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Why the legal aspects of medical ethics matter
States enact legislation related to abortion
As Medical Ethics Advisor reported in December, one of the sessions held at the annual conference in Washington, DC, of the American Society of Bioethics and Humanities in October was on the top developments in bioethics in 2009.
The organizer of the panel discussion, Thaddeus M. Pope, JD, PhD, of the Widener University School of Law in Wilmington, DE, indicates that it is imperative that clinicians and others involved with such issues as end-of-life decision-making and other types of decisions have familiarity with the legal aspects and parameters within which those decisions can be made.
Noting that most medical ethicists are involved in end-of-life discussions, Pope says, "That's [an area] heavily, heavily regulated by the law — everything about advance directives; who is a surrogate; who is a guardian; what is the scope of the authority of the guardian; what's a DNR order; what is the scope of an advance directive; or what is a POLST form? Not that the law is the sole answer . . . but a lot of the relative questions and the relevant answers to a lot of things that occur in clinical practice at the bedside are governed by the law, whether it's state law or federal law," Pope tells Medical Ethics Advisor. "And there's a pretty big ignorance level out there, meaning that people don't know the law, and they would like to know the law."
That was the one of the primary reasons he proposed the legal panel discussion for conference attendees. That — and the fact, he says, that much of the law is changing, and attendees need to know when there are either current or proposed changes in the law.
State legislation meets court opposition
Presenter Nadia Sawicki, assistant professor of law, Beazley Institute for Health Law and Policy, Loyola University Chicago School of Law, tells MEA that she chose to discuss certain states' legislation impacting abortion, "One, because we have been seeing a lot of state action in the realm of limiting abortion — making it more difficult to obtain abortions, and imposing these sorts of procedural or consent requirements before allowing doctors to provide abortion."
Much of that activity has taken place in the last two years; however, she says that she was "surprised" that in the last two or three months, "the courts have looked at these state limitations and essentially rejected them either on procedural grounds or substantive grounds, or asked for another opportunity to review. "I highlighted this issue, because I think it's one we should be watching as we go forward," Sawicki says.
South Dakota requiring disclosures
Sawicki notes that in South Dakota, legislation was enacted in 2005 that required physicians to disclose certain information to the woman seeking the abortion before being allowed to proceed. One such disclosure stated that "an abortion is going to end the life of a living human being, and then there are other things . . .," Sawicki says.
"The interesting thing about this law is that these kinds of disclosure requirements are really grounded in really traditional informed consent theory," she explains. "So, for the entire modern era, we've been talking about how important it is that patients have all the facts on the table before they go ahead and make a medical decision. You know, people from liberal to conservative are all in favor of providing information to patients, so that they can make their own decisions."
Although the legislation was framed as providing informed consent, Sawicki notes that based on everything she's read about the case, "the motivations of those who proposed this legislation are sort of uniformly on the pro-life side — not that that there's anything wrong with that in and of itself."
Those who opposed the legislation argued, Sawicki says, that the types of disclosures that were required by the legislation are "not in the same scope as medically necessary or medical relevant disclosures that we traditionally talk about in informed consent."
For example, the opposition also stated, she notes, that the medical profession doesn't know if there is actually a link between abortion and suicidal ideation, but that, in any other context, we would not be requiring doctors to make this sort of disclosure."
So, the legislation forced physicians providing abortions to make these disclosures, regardless of their own clinical opinions. Some physicians also spoke out against the legislation, she says.
"A lot of the opposition to these laws is by the physicians on First Amendment grounds, saying, 'I am a doctor; I have a right to provide informed consent to my patients in whatever manner is appropriate for them.' And for the legislature to really lay down the law and say, 'You must disclose factors x, y, and z,' especially when there's some question about the validity of those disclosures or the accuracy of those disclosures, doctors are saying that interferes with my right to have a communicative relationship with my patient." The South Dakota legislation was passed in 2005, but shortly thereafter, it met opposition from both physicians and women's rights activists
One aspect of the original legislation that the court has rejected pertains to the disclosure of "a constitutionally protected relationship between the mother and the child, which is irrevocably harmed as a result of the abortion. "The court rejected that saying, 'That's just not accurate; we cannot uphold a piece of legislation that is forcing doctors to provide inaccurate information," Sawicki says.
North Dakota's abortion legislation
North Dakota passed a statute requiring physicians who were to provide abortions to first offer an ultrasound and a heart-tone auscultation. The latter part of the legislation was challenged by medical clinics who said that equipment necessary to provide heart-tone auscultation was so expensive that legally mandating this step would essentially put them out of business.
"So, the court ended up upholding the legislative requirement but specifying that the only thing that the clinics are required to do is offer heart-tone auscultation — they don't actually have to be able to provide it," Sawicki explains.
If the patient says yes, then the clinic still has an obligation to refer that patient to a provider who can provide that procedure.