Ethics of abortion care: Are doctors obligated to break the law to protect patients?

The U.S. Supreme Court’s overturning of Roe vs Wade meant there was no nationwide guarantee to abortion rights. This means women seeking elective abortion care – and the doctors and nurses who perform them – are subject to vastly different laws depending on which state they are in.

There is also a side effect: people who are experiencing medical emergencies related to pregnancy.

Recently,  a Wisconsin woman had to travel to Michigan to get treated for an ectopic pregnancy.

In Texas, an expectant mother had a miscarriage and the hospital sent her home because her infection wasn’t severe enough to warrant treatment.

Kayte Spector-Bagdady is the associate director of the Center for Bioethics and Social Sciences in Medicine at the University of Michigan. She tells WDET’s Russ McNamara that the pressure to do the ethical thing should not be on doctors, but on legislators and judges who are creating and enforcing laws that put women – and their clinicians – at risk.

“So as an attorney and an ethicist, you’ll never hear me argue that there’s an ethical requirement that a doctor should perform an abortion that would violate state law,” Spector-Bagdady says. “Losing their license or going to jail is an immense price to pay and only individual clinicians can weigh that choice for themselves. But in this scenario, I think we’re also putting the moral burden on the wrong person. The people who I believe are behaving unethically here are the judges and the legislators, who are putting clinicians in a position where they have to weigh the life of a pregnant person against their own livelihoods in the first place. I think that is the action that is immoral.”

How do hospitals respond to situations where a doctor says, ‘Hey, I’m going to treat this person regardless?’ Do hospitals have a specific obligation to backup the doctor in that instance? Or do hospitals really have an obligation to protect themselves from criminal and civil liability?

“I would imagine that different hospitals and different states and even different hospitals in the same state are going to make a lot of different kinds of choices here.

One thing to note, though, is that unlike for a medical malpractice, or some kind of civil claim, some of these abortion laws that prohibit abortion are criminal in nature, which means that the clinician can go to jail for performing an abortion. And so when we’re talking about malpractice, liability or civil claims, these are things that a hospital or insurance could theoretically cover for the clinician, but a hospital can’t go to jail on behalf of a clinician. So that makes criminal laws a much different assessment.”

Some of the laws prohibiting or drastically limiting abortion are vaguely written. Is that intentional?

“There are some state laws that prohibit abortion unless to save the life of the mother or the pregnant person. And it then becomes a question what is necessary to save the life of a pregnant patient? And that can be quite complex. There seem to be some obvious answers, like an ectopic pregnancy, which is not viable, it will never result in a live baby and can rupture at any given period and kill the mother. It seems clear that that that performing a termination in the example of an ectopic pregnancy is necessary to save the life of the pregnant patient.

However, there are all different kinds of circumstances which are much less clear. Like for example, what if the pregnant patient has cancer and needs to start radiation treatment and that radiation will kill the fetus or make the pregnancy less viable? Is that cancer treatment necessary to save the life of the mother?”