Summary: Disobedience, Medicine, and the Rule of Law
In a Harvard Law Review journal article, Mary Ziegler raises important questions about the status of pro-choice and pro-life conscientious objectors operating in the field of medicine.
For example, in a post-Roe context, pro-choice medical providers face conflicting pressures from licensing boards and legal codes. Pro-life medical providers face unfriendly regulators who view abortion as healthcare and regulate accordingly.
Ziegler analyzes the issues facing conscientious objectors and suggests there should be legal carveouts for providers who abide by professional standards of leading medical authorities, even in circumstances where following these recommendations runs afoul of the law.
Conflict Between Licensing & State Laws
Pro-choice Conflicts
Pro-choice providers who live in states where abortion is criminalized face conflicting demands. In the wake of the Dobbs decision, the Centers for Medicare and Medicaid Services (CMS) issued guidance suggesting federal statutes preempt state abortion laws. (pg. 1) In a post Roe world, this places regulations in direct conflict with eighteen state laws. (pg. 8)
Under applicable federal code, providers are required to offer treatment that could include abortion. Failure to comply results in draconian consequences. Providers may be slapped with fines of over $119,000 per violation and risk the termination of a hospital’s Medicare provider agreement. (pg. 2) Pro-choice providers are forced to weigh these risks against the risk of the consequences that could result from failure to comply with state abortion laws. This could result in the loss of a medical license.
Pro-life Conflicts
Although pro-life physicians in pro-life states need not worry about running afoul of the law, those who operate in abortion-friendly jurisdictions face a medical establishment operating on the implicit assumption that medical providers who refuse to aid and abet abortion are undermining patient care and deserve professional condemnation. (pg. 2, 6)
Additionally, pro-life physicians have faced these issues over decades, often running counter to a medical establishment that operates off pro-choice assumptions. Refusing to fulfill prescriptions for emergency contraceptives is a notorious example of an action falling under conscientious objection. (pg. 7) Indeed, disputes over whether the federal government could compel companies to cover drugs and devices with “post-fertilization mechanisms of action” led to the Supreme Court’s ruling in the Hobby Lobby decision. (pg. 7-8)
Jurisdictional Confusion
The abortion debate is not immune to the legal problems that plague other fields of law. Given the technologically advanced nature of modern America, jurisdictional boundaries are not clear. This frustrates providers’ risk assessment – particularly on the pro-choice side – because some states are considering legislation that would bar the aiding & abetting of abortion through web services targeted to residents of their states. (pg. 8)
However, although this reality raises risks (particularly to pro-choice practitioners) by creating jurisdictional confusion, it also complicates enforcement which significantly dilutes that risk. The time and resources states would need to devote to enforcement ensures there is virtually no way every illicit provider could be targeted, but it does not eliminate the risks and lowers the likelihood that ideologically moderate doctors would participate in the process.
Is Abortion Healthcare?
At the heart of the conflict between medical professionals who gatekeep licensing and state abortion law is a fundamental schism between the pro-choice and pro-life viewpoints in relation to health care.
According to the pro-choice view, abortion is healthcare. Given the dominance of this view in higher education, it should come as no surprise that leading medical associations promulgate this view and have incorporated it into the licensing and regulatory codes governing medical provider conduct. (see above citation, i.e. pg. 2, 6, and pg. 8[1])
However, the pro-life stance makes a distinction between abortion and healthcare. Because abortion kills a human life, it is not a medical procedure since it fails to provide care. Instead, the pro-life position emphasizes preserving human life by drawing a distinction between the termination of a fetus that poses a risk to the life of the mother, versus the killing of a fetus where the death of the fetus is the only purpose of the procedure. (pg. 8-9)
This is an important distinction given the now routine conflation between miscarriages and abortion. It is also important to note that the distinction, although viewed with skepticism by the author, strikes at the most important element of criminal law: intent. The intent of a procedure where a fetus is terminated because a continuation of the pregnancy would result in the death of the mother is materially different from a procedure where the sole intent driving the procedure is to kill the fetus.
Recognizing this reality is a simple exercise in common sense and sound legal judgment.
Proposed Conscientious Objection Exception for Medical Providers
Ziegler favors a conscientious objection exception for medical providers, but readily admits such a framework would run into political and practical frustrations. Several problems stand out.
First, as mentioned above, states are not in agreement regarding which level of government should regulate medical practice. In some states, statutes determine the reasonableness of medical procedures, while in other regulatory law defines the parameters of acceptable provider behavior. (pg. 9)
Second, Ziegler muddies the waters by seeking to distinguish between medical civil disobedience versus other forms of civil disobedience. She does this by discussing the general judicial “discomfort” with civil disobedience in the abortion context. Most of her analysis focuses on cases involving pro-life activists who were charged with trespassing. (pg. 10-11)
However, this analogy is not comparable to pro-life conscientious objection because trespass is the intentional infringement on another’s property, while most forms of pro-life conscientious objection in the context of medical providers is a failure to act.
Commission and omission are treated quite differently in a context. A failure to act, for instance refusal to fulfill a prescription, does not come with the same disruptive capability as allowing “every person…to act upon his of her personal beliefs…” by violating property laws empowering owners with the right of exclusion. Although the failure to act is technically a form of action, US law has always treated refusal to engage in specific actions has always been treated differently than intentional engagement in specific actions.
Lastly, the conscientious objection framework supported by Ziegler is inherently biased in favor of pro-choice providers. This bias poses two distinct problems: (1) it seeks to utilize the regulatory codes established by the medical establishment as the standard for determining the reasonableness of provider behavior, and (2) across the nation, trust in the medical establishment is plummeting.
First, Ziegler admits the politicization of abortion poses serious problems because there are dissenting views within the medical community regarding what the appropriate standard to which providers should be held. For example, it is unclear whether pro-life providers may rely on research and data disseminated from the Charlotte Lozier Institute or the American Association of Pro-Life Obstetricians and Gynecologists when stating their reasons for conscientious objection. (13)
Second, the medical establishment is not without its fair share of scandals. The Tuskegee Study of Untreated Syphilis ingrained a reasonable fear of medical providers into African American communities who were exploited for medical research. Additionally, public consciousness has been indisputably altered by COVID-19. In 2021, a Harvard poll found a majority of Americans do not trust the National Institutes of Health, or the FDA. (13)
The public’s deep distrust of the medical establishment does not bode well for the implementation of a framework that elevates a medical standard in relation to an issue as contentious and explosive as abortion.
Conclusion
In a post Roe era, pro-choice and pro-life medical providers face a new risk calculation in relations to questions of conscientious objection. State laws now stand in conflict with federal regulations and standards of care advocated by leading medical associations and licensing regulators.
It remains unclear how these issues, which are wrapped up in conflicts of law and jurisdictional disputes, will be resolved.
Lastly, the framework supported by the author, designed to elevate the views of the medical establishment, face legal and practical hurdles due to the pro-choice assumptions on which medical authorities rely and a growing public distrust in the reliability of medical expertise.
[1] Pg. 8 addresses medical authorities siding with a pro-choice interpretation of whether some emergency contraceptives act as abortifacients. An admittedly more obscure area of the abortion debate, but worth noting
