Civil disobedience

Physicians occupy an unusual position in society.  We are subject to the law, but also to a code of ethics that in some cases conflicts with the law.  This code focuses on the unique relationship between physician and patient, on the responsibility of the physician to serve the patient in a way informed by the best medical knowledge.  It’s not so hard to imagine situations where ethics and law might conflict: military interrogations, state executions.  Most of these examples feature doctors choosing to violate basic ethical precepts.

There are also situations where doctors fail to provide reasonable care. No doctor can be required to provide a particular service to a particular person; that would be a violation of the freedoms of the doctor.  But a doctor who cannot provide basic standard-of-care medicine cannot be a doctor.  Analogous to pharmacists who refuse to fill prescriptions for birth control, doctors who cannot fulfill their basic duties should seek a new career.

Currently, however, we are being confronted by a new attack on the autonomy of physicians and patients.  The spread of new abortion laws across the country has put doctors in the position of violating their ethics or giving up practice.  Doctors who are brave enough to provide abortions are already at risk, already face barriers including mortal danger.  Most deliver these services despite the danger because they know it’s needed, and that if they won’t do it, no professional will step up.  I can only imagine the pain a doctor feels when she is asked to injure her patient by being forced to lie about abortion, by being forced to perform unnecessary procedures such as ultrasounds, or to risk being shut down, forcing abortion underground.  What’s best for their patients, delivering flawed care or no care?

Let’s clarify a few issues here.  While unnecessary transvaginal ultrasounds are essentially rape, other unnecessary ultrasounds are little better.  No patient should be forced to undergo any procedure they do not wish to.  When I care for a Jehovah’s Witness, I have an understanding with them: they know I fear for their health if they should need a transfusion, but they know I won’t force them.  I also will not deny them other care, such as a referral for a potentially bloody surgery, simply because they refuse transfusion.  The patient’s autonomy must be respected as far as possible (and there are limits; I won’t, for example, provide an overdose for a patient).

In the case of abortions, where time is essential and providers may not be easy to find, delays in care are unconscionable.  To enforce a waiting period violates the doctor’s ethical duty to provide appropriate, timely care and to avoid causing the patient unnecessary grief.  The law forces us to violate our ethics.  To force us to perform ultrasounds, transvaginal or otherwise, is battery.  No procedure can be performed on a patient without their informed consent.  To make another important procedure contingent on an unnecessary one is a clear violation of medical ethics. Abortions can be safely performed without sonography, and should be unless their is compelling medical reason to perform one—with the patient’s consent.  To say that a woman can always refuse the ultrasound as long as they refuse the abortion is an immoral argument, one which removes all autonomy from the patient, and forces a doctor to make unreasonable choices.

Doctors are notoriously poor organizers.  We generally operate independently.  The AMA represents less than thirty percent of American doctors.  When it comes to protecting ourselves and our patients, we are often on our own.  When it comes to the latest abortion bills we cannot afford to remain apart.  We must all speak out against this violation of our ethics and our patients’ rights.  How this might work isn’t clear, but perhaps we need target certain states, one at a time.  When one provider is shut down for honoring their patients’ rights, another must be willing to step up, and another.  There is a nationwide shortage of abortion providers so this probably isn’t realistic, but even so, we must try, we must advocate for our patients, we must defend them from the depravities of those who would violate their basic right to ethical, respectful care.

32 Comments

  1. Lynda M O

     /  March 18, 2012

    Politicians, Stay out of the Doctor-Patient relationship; you are Neither in this case.

  2. D. C. Sessions

     /  March 18, 2012

    At the bare minimum, if the State requires the provider to recite some bullshit the provider should tell the patient that it is bullshit and inform her of the facts.

    Yes, that’s going to be professionally risky — but not very risky. Prior restraint of truthful speech in a privileged relationship? Even the current Supreme Court would vote at least 7-2 against letting the State get away with that.

  3. MarkH

     /  March 18, 2012

    I agree PAL, the major problem we are facing though is we haven’t had an adequate stand off with government over their ability to directly legislate medical practice. This might have to be a test case.

    I think there may not even be an existing constitutional framework to protect our ethics, and we might be screwed. However, it is clearly wrong for government to legislate laws that force us into clear violations of medical ethics. Sadly the only relevant case I can think of is buck v bell, and in that case the courts actually upheld government forced sterilization procedures.

    We’re in a pinch. Doctors can’t unionize, can’t strike. We can only weakly lobby through the AMA. But every doctor I know finds government mandated malpractice deeply offensive morally and professionally. What can we do? Where can I send a check to get someone to stick up for us and our patients’ right to ethical care?

  4. Old Geezer

     /  March 18, 2012

    Perhaps it might start by everyone refusing to treat any legislator who voted for this type of law and/or supported it until he or she underwent a sonogram and counseling. You have some chest pain there? Better get that sonogram and get you to the stop-smoking counselor so we can treat you. That smoking-related heart disease is an immoral, self-caused threat upon a human life.

  5. Ria

     /  March 19, 2012

    I find it amusing that you think it’s appropriate to discuss ethics in this context by discussing them solely from the perspective of the effect upon the woman and ignoring the impact upon the other human being in the picture. Legitimate ethical evaluation would demand that you assess (a) whether or not you will consider the personhood of the other human being in the healthcare situation, and (b) the effect of the treatment upon the other human being in the healthcare situation. Obviously, the woman is the patient, and is paying you. That’s a legal issue, however, not an ethical distinction. Now, your bias is obviously very clear as to what your answers would be for both (a) and (b) from what you have written, but if you’re going to write about ethics, at least be thorough. I do not understand how, as a physician, you can so easily dismiss the enormity of the decision that the woman is making and the significance of the life that is being snuffed out.

    • Alys

       /  March 21, 2012

      “I find it amusing that you think it’s appropriate to discuss ethics in this context by discussing them solely from the perspective of the effect upon the woman and ignoring the impact upon the other human being in the picture. [...] I do not understand how, as a physician, you can so easily dismiss the enormity of the decision that the woman is making and the significance of the life that is being snuffed out.”

      I understand your point, and I think in a discussion about the ethics of abortion you would be 100% right that this is a necessary consideration. However, the issue at hand here isn’t actually abortion: it’s medically unnecessary ultrasounds. So while the woman may be making an enormous decision, her enormous decision is the abortion itself, and the ultrasound is completely irrelevant to the abortion, meaning that to mandate it is to mandate an unnecessary procedure. We may be having this whole conversation because the measure is specifically designed to be an anti-abortion measure, but the abortion itself is not what the conversation is about. The conversation is about whether it’s acceptable for a governmental body to mandate that physicians violate our physical bodies.

  6. I must admit I’m not sure what you’re saying. If your general point is that a fetus is equally “human” as the mom, I’ve gotta disagree with you on that one. My responsibility is to the patient primarily. If she wants to take a pregnancy to term, then I must also counsel her on healthy pregnancy behaviors to help insure a healthy baby. But I will never counsel a patient that she must be an incubator for the sake of a small ball of cells.

  7. Daniel J. Andrews

     /  March 20, 2012

    (and there are limits; I won’t, for example, provide an overdose for a patient).

    Why not? Because it is against the law? Should I face a choice between ending my own life or suffering a very prolonged painful and emotionally debilitating death I would hope my doctor, who has known me for 30 years, would help me with ending my own life.

    I also find the desire to not help a patient die hypocritical because apparently it is okay to let them die passively by not feeding them or giving them water–yeah, much more humane to let them die of thirst. Oh wait, they give drugs so they don’t feel it. So much better.

    Which seems the better choice. Don’t give the patient any say in the matter, force them to endure pain and humiliation, and when they’re too far gone let them die over the course of a few days by depriving them of water and food, or give the patient the drugs he needs to end his/her own life on his/her own terms? For goodness sakes, even if the patient is too far gone why on earth wouldn’t a doctor prescribe a lethal injection instead of letting them die from lack of water or food over a few days?

    Any doctor who is willing to kill a patient through deliberate neglect but won’t offer an overdose to the patient isn’t just being hypocritical…they’re exhibiting a form of moral cowardice by refusing to make a tough decision.

    Granted the law ties doctors’ hands so they may not be willing to risk their career and freedom. Understandable. Sometimes the law is an a**. It is a law that needs to be changed.

  8. Bob

     /  March 20, 2012

    Your whole discussion is CRAP. You are suppose help people to better health. A child is a child not a blob of cells any more than you are a blob of cell. You are not suppose to kill someone like Dan Andrews or the innicent child. Go to the EHD.com website and investigate human development and join in the science that is amazing.

    • It always amazes me how full of love anti-abortion activists can be.
      /snark

      • saffronrose

         /  March 21, 2012

        It always amazes me, too–along with the needs of the child (the mother is just a (your favorite negative term here)) after birth, which go unfilled by the ranters.
        It also amuses me that those who seem to froth at the mouth, as Bob above, cannot do so with proper spelling, grammar, or punctuation, much less rational thinking.

    • Emiline

       /  March 20, 2012

      I am an OB nurse, so I would like to think I have a very good understanding of the process of human development. You are absolutely right with your assertion that doctors are supposed to help people have better health, and often times that is what they are doing when giving their patients information to terminate a pregnancy. Between maternal and fetal complications during pregnancy, and complications during childbirth, the risk of fetal and maternal demise is extremely high, higher than all first world countries.

      Making stupid obstacles to make it harder to get abortions isn’t going to stop them from happening. Banning abortion isn’t going to stop it from happening either. Neither will criminalizing it. It will only result in more dumpster babies, overflowing the foster care system even more than it is already, and more women dying out of desperation to end a pregnancy that they aren’t psychologically/emotionally/financially/physically ready to have.

      If we don’t think these women seeking abortions are intelligent or responsible enough to understand the concept of reproduction and fetal development, why on EARTH would you think they would be intelligent or responsible enough to give birth to and raise a child?

  9. Mary Beth

     /  March 20, 2012

    THANK YOU for speaking out against state-mandated rape. Women everywhere appreciate your support.

  10. gingerest

     /  March 20, 2012

    Pal, did you see this? (I posted yours to his comment thread, too.) (Have I told you how awesome you are?)
    http://whatever.scalzi.com/2012/03/20/guest-post-a-doctor-on-transvaginal-ultrasounds/

  11. “I will never counsel a patient that she must be an incubator for the sake of a small ball of cells.” Thank you. Thank you thank you thank you.

    • saffronrose

       /  March 21, 2012

      I’m joining the chorus on this one.
      Is the unfertilized egg not “life”? Is the legion of sperm not a collection of “lives”? (cue Monty Python here)

      It’s life, Jim, but not as we know it. That small ball of cells has the *potential* to become human, but at the moment of fertilization, or implantation, it’s not human *yet*. I’m not sure I’d call an acephalic fetus “human”. Life, yes, human, not quite.

      Are women who cannot carry to term due to some incompatibility, weakness, or disorder going to be seen as murderers, for something over which they have no control? It seems that some states are going in that direction.

  12. ted

     /  March 21, 2012

    This has been missing from this debate for far too long. as to the “Doctor” who posted that he cannot resist this state pressure and wants someone else to stand up to the legislature? Grow a pair! Call your state senator and tell them to but the hell out. Do it on the capitol steps with a hundred of your friends.

  13. saffronrose

     /  March 21, 2012

    Without making ad hominem remarks, I will agree that one’s State Senators, Assemblypersons, Governors, Medical Boards, and so forth, must be written, called, petitioned, harangued, etc. that what they are doing is wrong on many counts, not the least of which is practicing medicine without a license, and interfering with the protected relationship between a physician and a patient.

    How about the idea of letting religious views, which they all are, unduly influence the workings of the State?

  14. saffronrose

     /  March 21, 2012

    In KevinMD’s blog, a Dr. Wu said:
    “violent protesters, graphic descriptions, or philosophical discussions about when a fetus becomes a person don’t sway their decisions.”
    and later mentioned “looking in the mirror” to see what [what a woman facing ending a pregnancy] could live with. I was there twice: I was just barely making ends meet on my salary. As a single mother, I would have failed both of us. It is one thing to fall into single motherhood, and quite another to face that future from the start (unless you have a large staff and income, which most don’t).

    How many women, who having access to neither birth control nor to abortion, should the need arise, will be “a burden on the taxpayers” because of those situations? I gather some feel they can have it both ways: no means to prevent unwanted pregnancy AND no “burden on the taxpayers”. Sorry, not reality–but that doesn’t seem to enter into the equation, in this debate.

  15. gene france

     /  March 21, 2012

    My step daughter had a baby die inside of her and they would not do an abortion. She was so upset that she had to walk around for a week with a dead baby inside of her she nearly took her own life. There has to be some sane thinking on this matter. I hope no one else has to see their daughter in such pain.

  16. Tolly

     /  March 22, 2012

    I don’t even live in America (extremely thankful Aussie gal here) and I find myself compelled to speak out regardless.

    I had to have the procedure in question performed on me last year, due to health issues that were making me extremely sick. I am not sexually active, nor have I ever been. I was not told the full implications of the procedure beforehand, not by my doctor or any of the nurses I dealt with. I was just told that I needed an ultrasound and to report to my local hospital on a certain day. It wasn’t until I was in the room with the (thankfully female) doctor before anyone bothered to explain to me exactly what I’d be going through.

    If I hadn’t needed the procedure to get the help I desperately needed, I would have been out of that room like a shot. I went through with it extremely reluctantly. It was horrible. It’s quite literally the most invasive thing I have felt in my entire life. And frankly, it hurt.

    I needed it to help me live, and I still had the option to back out regardless. The thought that women anywhere are going to have it forced upon them is horrific. Isn’t needing to go through an abortion for any reason bad enough?

  17. StarStuff

     /  March 22, 2012

    I once worked with a medical assistant who declared she was going to medical school. The proudly announced that she would refuse to perform or even learn about abortion. Several of us (doctors even) told her that if she’s going to deny her patients care that she should probably should choose another profession. Maybe her attitude contributes to the fact that ALL of the medical schools she applied to denied her…2 years in a row.

    My hypothetical: I’m sick and you won’t care for me because you don’t like the treatment? You’re fired, I won’t be paying for this appointment and I’m going to find someone who knows what they’re doing. Not mention informing the state’s board of medicine, the insurance company, the clinic/hospital HR, AMA & BBB.

  18. StarStuff

     /  March 22, 2012

    Actually I had this happen when I took my daughter’s throat was so swollen, she couldn’t swallow. I took her to a pediatrician where I asked for something for her pain and she told me she didn’t give narcotics for “a sore throat”. I stood up & told her I was going to call Dr. X. and get someone who will care for her. Funny thing is that I MEANT Dr. X’s husband, the ENT specialist. Dr. X is HER boss. Guess who got liquid vicoden in order for her to deal with a strep test. We ended up in the ER before the end of the nigh though. Had to wait 3+ hours on the waiting room floor because they had a lot of traumas that night. Turns out she had beta hemolytic strep and needed immediate antibiotic care.

  19. LadyDay

     /  March 23, 2012

    Definitely agree with you, PalMD.

    Any thoughts on this issue, PalMD? https://www.aclu.org/blog/reproductive-freedom/kansas-pregnant-women-little-lie-your-doctor-wont-hurt-you

    It sounds like the legislation would allow physicians with religious convictions/political beliefs to deny patients information derived from specific medical tests, although I don’t know much about it. So: sample is taken, test is conducted and paid for, and physician can decide *not* to tell patient outcome of test? Why agree to perform the test, then? Why wouldn’t the physician just tell the patient to have the test done elsewhere if he/she didn’t want to give an honest report back to a patient?

    • Dianne

       /  March 23, 2012

      One thing this law, if it passes, will mean to me is that I won’t be recommending the hire of any candidate trained in Kansas (or Arizona, which has a similar law) at my hospital any time soon. Even for a position that has nothing to do with abortion or even obstetrics. I don’t want to have to try to work with people who have been trained to lie to their patients. They wouldn’t make trustworthy colleagues.

      • LadyDay

         /  March 24, 2012

        Or, instead of that (because there may be some physicians trained in those states who disagree with a law that allows their colleagues’ own religious convictions to intrude into their practice) perhaps there’s a way that you could find out if job candidates agree with that kind of practice or not? What I find particularly disturbing with this legislation (and yes, I already find any legislation that restricts women’s access to birth control/abortion disturbing to begin with) is that a physician could *charge* a patient for a service without disclosing the results to that patient.

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