Home Medical Malpractice Political Malpractice: Efforts to Mislead Physicians about State Abortion Laws

Political Malpractice: Efforts to Mislead Physicians about State Abortion Laws

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During over forty years of writing and advocating on life issues from a Catholic perspective, I am often struck by an interesting phenomenon: when abortion news breaks, in the span of a few days I would suddenly find many online articles, by different authors and on different sites, making identical false or misleading factual claims against the pro-life position. I came to learn that this was no coincidence. Various pro-abortion organizations would launch an organized messaging campaign. The articles were written by willing allies in these campaigns, or by well-meaning writers who had been convinced by those allies’ claims.

With the recent reversal of Roe v. Wade and Planned Parenthood v. Casey, these campaigns have shifted into overdrive. Every few days there is a new claim: the Dobbs opinion arbitrarily relied on a witch-burning judge of the seventeenth century for its legal history (rebutted on this site); the judges signing that opinion “lied” to the Senate by saying that they would never overturn Roe; the Supreme Court is poised to make contraception illegal; and so on.

One recent claim, and potentially the most harmful one, is that the new laws restricting abortion in various states are so vague and confusingly written that physicians are “paralyzed,” unsure of which procedures could be criminalized. By proposing that such fear and confusion are well grounded, these articles tragically create that fear and confusion in more physicians, endangering women’s health.

Among the medical sources cited in such articles is the American College of Obstetricians and Gynecologists (ACOG), and the Bixby Center for Global Reproductive Health at the University of California–San Francisco. Bixby, with a budget of about $50 million, promotes “routine” abortion training, including second trimester abortion techniques in Ob/Gyn residency programs. ACOG has tried to require these programs to provide such training. ACOG has also attacked conscience rights of its own members who object to abortion. And it recently condemned the Dobbs decision as ushering in “a dark and dangerous time for the women and doctors of America.” These are not organizations disposed to provide an objective or dispassionate analysis of abortion policy.

 

Missouri’s “Trigger Law”

Recent articles have quoted hospital physicians in Missouri saying that under the state’s new “trigger” law, the medical staff is waiting longer than usual to treat risky ectopic (tubal) pregnancies because they are afraid they cannot legally do so until the mother is in imminent danger of death. Allegedly, the hospital’s legal counsel could not help answer this question.

Pro-life medical experts have helpfully responded that policies against abortion have not been seen as preventing treatment of ectopic pregnancies, which are generally incompatible with survival of both child and mother if not addressed.

What is most startling is the reaction (or lack thereof) of hospital attorneys. The Missouri law, which had been primed to go into effect if and when Roe was overturned, was last amended in 2019, so it has been on the books for three years. In the last five years, the Senate has confirmed three new Supreme Court justices—Justices Gorsuch (2017), Kavanaugh (2018), and Barrett (2020)—who were widely seen as potential votes to overturn Roe. Two months ago, the Dobbs draft opinion was publicly released, suggesting that such reversal was imminent. Apparently, during all this time, hospital attorneys in Missouri did not read the state’s abortion law to obtain clarification on how it may (or may not) affect practice in their hospital.

If they did so, they might have seen that the law allows for abortions when there is a “medical emergency,” defined as “a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman” (Missouri Rev. Stat. Secs. 188.017, 188.015 (emphasis added)). A similar “medical emergency” exception, defined “on the basis of the physician’s good faith clinical judgment,” waives the law’s 72-hour waiting period giving the pregnant woman time to consider her abortion decision (Id., Sec. 188.039).

Of course, the reproductive system itself is a major bodily system, and a burst Fallopian tube from an untreated ectopic pregnancy substantially impairs that system; it can also endanger the mother’s life from blood loss. Therefore, treatment for ectopic pregnancies and similarly life-threatening conditions is permitted under Missouri’s law.

Reasonable Medical Judgment

The law defines a “reasonable medical judgment” as “a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved” (Id., 188.015). Physicians are very familiar with this concept, as they invoke it all the time if they are accused of malpractice. The abortion law does not create some new standard designed to trap them, but appeals to the competence of the medical profession itself.

Yet one recent article quotes a physician’s claim that “states are taking away our ability to provide evidence-based care.” The opposite is the case. The Missouri law, for example, declines to define a “medical emergency” more precisely in order to make room for a reasonably prudent physician’s own medical judgment. Unfortunately, articles about this matter often omit the essential phrase “based on reasonable medical judgment” and its definition when they quote the law. This is leading some physicians to imagine that the law’s application will be defined by “an overzealous prosecutor” rather than by accepted medical standards.

 

In addition, the Missouri law defines an abortion in terms of an “intent to destroy the life of an embryo or fetus in his or her mother’s womb” (Id., Sec. 188.015 (1), emphasis added). And it defines a “viable pregnancy” in the first trimester as “an intrauterine pregnancy that can potentially result in a liveborn baby” (Id., Sec. 188.015 (12), emphasis added). This excludes an ectopic pregnancy.

Is this unclear? Or is it possible that hospitals need to educate and reassure their medical staff, and hire better attorneys?

Physicians are even asking whether, if they refer a pregnant woman to another state where abortion is legal, she or the physician may be arrested. Again, the Missouri law’s answer is clear. Abortion facilities in Missouri that help a woman locate an abortion practitioner in another state need only provide her with Missouri’s materials for informed consent (Id., 188.033). Aiding an unemancipated minor from Missouri in obtaining an abortion in another state usually has the additional requirement of parental consent or judicial bypass (Id., 188.028). And women cannot be charged for receiving abortions in Missouri, let alone for traveling elsewhere (Id., 188.056-058).

Texas’s Heartbeat Law

Some articles also criticize the Texas “heartbeat law” enacted last year. One of them quotes a complaint by Dr. Louis Perkins King at Harvard Medical School that the law speaks of an “unborn child” but “that’s a word that means nothing to me as an obstetrician, because I deal in the words of ‘embryo,’ ‘fetus,’ and perhaps ‘neonate.’”

But Texas defines “unborn child” as “an individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development” (Texas Health and Safety Code, Sec. 170A.001 (5)). That seems fairly clear.

Another article claims that Texas has its own medical emergency exception “but does not define the term.” But in fact, the Texas law uses language almost identical to Missouri’s (Id., Sec. 170A.002 (b)(2) and (3)); definition of “reasonable medical judgment” at Sec. 170A.001(4)). By the way, the Texas definition of abortion explicitly excludes treatment of an ectopic pregnancy (Id., Sec. 245.002(1)(C)).

 

Will there be legitimate questions about the new laws, as with any new law regulating the practice of medicine? Of course. But some of these laws have been on the books for years – allowing a great deal of time for questions and clarifications, and for medical input into their drafting. Physicians and attorneys also had reason to examine these laws since the May 4 leak two and a half months ago. But rather than examining these statutes, pro-abortion groups have been revving up a public relations apparatus to spread false and exaggerated claims in order to “paralyze” physicians and discredit the laws. This is a grave disservice to physicians, and most importantly, to women and families in need of optimum health care.

Decades of widespread abortion on demand have distorted the practice of medicine. In this culture, the obstetrician’s age-old understanding that each pregnant woman presents the challenge of caring for two patients may have atrophied in some medical centers. The erosion of this understanding has led to confusion among some physicians about medical, moral, and legal distinctions that were once well known. Those physicians deserve accurate information and reassuring guidance, not additional confusion.





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