Ethical Health Care After Roe

The Supreme Court’s decision to overturn Roe v. Wade sent the issue of abortion policy back to individual states—which has already led to a flurry of laws in red states limiting or banning women from having the procedure. Last week, I spoke to Louise Perkins King, a surgeon and bioethicist at Harvard, and the vice-chair of the ethics committee at the American College of Obstetricians and Gynecologists (ACOG). Her work focusses on the ethical obligations and quandaries faced by medical professionals; the Court’s decision raises significant questions about how doctors who support abortion rights should approach their responsibilities to patients and the law going forward. During our conversation, which has been edited for length and clarity, we discussed how bioethicists think about abortion, how the medical community should approach its own members who are opposed to abortion, and whether it’s ever appropriate for doctors to break the law.

Does the decision to strike down Roe v. Wade change the ethical obligations of doctors in the United States?

It doesn’t change our ethical obligations; it makes them more challenging, because to meet our ethical obligations, to provide abortion—which is health care—in some states physicians will be facing criminal and financial penalties. And, from a utilitarian standpoint, if you meet your ethical obligations and ignore the law and risk those criminal and financial penalties, it may be that you’re then no longer available to treat other patients. Figuring out how to thread that needle is difficult, as is figuring out when you can legally treat women who are pregnant, if they’re facing various emergencies, because it is very difficult to know what you can and cannot do.

Before this decision, the majority of states in the country had some legal restrictions on abortion. How were those existing restrictions—which often limit abortion in the third trimester—balanced with the ethical obligation to provide health care?

My personal opinion is that many of the legislative approaches to abortion that existed were inappropriate. The actual legislation that we have in Massachusetts—the one that I support, and I’m very glad that we have here—is called the ROE Act, and it allows for abortion up to twenty-four weeks. After that time frame, meaning essentially in the third trimester, abortion is still permitted when necessary to save the life of a person who’s pregnant or in the setting of lethal anomalies or anomalies not compatible with life. That allows meaningful access to abortion, the meaningful exercise of people’s rights to bodily autonomy, and a meaningful interaction with teams of doctors, midwives, and other health-care professionals who can help people reach decisions on these matters and who can help determine in that third trimester when abortion is truly necessary—which is exceptionally rare but sometimes important.

One of the criticisms of Roe was that it set standards that were somewhat arbitrary, including the trimester divisions. Ethically, why would the third trimester be different from the first one?

That’s a great question. This concept of viability, which is, from a medical standpoint, an ever-changing and fluid concept—it can’t possibly serve as a line in the sand. The trimester system is just something that is divided into threes, but any particular pregnancy might not correspond to those time frames, might not follow those patterns. There are innumerable complexities that come up in a pregnancy that might lead to different decision-making and different needs at different times.

As an ethicist, I think that there shouldn’t be these lines in the sand. There’s been a dearth of deference to medical expertise, dating back to Gonzales v. Carhart, where they’re simply ignoring what anybody who practices this type of medicine is trying to say. It’s complicated. I can understand the desire for these lines in the sand from both legislators and the public, but that’s not an ethical way to move forward on such a complex issue.

When you sit down with anyone who really wants to create some firm boundaries around abortion because they feel they have to, and then you start explaining to them how complicated things can become, if you’re dealing with severe hydrocephalus, severe cardiomyopathy, hypertension, diabetes, eclampsia, preeclampsia, hemorrhage—and I could go on—all of these nuances of the various complications and difficulties that arise in pregnancy don’t lend themselves to lines in the sand. From an ethics perspective, there really shouldn’t be very many legislative, if any, restrictions on abortion, personally. That’s my view. We should have very clear training for all of our providers and for the public about why that should be the case, whether we can achieve it or not. But a good way to achieve essentially that is what we have in Massachusetts through the ROE Act.

What I’m trying to understand from what you just said is whether the reason a legislative approach to this issue is bad is that pregnancy is really complicated, and you can’t just have a blunt instrument addressing it—or, instead, that a woman should be able to do what she wants with her body. Whatever medical issues she may be having, or whatever complications there are medically, those are not that important to you as an ethicist, because it’s her body and she can do what she wants.

I’ll preface again and say these are my personal views. In terms of a pregnant person’s right to bodily autonomy—in my personal opinion, that is absolute. And so I don’t ask reasons if somebody, for example, is asking for an abortion earlier on in pregnancy. As you get further along in pregnancy, things become more complicated. I don’t know if I would feel comfortable performing a third-trimester abortion for a patient where, if that infant was born, it would probably survive, and the person in front of me is saying, “I just don’t want to be pregnant now.” That would be a little bit difficult.

There are gradations, and there are points at which a pregnant person’s right to bodily autonomy can be called into question. The difficulty that arises for me personally is that if I say no to any abortion, I’m saying to someone, “I think that your right to make a decision about the risk that you wish to take, about the risk of death that you wish to face, is no longer your right.” That’s a statement I don’t think I could make, either. If someone came to me and said, “You are the only match for a kidney, or for bone marrow, or name your body part, for my daughter,” I would have an absolute choice of whether or not I wished to donate that fundamental tissue to her.

In those instances, the risks that I would incur, even if I were having a kidney removed or a portion of my lung or liver removed, are less than when I carried my daughter to term and delivered her. Even after my death, I can refuse to let you use any of those organs to help a family member or anybody else. And yet, if I’m pregnant, at a certain point in time, depending on which legislation you’re looking at, you will be able to say to me, “You no longer have the right to manage the risks for your body, to manage the risks of passing a grown infant through the vaginal canal, the risks of tearing, prolapse, sexual dysfunction, hemorrhage, and death. You no longer get to control whether you’re going to take those risks or not.”

Obviously, if I’m sitting in front of somebody who is in the very early stages of pregnancy, this question is very simple for me. In the early stages of a pregnancy, if they don’t wish to take on those risks, a hundred per cent, they have an absolute right to bodily autonomy in those decisions. If we’re getting into later stages of pregnancy, it becomes quite complex, but really that’s almost a red herring, because it just doesn’t happen. Even with the incredible lack of access that we have in this country to sexual education and contraception, women are not presenting for elective termination in their third trimester. So that question doesn’t happen, and, because it doesn’t, as an ethicist, even though I find a lot of difficulty in that space, in my analysis, I don’t actually have to answer that question. It becomes a red herring, because it constantly does get brought up, even though it’s not really the true issue. It’s an interesting, difficult question to grapple with, but it just doesn’t happen.

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