Should Abortion Providers Break the Law?

The horrific stories are pouring in. A Texas woman’s water breaks at 18 weeks, leaving the fetus’s chance of survival “as close to zero as you’ll ever get in medicine,” according to one expert. Yet she must wait until she is hemorrhaging profusely and burning with fever — that is, not dead but almost — before the doctors agree that it’s legal to perform an abortion. A Tennessee resident learns that her baby’s “brain matter [is] leaking into the umbilical sac,” gravely threatening her own health. She is forced to travel 200 miles to another state where doctors may take the fetus from inside her. A Wisconsinite bleeds for more than 10 days from an incomplete miscarriage because the emergency room staff fears that performing the standard-of-care uterine evacuation will be against the law.

The antis scoff at these stories. They accuse abortion proponents of exaggerating the dangers of criminalizing abortion in order to murder more babies for profit. Organizations like Students for Life and the American Association of Pro-Life Obstetricians and Gynecologists continue to hold that “abortions are never medically necessary,” giving lawmakers cover to press the limit of legal abortion ever closer to the pregnant person’s demise. Typical language is Missouri’s, which allows a pregnancy to be terminated only when “a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman,” or kill her. No one, not even the most experienced practitioner, knows precisely when this moment arrives.

It was in the liminal space between hyper-restriction and complete prohibition that 31-year-old dentist Savita Halappanavar died of septicemia in an Irish hospital in 2012. Her death helped propel the Irish abortion decriminalization movement to victory six years later. With extremists gunning to eliminate all exceptions to abortion bans, Medical Students for Choice Executive Director Pamela Merritt worries that restoring abortion rights in the U.S. may require a similar sacrifice. “We’re going to have to see what happened in Ireland, a completely preventable death,” Merritt said. “It will take more than one.”

“At what point does the duty to comply with laws enacted by a legislative majority (or with executive acts supported by such a majority) cease to be binding in view of the … duty to oppose injustice?” wrote the philosopher John Rawls in “A Theory of Justice.” Were Rawls alive today, he might ask, “At what point does the duty to comply with laws enacted by a judicial cabal of five and supported by a minority cease to be binding?” Sooner, I think.

Rawls’s question comes at the beginning of his discussion of civil disobedience, which he defines as “a public, non-violent, conscious political act against the law with the aim of bringing about a change in the law or government policy.” Clinicians are anguishing over the impossible choice between good medicine and bad law, between their oaths to do no harm and the unscientific, cruel bans that force them to abandon their ethics and do harm or face penalties as heavy as life imprisonment. Almost all obstetrician-gynecologists detest these bans and envision no end to them. They also know that their own action or inaction may spell the difference right now between their pregnant patients’ security and poverty, safety and domestic abuse, health and impairment, life and death.

Should doctors break the law?

Throughout history they have, sometimes with extraordinary heroism. During the German occupation of the Netherlands, for example, Dutch physicians unanimously refused to join the Nazi medical guild, which would have meant committing atrocities such as euthanizing chronically ill patients. The doctors turned in their licenses instead, even after 100 of their colleagues were sent to concentration camps.

Civil disobeyers, says Rawls, maintain the legitimacy of their cause by showing that they are not acting only in self-interest and that they respect democracy and the rule of law: They willingly pay the price for defying an unjust law. Curtis Boyd began providing abortions in East Texas in the 1960s through the Clergy Consultation Service, a network of ministers and rabbis who arranged at least 450,000 clandestine medical abortions before Roe v. Wade. “This law needs to be changed, this service needs to be provided, and I’m going to do it understanding the risk I am taking, which may include going to prison,” Boyd recalls in the video “Voices of Choice: Physicians Who Provided Abortions Before Roe v. Wade.” He is still giving abortion care in New Mexico, where he is one of a small number of U.S. doctors who perform late-term procedures.

In 1967, the San Francisco OB-GYN and abortion rights advocate Edmund W. Overstreet articulated the ethos of “doctors of conscience” like Boyd: “We do not believe that violation of an archaic statute is unprofessional conduct, nor that it is unprofessional for a physician to conduct himself in accord with the ethics of the community, the wishes of patients, and the best medical judgment of doctors,” he wrote.

The American Medical Association is not as strident as Overstreet. Yet its code of ethics also suggests that civil disobedience is sometimes the correct course of action. “In some cases, the law mandates conduct that is ethically unacceptable,” it reads. “When physicians believe a law violates ethical values or is unjust they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal duties.” The laws are profoundly unjust. The circumstances are exceptional.

For some providers, the risks of civil disobedience are too great. Mildred Hanson, who also appears in “Voices of Choice,” was a single mother of four treating patients mutilated and traumatized by trying to end their own pregnancies. Yet she held off while her kids grew, before beginning to perform the procedures that would prevent this misery. The risks may in fact be greater today than they were for Hanson, given the merciless statutes, the long prison sentences of the carceral era, and the state surveillance enabled by electronic media.

For some, the demand is too burdensome — and unfair. “I find these calls for civil disobedience, in truth, hurtful,” said Louise Perkins King, a physician, an assistant professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School, and the director of reproductive bioethics at the school’s Center for Bioethics. “The failings of our health care systems and our political systems are ours to bear. We can’t constantly look to overworked — and in the case of women’s health, underpaid — doctors to save us with their altruism.”

King also feels that the one act of conscience conflicts with another ethical duty: “to ensure they can continue to provide care to their community.” Physicians have the same obligation as other citizens to work politically to change the laws, she believes; they should use the symbolic power of their white coats if they can. “I would support any doctor who breaks these laws to provide care,” she averred. “But I would also critique them [because] that would leave a gaping hole in access to care for hundreds or thousands of patients as they fight a felony charge while their license is suspended.”

Katie Watson, a lawyer and bioethics professor specializing in obstetrics and gynecology at Northwestern University’s Feinberg School of Medicine, agrees with King that no one should feel pressure to commit civil disobedience; there are “20 other ways” to participate. For Watson, though, the absence of a single doctor for some period of time is a shortsighted reason to reject civil disobedience. “I encourage physicians to think historically in addition to thinking about what will happen tomorrow. Five to 10 years from now, what actions will I be proud that I did or did not do?” said Watson. “We need to run the sprint and the marathon at the same time.”

For Rawls, publicness is a hallmark of civil disobedience. But Watson thinks that “covert disobedience” is more apt for this moment. “You do it covertly for two reasons,” she explained. “The need is immediate, and you do not believe CD has any chance of changing the law.”

Some docs are freer to act than others — California and Massachusetts, among other blue states, have moved to shield providers who help patients from anti-abortion states and the patients who travel for that help. Do these providers have an ethical duty to do so? Mary Faith Marshall, director of the Center for Health Humanities and Ethics at the University of Virginia School of Medicine, answered carefully. “Under the oath I have taken, I have a body of knowledge and skills and profess to use them at the benefit of my patients even to my own detriment. We don’t require people to be martyrs,” she stressed. But “providers should be advocating for their patients at the level of the individual and at the collective level. It may mean civil disobedience; it certainly means lobbying, speaking out.” Just as doctors toiling in the hospital sepsis wards were instrumental in Roe, clinicians are best positioned to show legislators in ban states: “These are the sequelae of your decisions.’”

Like most of the people I spoke to, Matthew Wynia does not expect lots of doctors to step out and declare themselves felons. “We docs are rule-followers,” he wrote in an email. “But the one place where we might become rebels is when a state law directly forces us to harm our patients.” Hospitals are risk-averse and tightly regulated. Departure from the law can result in lost funding, censure, or discreditation. Nevertheless, hospitals protect undocumented patients from immigration authorities. ERs revive patients who overdose on street opioids without informing the narcotics police. “If a state law today forces us to harm patients by waiting until they are at death’s door before we intervene with life-saving surgery,” continued Wynia, an internist and director of the University of Colorado’s Center for Bioethics and Humanities, “it is reasonable to debate whether that’s a law we should collectively disobey.” In the AMA Journal of Ethics, Wynia proposes “professional civil disobedience,” in which groups and associations decide together “to break a social rule in order to support the medical needs of our patients.”

Encouragingly, medical associations have responded to the overturn of Roe with unprecedented unity and clarity. More than 75 of them joined the American College of Obstetricians and Gynecologists and the American Medical Association in a statement condemning the bans. “Our patients need to be able to access — and our clinicians need to be able to provide — the evidence-based care that is right for them, including abortion, without arbitrary limitations, without threats, and without harm,” they declare. The extreme right may be pushing the medical establishment leftward. At its June convention, the AMA, hardly the most radical organization on the planet, resolved to “recognize that health care, including reproductive health services like contraception and abortion, is a human right.” These organizations can do more by establishing funds to support the legal expenses and lost income of members sidelined by the consequences of ethical, illegal actions. And there are myriad other institutions that can be pressured to slow, even if not outright sabotage, the destructive machinery: university administrations, state licensing boards, federal agencies.

Watson believes that together, substantial numbers of civil disobeyers could change hearts and minds and with them norms and, finally, laws. “The social reaction to these laws will determine whether they are legitimate or illegitimate,” she told me. “This is the moment for those who believe they are illegitimate laws to refuse to accept them.” Resistance takes place in the streets, in academic journals and op-ed pages, and at the bedside. “It is up to doctors to determine what is imminent risk, and as soon as it is defined and predicted, not to wait for it to become realized” — in other words, when the water breaks, don’t sit on your hands until the patient is on the verge of sepsis. “If everyone agrees, then that becomes the standard of care. And the hospital counsel has to tell the docs, ‘Do good medicine. I have your back.’” The imperative is to act now, she said. “This is how the historic moment can turn without waiting 50 years for a new Supreme Court.”

We may find that the tragic stories alone will change the laws faster than anticipated. Nearly three-quarters of Americans favor legal abortion if a woman’s life or health is at risk, a recent Pew Research Center poll found. It is not difficult to look at an ectopic pregnancy, a case of pregnancy-caused life-threateningly high blood pressure, or a severe fetal anomaly discovered late in gestation and understand that abortion care is inextricable from the other work of doctoring. Even the American Association of Pro-Life Obstetricians and Gynecologists finesses the untruth that abortion is never medically necessary by distinguishing it from “preterm parturition,” which, they say, does not entail killing the fetus but is merely “separating a mother and her unborn child for the purposes of saving a mother’s life.” If only to legitimize other ignorant and punitive provisions, anti-abortion states may amend the bans to allow doctors who treat complex or problematic pregnancies to do their jobs without legislative meddling.

Far more difficult, though, as always, will be defending what Watson calls “ordinary” abortions, what doctors used to term “elective” — to distinguish them from “therapeutic” — abortions, and what the American Association of Pro-Life Obstetricians and Gynecologists derogates as “induced abortions,” whose only aim is to “produce a dead baby.” These are the abortions that I and millions of others have had, without a 104-degree fever, without three kids crying for milk, without an artistic career to pursue or two crappy jobs without insurance or family leave to hold down. We sought abortion for no other reason than we were pregnant and did not want to be.

To regain the right to ordinary abortion, appeals to good medicine lose their power, and little a provider does or refuses to do will win the day. Instead, we must let it be known that — as National Advocates for Pregnant Women Executive Director Lynn Paltrow, Lisa Harris, a doctor and professor of obstetrics and gynecology at the University of Michigan, and the University of Virginia’s Marshall argue in a forthcoming issue of the American Journal of Bioethics — something much bigger is at stake.

A bedrock principle of justice, from common law to constitutional law, is that no one can be compelled to give over their body or any part of it to save another person, even if the other person might die without it. Such a forced intrusion “would change every concept and principle upon which our society is founded,” wrote a Pennsylvania court in a 1978 case upholding a man’s right to refuse to donate bone marrow to his cousin, who needed it to survive.

When the person becomes pregnant, however, fissures open in the bedrock. This is where Roe came in. “While we conventionally think of Roe as the decision that defined the Constitutional right to not be pregnant, it also delineated — and was in fact the first articulation of — rights a woman has while pregnant,” write Paltrow, Harris, and Marshall. Each in her own capacity, these authors have witnessed hundreds of pregnant people in the U.S. — almost always those who use drugs and are brown, Black, and/or poor — arrested, detained, and forced to undergo unwanted medical procedures and treatments to “protect the fetus,” even when their pregnancies were proceeding normally. With Roe gone, the threat of such violation spreads to every uterus-bearing human: “An abortion ban [means] that anyone who becomes pregnant … will become newly vulnerable to legal surveillance, civil detentions, forced interventions, and criminal prosecution.” The bans, they write, create “a new class of persons for whom fundamental Constitutional rights don’t apply.” This is not a medical problem. It is a legal, existential one.

For 150 years, the medical profession has dominated reproduction and abortion. With this dominance comes both power and vulnerability — and ethical obligation. Yet if we leave abortion to the doctors, we risk privatizing and depoliticizing it. Since the overturn of Roe, I’ve noticed that the word “abortion” has gained a tail: It’s now “abortion care.” Indeed, abortion is health care, as the placards and T-shirts say. And the decision to end a pregnancy may be taken “in consultation with” a doctor, just as it may involve a lover, mother, affinity group, or, in the hearts of its parents, the fetus.

But not all abortion is care, defined as what one person does for another. It is, instead, something a person does for herself, by herself. Abortion is a defining act of autonomous, free individuals exercising their inalienable human rights. We must fight for abortions that enrich lives, not just those that save them.