The following are several recent publications by Prof. Michelle Oberman and colleagues, growing out of an ongoing research project studying the impact of abortion bans on clinicians in the USA. These pieces all reflect concern with the impact of bans on doctors’ willingness to provide all-options counselling, let alone information on where to find a legal abortion.
The most comprehensive piece, Doctors’ Duty to Provide Abortion Information, directly discusses the authors’ research with clinicians in a state where abortion provision is banned. It provides a detailed ethical and legal analysis of their concerns about providing abortion information, then demonstrates why, in spite of these concerns, doctors are duty-bound to continue providing abortion information and counselling.
Doctors’ Duty to Provide Abortion Information
by Michelle Oberman, Lisa Soleymani Lehmann
Forthcoming in Journal of Law & Biosciences 2023 (42 pages). Posted to SSRN: 28 April 2023.
Last revised: 12 July 2023
With abortion remaining legal in over half of the country and a proliferation of websites offering information on how to access abortion medications, for those who know where to look, there are sound options for safely ending an unwanted early-stage pregnancy. But not all patients have equal access to reliable information. This Article addresses the urgent downstream harms caused by the lack of access to abortion information, particularly among the most vulnerable Americans, and argues that, in view of these consequences, regardless of abortion’s legal status, clinicians have a duty to provide their patients with abortion information.
We begin with an overview of the findings from interviews with 25 doctors practicing medicine in a state where abortion is criminalized – findings that revealed considerable hesitation to share abortion information. We then examine clinicians’ ethical and professional obligations in the context of providing abortion information, showing how the provision of abortion information is central to sound ethical and clinical practice. Following this analysis, we consider the question of whether these duties shift where abortion is criminalized. First, we explore the risks for clinicians who share abortion information, identifying and evaluating the potential criminal and civil consequences that might follow from providing a patient with accurate abortion information. We then explain how and why professional societies should act to minimize harm to patients and clinicians through clear statements about clinicians’ duty to share health information with patients regardless of the state in which a patient resides. We conclude that, regardless of the legal status of abortion, clinicians have a professional responsibility to share with their patients’ basic abortion information – including treatment options and how to access those options.
Against Silence: Why Doctors are Obligated to Provide Abortion
by Michelle Oberman
Santa Clara Law Digital Commons 2023 (Open access)
As a lawyer, I have long been interested in the gap between law and the books and law in practice. In 2008, this curiosity led me to Latin America, where I began studying the impact of the world’s most restrictive abortion bans. My first stop was Chile, which at the time banned abortion under all conditions–– there was not even an exception to save women’s lives. Raised on the history of what happened when abortion was illegal in the United States prior to Roe v. Wade, I knew asking doctors to share their experiences was one way to gauge the impact of abortion bans. I went to Chile expecting to hear stories of women dying from the consequences of unsafe abortions. The doctors I interviewed quickly disabused me of that idea by firing up their old desktop computers, and with a few clicks showing me how simple it was to buy abortion medicine from guys in backpacks, right on the city’s main street. Clearly medication abortion had transformed what “illegal abortion” looked like on the ground.
From Chile, I went to El Salvador, which not only had a law banning abortion without exception, but also had a government committed to prosecuting the crime. For a decade, I studied the impact of El Salvador’s abortion ban, learning how abortion bans work in practice. Abortion rates remain high in El Salvador, regardless of the law. Indeed, an estimated 1 in 3 pregnancies….
The Salvadoran doctors showed me the range of ways in which doctors find themselves on the frontlines when abortion is criminalized. The law limits and complicates their options when treating pregnant patients. Doctors find themselves conscripted into the abortion war as arms of the state, pressured to report patients they suspect of having deliberately ended their pregnancies. For Salvadorans, safe abortion turns on access to pills and on access to information about how to use them. The law also produces health crises, particularly in their most vulnerable patients, who are less likely to have access to information about abortion medication. The single biggest cause of maternal mortality in the country—3 in 8 maternal deaths––is suicide among pregnant teens.3 Because of this background, I was prepared for much of what would happen in the U.S….. (continues 14pp.)
Abortion Counseling, Liability, and the First Amendment
by Katie Watson, J.D. and Michelle Oberman, J.D., M.P.H.
New England Journal of Medicine, 18 August 2023; 389:663. Copyright ©2023 Massachusetts Medical Society. Reprinted with permission.
“When a clinician tells pregnant patients that they can’t have an abortion because state law prohibits it, what’s the clinician’s next sentence?
“In the 16 U.S. states with bans on the provision of all or most abortions in effect, clinicians may feel compelled to say nothing. Consider the case of Deborah Dorbert, who asked to end her pregnancy after learning that her fetus had Potter’s syndrome and was sure to die. Her doctor told her she was “too late” for Florida’s ban, so she endured agony-filled months before delivering a baby that died within minutes. Yet surely Dorbert’s doctor knew she had other options. Dorbert said, “The thing that scared us [about having an abortion in another state was] we didn’t know if we’d go to jail…. We couldn’t have anything happen to us, because we have another child.” She and her husband also “didn’t have the money to travel.” Why didn’t her doctor refer her to a free legal helpline such as If/When/How, whose attorneys would have confirmed that travel posed no legal risk to Dorbert? Why didn’t her doctor provide information about funds such as the National Abortion Federation’s Hotline Fund, which helps patients pay for abortion care?
“Dorbert’s doctor is not alone: 1 year after Roe v. Wade was reversed, KFF (formerly the Kaiser Family Foundation) reported that in states that ban abortion provision, 78% of Ob/Gyns don’t make out-of-state referrals, and 30% don’t inform their patients about online resources that explain their abortion options. In states that ban abortion provision after a designated point in gestation (ranging from 6 to 22 weeks), 44% of Ob/Gyns don’t refer, and 10% don’t offer information….
“Clinicians have an ethical obligation to practice to the full extent of the law when patient care requires it. But the risk posed by sharing abortion information in states with bans is largely untested. This legal confusion works to the advantage of abortion opponents, providing clinicians with an incentive to alter standard-of-care medical practice such as all-options counseling without requiring states to enact more controversial laws or pursue unpopular prosecutions. The impact on patients may be devastating.
“In most instances, abortion counseling does not violate any law, as we explain below. But when confronted with legal uncertainty, it’s important to remember that the American Medical Association (AMA) exhorts clinicians to do what’s ethically right, even when it’s illegal….” (continues)
Finally, this op-ed explains why clinicians have an ethical obligation to provide abortion information:
Doctors in states that ban abortion can still refer patients elsewhere. Why are so few doing that?
by Michelle Oberman, Katie Watson, Lisa Lehmann
Stat News, 28 July 2023
“For now, abortion remains accessible even in states where it’s banned — at least for those who know where to look. It’s still legal in two-thirds of the country, and numerous websites cexplain how to order medications from international pharmacies to end early pregnancies at home.
“But not all patients have equal access to reliable information. Even before Roe v. Wade’s reversal, the most vulnerable U.S. patients — particularly low-income women, women of color and first-generation immigrants — disproportionately lacked accurate knowledge about abortion access. Today almost half of Americans are uncertain about the legality of medication abortion.
“That’s why we should be alarmed by a recent report from KFF, which found that in states that make it a crime for a doctor to provide an abortion, 78% of OB-GYNS don’t make an out-of-state referral and 30% don’t inform their patients about online resources explaining their abortion options. In states that ban providing abortion between six and 22 weeks, 44% of OB-GYNs don’t refer for abortion services, and 10% don’t offer information.
“These numbers mark a dramatic departure from all-options pregnancy counseling, which has been the governing standard of care for decades. Clinicians are duty-bound to provide abortion information because it is legal in most states, patients have a constitutional right to travel, and abortion care remains essential for preventing maternal morbidity and mortality….
“This context creates an ethical imperative for clinicians to provide abortion information. Doctors’ silence violates their central ethical obligations to respect patients’ autonomy, advance justice, and promote beneficence. Patient autonomy is the lynchpin of modern medical ethics and withholding information strips patients of it because it denies or delays their ability to make an informed decision, consistent with their values. It is unjust for doctors to leave those with lower health literacy unable to exercise the options available to more educated patients….
“This withholding also escalates medical and legal risks for the most vulnerable patients, who may use later, riskier methods, fall prey to anti-abortion misinformation, experience poorer outcomes, and, when things go wrong, bear the risks of prosecution, which disproportionately targets poor Black and brown women. The KFF survey shows OB-GYNs already understand the racist impact of abortion bans: 70% of OB-GYNs report a worsening of racial and ethnic inequities in maternal health since the Dobbs decision. Bound by the duty of beneficence, the requirement of doing good for patients, doctors must lessen these risks by sharing accurate abortion information.
“The astonishing thing about clinicians’ rapid shift away from all-options counseling is that, to date, no state has prosecuted a doctor for sharing abortion information. In fact, no state law includes a blanket ban on the sharing of abortion information. Instead, the chilling effect of these bans has led doctors to pull back from ethical medical practice….”
Thanks to Iqbal Shah for sharing these articles.
VISUAL: Hope Clinic badge, Illinois, USA: Angela Weiss/AFP via Getty Images in Stat News