that safe and affordable reproductive health services remain accessible to all persons in need without undue burden. Nothing in the court decision preempts or removes those standards and systems of care nor undoes their standing as established by the professional associations responsible for their creation and maintenance. All violations of those standards should be investigated by the governing bodies with sanctions determined and meted out by the boards of healing arts or other authorized entity. Criminal prosecution for following established standards of care cannot be tolerated.

References

[i] The United States Supreme Courts Ends the Constitutional Right to Abortion, the Commonwealth Fund (Embedded link accessed 08.03.2022)

[ii]  Supreme Court of the United States, Dobbs, State Health Officer of the Mississippi department of Health, et.al. v Jackson Women’s Health Organization, et.al., page 1. (Embedded link accessed 08.03.2022)

[iii] 2022 legislation introduced in the MO House related to abortion with penalty provisions, two attempts in the state of Ohio to enact legislation to re-implant ectopic pregnancies (a medically impossible procedure), and multiple attempts in legislatures to define “fertilized eggs” as “unborn children.” Missouri House Bill 2810 (2022 session), The Guardian, and MedPageToday (Embedded links accessed 08.12.2022)

[iv] World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems (2003) (Embedded link accessed 08.03.2022)

[v]  World Health Organization, Abortion care guideline, copyright 2022 (Embedded link accessed 08.12.2022)

[vi] Paul F. A. Van Look, MD, PhD and Jane Cottingham, MSc The World Health Organization’s Safe Abortion Guidance Document.  Am J Public Health. 2013 April; 103(4): 593–596. Published online 2013 April. (Embedded link accessed 08.12.2022)

[vii] See previous citation v. above: World Health Organization, Abortion care guideline, copyright 2022.

[viii] Peterson-KFF Health Tracker System: Pregnancy Related Mortality Pregnant persons in the US die of complications at nearly four times the rate of other wealthy countries; the rate of death from complications among non-Hispanic Black pregnant persons is even higher. Economic equity for the childbearing parent is weakly protected by U.S. policies because paid maternity leave is rare and childcare expectations tend to push postpartum parents out of the workforce. (Embedded link accessed 08.12.2022)

[ix] Kaiser Family Foundation.  What are the Implications of the Overturning of Roe v. Wade for Racial Disparities? Samantha Artiga, Latoya Hill, Usha Ranji, and Ivette Gomez.  Published: Jul 15, 2022 (Embedded link accessed 08.12.2022)

[x] Confidentiality, in accordance with core bioethics principles, rights to privacy, and HIPAA, should be upheld in treating prenatal patients; state-imposed registries that make the names and personal health information of patients and their practitioners public for certain types of reproductive care contradict and violate basic healthcare ethics principles of confidentiality.

[xi] Adapted from the Association of Bioethics Program Directors statement: Bioethics Guidance for the Post-Dobbs Landscape. This and other references in the document have been included herein. Uncertainty for practitioners, health systems and providers that this decision has caused, pose risks and harms to patients and providers.  The consequences of reversing Roe v Wade will continue to cause personal and family disruption, hardship, emotional trauma, health risks, and mental anguish and unnecessary costs. (June 28, 2022) (Embedded link accessed 08.03.2022)

[xii] Turnaway Study: Long-term study shows that restricting abortion harms women. University of California San Francisco, Advancing New Standards In Reproductive Health (ANSIRH), Bixby Center for Global Reproductive Health (Embedded links accessed 08.12.2022)

[xiii]Understanding Pregnancy Loss in the Context of Abortion Restrictions and Fetal Harm Laws

[xiv] “Removing federal abortion-rights protections may spark new legal fights between states” National Public Radio (Published online and Air Date  May 5, 2022) Rachel Treisman, and  “Roe v. Wade live updates: ‘Unenumerated rights,’ the 14th Amendment and how Roe connects to other privacy issues” (Published May 5, 2022)

[xv] Missouri’s Newly-Effective Abortion Law’s Impact on Health Care Providers (Spencer Fane) (Embedded links accessed 08.03.2022)

[xvi] Listing of professional associations and standard-setting organizations:

American Association of Medical Colleges

American College of Medical Genetics and Genomics

American College of Nurse-Midwives

American College of Osteopathic Obstetricians and Gynecologists

American College of Physicians

American Gynecological and Obstetrical Society

American Medical Women’s Association

American Psychiatric Association

American Society for Reproductive Medicine

Association of Bioethics Program Directors

Association of Women’s Health

Obstetric and Neonatal Nurses

Council of University Chairs of Obstetrics and Gynecology

GLMA: Health Professionals Advancing LGBTQ Equality

North American Society for Pediatric and Adolescent Gynecology

National Medical Association

National Association of Nurse Practitioners in Women’s Health

Society for Academic Specialists in General Obstetrics and Gynecology

Society of Family Planning

Society of General Internal Medicine

Society of Gynecologic Oncology

Society of Ob/Gyn Hospitalists

World Health Organization