As new abortion bans are enacted around the country, physicians working with pregnant patients are facing potential ethical and legal dilemmas. Even if a law allows for an exception when the life of the mother is at risk, there are no clear answers for doctors trying to decide if and when they can act.
Matthew Wynia is a physician who has spent decades focused on medical ethics, including roles at the helm of the Ethics Institute at the American Medical Association and the Ethics Forum of the American Public Health Association.
What should physicians do when following the law could harm, or kill, the patients they’ve taken an oath to care for? STAT spoke with Wynia, who authored a perspective piece in the New England Journal of Medicine that poses a path to consider: professional civil disobedience.
This interview has been edited for clarity and brevity.
Can you give an overview of what you’re proposing in NEJM?
There are going to be — and there already have been — a number of reported instances where doctors, nurses, and other health professionals feel like they cannot live up to the standard of medical care and their ethical responsibility to do their best for their patients and still stay within these laws. And that poses a tremendous dilemma for any individual health professional. But I’m not actually calling on individual professionals to disobey laws. Some will — most clinicians are not so radical.
There’s such consistent messaging from professional associations right now about the negative impact of the Dobbs decision on our ability to practice good medicine. It’s really remarkable. Every major medical group has come out with a statement saying this is going to harm patients and it puts doctors in an untenable position of having to choose whether to stay within the bounds of the law or risk going outside the law in order to do the right things for their patients. And so the question I wanted to raise is, beyond issuing those statements, what are we going to do as a profession, not as individuals, but as a profession? How do we support each other when these cases start to come down the pike — because they’re coming — where doctors are going to be prosecuted because they have chosen to adhere to the standard of care? That was why I called it professional civil disobedience, as opposed to individual civil disobedience.
What might this sort of profession-wide action look like on the ground?
I wish I had an explicit road map for this. I gave the example in the piece of the Dutch physicians during World War II; When the Nazis took over the Dutch medical community, they turned in their licenses en masse and said, “We will not practice under Nazi rule.” And they went into practice underground. And that’s obviously a very extreme example, but it does set a parameter for what it looks like. Physicians have an incredibly important role to play, and there are many other actors who have an important role to play. What is the legal community going to do, or what are patient advocacy organizations going to do?
I think there are very discrete things. The AMA has an advocacy center, which is legal advocacy. And that advocacy center could devote some resources and attention to getting ready to defend these cases. Standard-setting organizations should be thinking about how to clarify the standards that govern the care of patients with cancer who are also pregnant, where some of the most difficult decisions end up being made. They should be trying to clarify processes for looking at patients who are experiencing a miscarriage, but there’s still a heartbeat. What’s the strategy that is clinically defensible that meets the standard of care? And if that strategy requires you to go outside the law, to say, “We will support you. When you face these kinds of situations, we’ll be here.”
Has this type of action from mainstream organizations happened before in the United States?
At the time of the Iraq War, there were known examples of clinicians who were involved in the so-called “enhanced interrogation program” — torture. And the AMA publicly said, “If you as a health professional are being called upon to participate in torture, we are here for you. You can disobey that and we will support you.” As far as I know, no one ever sought to avail themselves of that. There were people who refused to participate in the torture program, but as it turned out, they actually didn’t need anyone’s support because, unfortunately, they were able to find other people to participate in the program.
These are some powerful examples, but you also wrote that this type of profession-wide action is quite rare. Why do you think that is?
There may be something about people who go into medical school and succeed. We are people who know how to take tests well. We do well in school. We don’t break the rules. For the most part, most of us will try our very hardest to stay within the bounds of the guidance that we’re given. And it’s only when, you know, that guidance really puts our patients at risk that we’re liable to see ourselves as having this social, political role of trying to change the world so that it is better protective of our patients and their health care rights.
What do you think is the significance of publishing this piece on professional civil disobedience in NEJM, which is one of the most prestigious academic journals in the profession? Does it lend legitimacy to this proposal?
I hope it does because I didn’t propose an answer. I proposed the beginning of conversations. The thing that’s most distressing is that there are patients who are actually being harmed right now as a result of this decision. But the second most distressing thing is that when you read articles about this in the press or even in NEJM, you see quotes from people who just take it as a given that the law is what the law is, and we have to work around it. We cannot break the law. And to say that is to ignore the possibility that the law is wrong, and it’s to ignore an injunction in our own code of ethics that says in those rare cases where the law requires you to do something that is unethical, you should not do that. You should do the ethical thing and face the consequences, which means thinking about how we support each other to uphold our ethics.
What is your hope for the future regarding potential professional civil disobedience, and what is your expectation?
My hope is that this conversation is a catalyst for additional conversations about the social rules of the medical profession and creating a community, a nation, in which health is supported across the board. So this is a very targeted issue, but there are many other areas where social policies are destructive to health. And all of us are struggling right now with these social determinants of health issues. And one way to help reframe those conversations is to say the political policy environment is not immutable. Health professionals are actors in creating this social, political, legal environment. And if you become activated because of the Dobbs decision, that will be helpful not only in addressing the Dobbs decision, but in a number of other areas where legal and political and social policies probably ought to be rethought to better support health, which is, after all, our our primary ethical charge as health professionals.
What do I really think will happen? I honestly don’t know. I have a cynical side which says what I said before, which is that doctors are not radicals. So I guess I don’t really expect that to change. And yet, as stories come out of our colleagues being prosecuted for providing standard medical care, I think there may be a groundswell of support for those doctors.
Another question is: What is the difference, if any, between harming a patient and standing by while the patient gets harmed by the underlying condition. This has been debated in ethics and philosophy for a long, long time. I’m not going to resolve it. But I will say that for a doctor to stand by and not help someone — or failure of rescue, which is sometimes the term that is used — is a professional dereliction of duty. So there may also be cases where doctors are charged with malpractice for failing to provide standard of care. And I think that’s the piece of this that we have not really thought as much about — I don’t know if a jury will look at you and say, “Well, you were obeying the law. What else could you do?” I think there’s a chance the jury would say, “Doctor, why didn’t you move forward? Why did you let your fear of breaking the law prevent you from providing the quality medical care that you knew this patient needed?”
We are really between a rock and a hard place in these circumstances, in terms of the law. You’re in legal jeopardy in both directions. And the good news is that if you’re in legal jeopardy in both directions, do the right thing.