Reproductive Politics

By Michele Goodwin

In recent months, women’s reproduction has been in the spotlight.  A few weeks ago, the Republican Party adopted an anti-abortion platform calling for a constitutional amendment outlawing abortion and making no exception for victims in cases of incest, rape, or to save the woman’s life.  Ironically, some of the very same party leaders responsible for drafting the amendment issued demands for the Missouri Congressman, Todd Akin, to resign or step aside in a hotly contested Senate race after he made controversial claims that “legitimate” rapes rarely result in pregnancies.

As the gender war plays out in high profile ways, we should be aware that abortion politics is not the only area in which women’s reproductive rights are closely scrutinized and under threat of political attack.  Relatively little attention has focused on the pernicious on-the-ground forms of criminal policing targeted at pregnant women across America.

Since the late 1980s, state legislatures have enacted criminal feticide laws that now ensnare women for a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. For example, in 2010 Utah Governor Gary Herbert signed into law the “Criminal Homicide and Abortion Revisions Act,” which specifically applies to miscarriages and other fetal harms that result from “knowing acts” committed by women.  A prior version of the bill drafted by state legislator Carl Wimmer authorized life imprisonment for pregnant women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth.  Arkansas, Florida, Minnesota, and some other states define child abuse as intentional or neglectful harm to the fetus.

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Mitt Romney’s Son’s Abortion Contract

Over at Concurring Opinions, Dave Hoffman (via TMZ), writes:

Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies: We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011.  Paragraph 13 of the agreement reads as follows: “If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”

It is a common error to think that contract terms are specifically enforceable as written.  I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause.  In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts.  Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed.  Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.” That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay.  Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.

Abortion clauses are not that uncommon in surrogacy agreements. I have actually address the constitutional and normative issues briefly in two 2008 papers. Here are my thoughts on the matter:

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More on Conscience and Civil Disobedience

Over at The Hastings Center’s Bioethics Forum blog, there’s an interesting post from Rosana Triviño addressing the difference between conscientious refusal and civil disobedience, in relation to Spain’s new law limiting care for undocumented immigrants.  This links nicely to some conversation we’ve been having here at Bill of Health as to whether conscientious refusals and actions ought to be thought of similarly and granted similar protections.

One thing I’m puzzling over is the relevance (or not) of institutional support for the conscientious behavior in question.  So in Spain, several medical organizations have encouraged physicians to avoid withdrawing care from undocumented immigrants, and of course in the US and elsewhere, there are many groups that encourage physicians not to perform abortions and other controversial services.  Does institutional involvement make something look more like civil disobedience?  I think the answer is “kind of.”

Ultimately, something is clearly civil disobedience when refusers or actors – 1 or 100 or 1000 – violate the law on the books for conscientious reasons.  But where numbers or institutions can matter is when refusers refuse on grounds of conscience to do something that is legal but not required.  Their refusals are not violating the law, individually or collectively, and there is no technical disobedience.  But when there are enough refusals to do what the law allows, the law may as well say something different.  And particularly when those refusals are coordinated in some way to prevent access to what the law allows, things start to look a lot more like civil disobedience.  So conscientious violation of law seems to be sufficient but not necessary for civil disobedience, which on a broad view could also include efforts to sabotage or impede a law through collective inaction.

What do you think?

Conscientious Actions and Refusals

Great new Perspectives piece by Lisa Harris out in NEJM on the need to recognize that conscience can compel action, not only refusals to provide certain types of care (including abortion).  Elizabeth Sepper makes a similar argument in her forthcoming article in the Virginia Law Review.

First,  let me just say that I couldn’t agree more – it is essential to recognize both sides of the coin.  As I’ve argued elsewhere, both ought to be respected and protected, to a point, but the issues raised by conscientious refusal versus conscientious action are distinct in some important ways.  The primary problem with refusals is that they can burden patients by creating barriers to care, if not managed appropriately.  On the other hand, conscientious action would make care available to patients – and what could be wrong with that?

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Art Caplan in The Lancet: Death by Refusal to be Turned

Our blogger Art Caplan has a fascinating new piece in The Lancet today about an elderly patient who refused to be turned in his hospital bed and died from the ensuing bed sores/infection.  Art’s conclusions emphasize both patient autonomy and preserving the ability of health care professionals to provide care in humane and safe conditions.  In the meantime, he asks a number of important questions about this patient’s decision:

Could Harold or any other patient deny care considered basic and standard? If he asked not to be turned could he also demand that the heat be turned off in his room? Could he refuse to let anyone touch him at all? Could a patient demand no elevation of his bed? No taking of vital signs? And without a clear policy about a request not to turn, were the hospital staff exposing themselves to a good deal of bureaucratic and regulatory grief when Harold died?

 and

Harold seems to have been well within his legal rights to refuse turning. But would a hospital or a nursing home be within their rights to refuse him admission if what he wants is well outside the standard of care? Should all health-care institutions have a policy on turning? Although such requests are rare, the turmoil they cause is enormous. Should “not turning” be offered as an option in circumstances akin to those governing the ending of dialysis, ventilator support, resuscitation, and chemotherapy? Should turning be a topic of discussion as part of writing an advanced directive? If so, what support ought to be given to health-care providers involved in a case where a competent patient insists on not being turned?

What do you think?

Pushing the Boundaries: Revisiting Transfusion of Blood Products in the Children of Jehovah’s Witnesses

By Erin Talati

In the intensive care unit, almost every decision can be made into life or death.  For some children whose parents are Jehovah’s Witnesses the need for a blood transfusion becomes quite literally a life or death decision.  As clinicians, we struggle with maintaining a relationship with the family, while advocating for what we believe is in the best interests of a sick child.  Asking a family taxed by the knowledge that their child is critically ill to step back and to choose to sin to save the life of their child or instead to choose death seems impossible; and, usually, we don’t expect families to make this decision.  In many situations where a blood transfusion is required to protect a child from what is thought to be imminent death, a variety of approaches have allowed hospitals and courts to remove decision making power from the family to permit blood transfusion of a child against the family’s religious beliefs.

Decisions over transfusion of Jehovah’s Witness children are not new.  A long line of cases dating to the late 1960s examines the balance between parental domain over decisions for their children and the interest of the state to protect the best interests of children.  Since the 1960s, the debate has taken many forms. In life threatening situations, precedent allows doctors and hospitals to take some form of protective custody over a child in order to do what is thought to be best for the child.  Early iterations of the debate focused on state intervention into the private sphere of the family only when the medical community agreed on the proposed intervention, the intervention would be the right decision for the child, and the child would face imminent death without the intervention. The justification for this approach is that while parents are generally best suited to determine what is in the best interests of their children, when the parents beliefs endanger a child’s future ability to decide for himself, the state can step in to protect the future interests of the child.

The decision to allow transfusion of children of Jehovah’s Witnesses over the wishes of their parents, however, is not universal. Read More

Elderly drivers and fatal accidents: Is the doctor responsible?

[posted on behalf of Art Caplan]

Should a physician be held responsible if an elderly patient causes a car accident while driving?

A Los Angeles jury recently decided that Dr. Arthur Daigneault was not responsible for the wrongful death of 90-year-old William Powers, whose longtime partner, a dementia patient, drove into the path of an oncoming car, according to a report by The Los Angeles Times. The driver Lorraine Sullivan, 85, survived, but Powers died of his injuries weeks after the crash.

The Orange County, Calif. jury cleared Daigneault, but the case raises the question of whether the physician should have reported his patient — who had suffered memory loss since 2007 and was prescribed an Alzheimer’s drug in 2009 — to local health authorities or urged the California Department of Motor Vehicles revoke her license.

Read the rest over at NBC News Vitals.

Discrimination in the Doctor-Patient Relationship

By Holly Fernandez Lynch

Nir Eyal’s post below has teed up the issue of doctors refusing to accept patients for reasons that seem to be pretty questionable.  The latest example has to do with obesity, but there are plenty of others having to do with vaccination status, sexual orientation, and the like.  Sometimes these refusals can be clearly categorized as conscientious objections (religious or otherwise).  And other times they are  a bit fuzzier, such as when the refusals are rooted in attempts to drive changes in behavior  (e.g., “get vaccinated or you can’t be my patient”) or when they stem from having inadequate staffing or equipment.  But for the patient, all of these refusals can feel discriminatory.   And that raises the obvious question: can doctors legally discriminate against patients?  The answer: it depends.  Sometimes yes, and sometimes no.

First, bear with me while I make the obligatory pitch for my book, Conflicts of Conscience in Health Care, which is now a few years old, but the issues are still very much live.  In that book, I delve deeply into the question of how to balance provider conscience and patient access.  In general, I argue that it is important to protect provider conscience, to a point (or points) – and those points have to do with burden on the patient and avoidance of invidious discrimination.   Read More

No Doctor for the Obese?

by Nir Eyal

Yesterday, Boston public radio station WBUR interviewed a Massachusetts primary care physician who refuses to admit new obese patients. She claims that it’s because she lacks proper equipment, but she seems to have mixed motives. Earlier she had admitted that it’s rather because she feels that if they don’t lose the weight, “I’m paying the cost of other people’s choices.” I bet if she lacked the equipment for wheelchair-bound patients, she would go buy it.

In an upcoming post (09/07: update here), Holly Fernandez Lynch, who, along with Glenn Cohen, gets kudus for kicking off this blog, will explain whether it’s legal for doctors to reject obese patients. But before rejecting them becomes the next trend, is it right?

A whopping 35.7% of Americans are obese, and the trend continues upwards. Obesity increases risk for heart disease, stroke, type II diabetes, and various cancers. It costs the system a fortune. We must tackle this problem head on. But conditioning physician access on weight loss is not the way. Read More