Abortion-Specific State ‘Conscience Laws’ Reflect Need to Balance M.D., Patient Rights

Abstract

Back to table of contents Previous article Next article ProfessionalFull AccessAbortion-Specific State ‘Conscience Laws’ Reflect Need to Balance M.D., Patient RightsMark MoranMark MoranSearch for more papers by this authorPublished Online:1 Jan 2020https://doi.org/10.1176/appi.pn.2020.1a10AbstractMore than half of state abortion-specific conscience laws offer no restriction or limitations on a physician’s right to refuse to provide an abortion.Every state in the nation has “conscience” laws allowing physicians to opt out of providing services they deem to be antithetical to their conscience, and 46 states have such laws specifically related to abortion services, according to a survey of state conscience laws by Nadia Sawicki, J.D., of Loyola University. The findings were published as a research letter on November 19, 2019, in JAMA.iStock/ChristianChanMany of the abortion-specific conscience laws include a variety of exceptions to the right to opt out of providing abortion services (such as emergencies or ectopic pregnancies), and some laws also include various requirements, such as the duty to provide a referral to another health care professional. But more than half of the states with abortion-specific conscience laws have no limitations whatsoever, according to Sawicki.Citing previous reports from the American Civil Liberties Union (ACLU), Sawicki stated in JAMA that “there is evidence that some patients have been injured because they were denied abortions, arguably in violation of the standard of care.” She added that in many states, such patients have no legal recourse.In 2015, the ACLU filed suit against Trinity Health Corporation and Trinity Health Michigan. The suit alleged that hospitals within the Trinity Health system, which adhere to the Ethical and Religious Directives for Catholic Health by the United States Conference of Catholic Bishops, systematically failed to provide emergency care to women with pregnancy complications as required by the Emergency Medical Treatment and Labor Act.“In fact, in the span of one year, a public health educator found that at just one of Defendants’ hospitals alone, several women suffering pregnancy complications were denied the care they needed and to which they were entitled under federal law,” the suit stated. “As a result, pregnant women seeking emergency care at Defendants’ hospitals—including at least one of Plaintiffs’ members—have become septic, experienced hemorrhaging, contracted life-threatening infections, and/or unnecessarily suffered severe pain for several days at a time.” (The case was dismissed in 2016.)A May 2016 ACLU report entitled, “Health Care Denied: Patients and Physicians Speak Out About Catholic Hospitals and the Threat to Women’s Health and Lives,” detailed stories of women denied abortion services. “Today, one in six hospital beds in the United States is in a Catholic hospital,” the report stated. “In some places, such as Washington State, more than 40% of all hospital beds are in a Catholic hospital, and entire regions have no other option for hospital care. … These hospitals should not be permitted to turn away patients seeking emergency medical care, to discriminate against women by refusing to provide critical reproductive health services, or to force their values on patients who may not share them.”In the JAMA Research Letter, Sawicki wrote, “State legislators seeking to strike a balance between conscience rights and patient safety have achieved this goal in a variety of ways. Some states, for example, limit rights to refuse abortion in cases of emergency, miscarriage, or ectopic pregnancy. Others do not limit refusal rights but provide some safeguards for patients by preserving their right to seek compensation for injuries in such cases.”Sawicki and her team used Westlaw, a databank of state laws, and state legislative webpages to identify conscience laws in the 50 states and District of Columbia (see chart). “As of December 2018, 46 states had one or more laws that protect clinicians and institutions, as well as other individuals and entities, from adverse consequences that may arise as a result of their conscientious refusal to participate in abortion. While the scope of protections varied by state, these laws frequently established immunity from adverse actions by employers, government entities or officials, and educational institutions.”“Laws impacting physician speech and behavior can raise a number of issues, and it is important for us to be aware of evolving dialogue in the areas they address,” says Debra A. Pinals, M.D.David Hathcox(In addition to the District of Columbia, the four states that do not have abortion-specific conscience laws are Colorado, Mississippi, New Hampshire, and Vermont.)Sawicki found that the most common protection was a prohibition on civil lawsuits against conscientious refusers. Of the 37 states that provide immunity from civil liability, 34 states protect broad categories of individuals from liability: their statutory text protects all “persons,” all “health care providers,” or all health care facility “staff” or “employees.”Thirty-two states provide civil immunity to some select health care facilities. Rights of refusal and/or civil immunity are limited in cases of emergency (13 states), miscarriage (four states), and ectopic pregnancy (three states).Some states explicitly require that the objecting individual or institution notify the patient of the refusal (eight states), provide a referral (two states), provide information regarding access to services (two states), return a prescription (two states), or make informed consent disclosures (one state).“Return a prescription” refers to pharmacies, hospitals, or health professionals that refuse to fulfill an abortion-related prescription and a requirement to return the prescription so the patient may take it elsewhere.Illinois is the one state that includes a requirement to “make informed consent disclosures.” The state’s Health Care Right of Conscience Act protects conscience rights relating to any form of health care, but specifically enumerates abortion, contraception, and sterilization as among the protected procedures. The law states, “Nothing in this Act shall relieve a physician from any duty, which may exist under any laws concerning current standards of medical practice or care, to inform his or her patient of the patient’s condition, prognosis, legal treatment options, and risks and benefits of treatment options, provided, however, that such physician shall be under no duty to perform, assist, counsel, suggest, recommend, refer, or participate in any way in any form of medical practice or health care service that is contrary to his or her conscience.” Twenty-six states imposed no conditions on rights of refusal.APA Opposes State Laws Requiring ‘Scripts’ When Counseling Patients About AbortionA position statement approved by the APA Board of Trustees in 2013 titled “Legislative Intrusion and Reproductive Choice” states that “a growing number of state legislatures have enacted or are considering legislation requiring physicians who are counseling and treating pregnant women to follow specific scripts and protocols in communicating with their patients and providing medical care to them.”The position statement continues, “These required scripts include inaccurate statements about the effects of abortion on the woman’s health and well-being. Prescribed examination protocols typically include mandated ultrasound procedures that women are encouraged or required to view. Although it is appropriate for states to require disclosure of material information regarding the risks of any recommended treatment and to obtain informed consent, these statutes are not designed to assure informed decision making; instead they represent an unprecedented effort by the government to use physician communications as an instrument for discouraging pregnant women from exercising their constitutional right to make their own reproductive choices. These laws intrude into the privacy of physician-patient communications and, in so doing, compromise the rights of both patients and physicians. They are strongly opposed by the American Psychiatric Association.”Last May, the Department of Health and Human Services issued a rule that would have expanded the right of health care professionals who receive federal funding to refuse to participate in abortion, transgender health care, or any other service to which they object for religious or moral reasons. In November, the rule was struck down by two federal courts (Psychiatric News).The state laws referenced in JAMA would not, in any case, have been affected by the proposed federal rule; however, the proposed rule speaks to the Trump administration’s intention to preserve and expand conscience laws allowing physicians to opt out of providing some services. More than a dozen federal statutes, more limited in scope than the rule proposed last May, already aim to accommodate religious and moral objections to providing certain health care services by those receiving federal fundingA position statement titled “Legislative Intrusion and Reproductive Choice,” approved by the APA Board of Trustees in 2013 and retained in 2018, opposes state laws that would require physicians to follow a “script”—including questionable or inaccurate information about effects of abortion on a woman’s health—when speaking to patients about abortion (see box above).Debra A. Pinals, M.D., chair of the APA Council on Psychiatry and the Law, said the issue of physician conscience requires balancing physician and patient rights. “Physicians have historically had some protections related to conscience objections to provision of services on religious or moral grounds,” she told Psychiatric News. “These come up most often with abortion, sterilization, and end-of-life type issues. The balancing test in these scenarios requires physicians who would object to also let patients know what their treatment options are and to refer to a health care professional able to provide the full medical care to the patient.“The balance between protecting physicians who have conscience-based objections and protecting patients is part of the current debate that will be important to track as it unfolds,” Pinals said. ■ “Protections From Civil Liability in State Abortion Conscience Laws” is posted here. The ACLU Report, “Health Care Denied” is posted here. A description of the ACLU lawsuit against Trinity Health is posted here. ISSUES NewArchived