Repealed abortion law puts doctors at risk
Physicians and their employers are working to get ahead of the upcoming Supreme Court ruling in Roe v. Wade, concerned that their legal impact on “happy” prosecutors in 26 states is poised to limit access to abortion services.
The Supreme Court could strike down a federal law giving women the constitutional right to terminate pregnancies by enacting “active laws” restricting abortion services or pre-1973 abortion bans in about half of the states, according to the pro-choice Guttmacher Institute groups. In May, a draft opinion was leaked, repealing the law and sparking talk of legal liability among doctors, employers and their legal advisers.
Physicians will have minimal legal protection as state courts consider potential civil, administrative and criminal charges related to abortion in states that restrict or ban these services, lawyers and law professors say.
While their liability will depend on the nature of the allegations, employers’ tolerance for risk and their malpractice insurance policy, doctors will face greater risk without Roe’s protection, lawyers said.
“There won’t be much protection for continued provision of abortion services in very restrictive states,” said David Gasiok, partner at law firm McDermott Will & Emery. “Physicians will be subject to investigative decisions and charges made by the District Attorney and the State Attorney General. What we are seeing is the likelihood of clinics closing their doors.”
Patient care policy will depend on how much risk physicians and their employers are willing to take. According to Michelle Oberman, a Santa Clara law professor, some attorneys will advise doctors to risk prosecution if they abort an ectopic pregnancy, while others may tell clients not to have such a procedure if they work in a state where new laws are followed. University in California.
“Doctors will find themselves between a rock and a hard place. If they don’t save someone’s life by having an abortion, they face malpractice or potential criminal charges,” she said. “Doctors are easy prey for trigger-loving prosecutors.”
Even if a doctor performs an abortion in a state that allows it after Row, lawyers say, he can be prosecuted if he is licensed in a restrictive state. Legal boundaries are not defined when it comes to telemedicine services and what constitutes abortion care.
“Laws are broad and boundaries are uncertain,” said Stacey Callaghan, partner at law firm McDermott Will & Emery.
To get ahead of the curve, some hospitals and clinics are reportedly resorting to sending encrypted messages and calling patients on the phone to avoid a paper trail. But hypothetically, prosecutors could point to the lack of email communication as an intent to circumvent state laws, lawyers say.
Many health care systems are exploring ways to bolster their malpractice insurance to include coverage for abortions in banned states if a woman’s life is in danger. According to Michael Gerhardt, a law professor at the University of North Carolina, while malpractice insurance covers malpractice and medical errors, it is unlikely to cover state fines and sanctions.
“States can pass laws to prevent insurance companies operating in their states from doing this,” he said.
Physicians and their employers will have to plan differently depending on whether the claims are civil, administrative or criminal. The malpractice policy generally avoids criminal charges, said Mark Silberman, chairman of the White Collar, Government Investigations and Compliance Group at law firm Benesch.
“If a doctor commits an act that is not permitted by law, it is unlikely that he will be insured against malpractice, especially if this action is framed as a criminal one,” he said. “This could have significant financial implications and negatively affect the care needed.”
Providers and their employers should discuss with their legal counsel when they should seek legal advice, the limits of patient-physician confidentiality, and which scenarios trigger exceptions under state restrictive laws, experts say. There should be clear lines of communication that can help moderate the development of a protective medicine culture, Oberman said.
“There is no consensus among medical professionals about what a life-threatening pregnancy is,” she said. “Doctors will be scrambling about the norms in all of this.”
Restrictions on abortion in some states can lead to a number of unforeseen consequences. Doctors, for example, are likely to change typical treatment pathways, experts say, which could jeopardize patient care.
When Oberman worked in El Salvador, doctors tried to get around the country’s strict ban on abortion. A doctor in El Salvador could not recommend an abortion if a breast cancer patient was pregnant. Instead, they will give the patient a small amount of radiation, a relatively untested intervention, hoping it will eliminate the cancer without harming the fetus, she said.
“Doctors are doing medical experiments,” Oberman said. “If something goes wrong, doctors can be held liable if there is harm to the fetus or if they didn’t tell the patient that she should go to another country.”
In the US, more women are willing to take the abortion pill, which can cause bleeding and lead to an emergency room visit if taken too late in pregnancy.
“Abortions don’t disappear—they move from the clinic to the home,” Oberman said. “It’s already changed that way.”
At the same time, the balance between providing access to abortion and keeping the risk of enforcement low will depend on the healthcare provider and their employer. Health systems will have to decide who they will protect if they face criminal or civil scrutiny, how they will discuss treatment options with patients, and which healthcare providers they will turn to in case of potentially life-threatening emergencies.
Ideally, there should be clarity in both the purpose and application of state laws, Zilberman said.
“If the law is not clear and the question is whether the aid provided has fallen below an acceptable standard of aid, malpractice coverage can be confusing,” Zilberman said. “The difference is significant. Either we’re going to cover and protect you, or you’re on your own.”