An obligation to provide abortion services: What happens when physicians refuse?

Journal of Medical Ethics

Volumn 22, Issue 2, 1996, Pages 115-120

  Meyers, Christopher ^a,b   Woods, Robert D ^a,b  

^a CALIFORNIA STATE UNIVERSITY   (United States)

^b Kegley Institute of Ethics   (United States)

Author keywords

Abortion; Abortion services; Conscientious objection; Physician obligations

Indexed keywords

ARTICLE; HEALTH CARE ACCESS; HEALTH SERVICE; HUMAN; INDUCED ABORTION; LAW; MEDICAL ETHICS; MORALITY; PHYSICIAN; RELIGION; UNITED STATES;

EID: 0029985299     PISSN: 03066800     EISSN: None     Source Type: Journal    
DOI: 10.1136/jme.22.2.115     Document Type: Article

References (31)

1. California Health and Safety Code: section 2595
2. Approximately two years after this issue was first presented to the ethics committee, the clinic was destroyed by an as yet unidentified arsonist It reopened about two months later in a new location.
3. National Abortion Federation Who will provide? National Abortion Federation, with funding from the American Council for Obstetrics and Gynecology, 1991: 4.
4. See, for example, Alaska Statutes, title 18, Health, Safety and Housing sec 18.16.010; Arizona Revised Statutes, title 36, Public Health and Safety, sec 36-2151; Louisiana Statutes annotated, title 40, Public Health and Safety, sec 1299.31; Michigan Compiled Laws (ann), Public Health Code, sec 333.20182; Washington Revised Code, title 9, sec 9.02.100.
5. See, for example, Alaska Statutes, title 18, Health, Safety and Housing sec 18.16.010; Arizona Revised Statutes, title 36, Public Health and Safety, sec 36-2151; Louisiana Statutes annotated, title 40, Public Health and Safety, sec 1299.31; Michigan Compiled Laws (ann), Public Health Code, sec 333.20182; Washington Revised Code, title 9, sec 9.02.100.
6. See, for example, Alaska Statutes, title 18, Health, Safety and Housing sec 18.16.010; Arizona Revised Statutes, title 36, Public Health and Safety, sec 36-2151; Louisiana Statutes annotated, title 40, Public Health and Safety, sec 1299.31; Michigan Compiled Laws (ann), Public Health Code, sec 333.20182; Washington Revised Code, title 9, sec 9.02.100.
7. See, for example, Alaska Statutes, title 18, Health, Safety and Housing sec 18.16.010; Arizona Revised Statutes, title 36, Public Health and Safety, sec 36-2151; Louisiana Statutes annotated, title 40, Public Health and Safety, sec 1299.31; Michigan Compiled Laws (ann), Public Health Code, sec 333.20182; Washington Revised Code, title 9, sec 9.02.100.
8. The clause actually applies to all California health care workers. For reasons of space and clarity we restrict our discussion to the rights, and obligations held by physicians. Many, but not all, of the arguments below, however, would apply to other health care workers as well.
9. See, for example, California Civil Code, sections 2430-44 concerning durable powers of attorney for health care.
10. See Massachusetts Medical Society v Dukakis (1978) 484 US 896.
11. Bonnie RJ. Medical ethics and the death penalty. Hastings Center Report 1990; 3: 12-8.
12. Right to die and living will issues centre on withholding medical services and Medicaid patient care has a primarily economic focus. Lethal injection cases are fewer in number and therefore less likely to carry with them the strong community need for services.
13. David Gunn and John Britton were physicians who provided abortion services at a number of different clinics in various states in the United States. Each was shot and killed, in separate incidents, by anti-abortion activists.
14. Griswold v Conn (1965) 381 US 479, in which the court found a constitutionally protected right to privacy with respect to family planning practices.
15. Roe v Wade (1973) 410 US 113, in which the court found a constitutionally protected right, based in part on privacy, to abortion.
16. The California Constitution, in article I, section 1, expressly includes the right to privacy. California courts have consistently interpreted this right as constitutionally guaranteeing protection against governmental or societal intrusion into, among other things, health care decisions.
17. This right is exemplified in two regulations - section 5325 1 of the Welfare and Institutions Code (which gives wards of the state access to their family planning needs, including abortions) and title 15 of the California Code of Regulations (which grants, with certain qualification, incarcerated pregnant women the right to receive, at public expense, an abortion or other family planning service).
18. Under some definitions, this situation would not even qualify as one requiring conscientious objection. (See, for example, Rawls J. A theory of justice, Cambridge: Harvard University Press, 1971: 368-71.) We reject such an approach as being too narrow in its conception of what qualifies as an obligation to society.
19. The locus of current debate regarding the extent of physicians' obligations to provide services is centred in whether they have a duty to treat HIV-positive patients. Although the issues here vary somewhat from our concern, the discubssion does provide general insight into the problem. See, for example, multiple authors. AIDS: The responsibilities of health professionals. Special supplement to Hastings Center Report 1988; 2. See also the follow-up essay by Daniels N. Duty to treat or right to refuse. Hastings Center Report 1991; 2: 36-46. For a broader discussion of conscience-based appeals in medicine, see Blustein J. Doing what the patient orders: maintaining integrity in the doctor-patient relationship. Bioethics 1993; 4: 289-314.
20. The locus of current debate regarding the extent of physicians' obligations to provide services is centred in whether they have a duty to treat HIV-positive patients. Although the issues here vary somewhat from our concern, the discubssion does provide general insight into the problem. See, for example, multiple authors. AIDS: The responsibilities of health professionals. Special supplement to Hastings Center Report 1988; 2. See also the follow-up essay by Daniels N. Duty to treat or right to refuse. Hastings Center Report 1991; 2: 36-46. For a broader discussion of conscience-based appeals in medicine, see Blustein J. Doing what the patient orders: maintaining integrity in the doctor-patient relationship. Bioethics 1993; 4: 289-314.
21. The locus of current debate regarding the extent of physicians' obligations to provide services is centred in whether they have a duty to treat HIV-positive patients. Although the issues here vary somewhat from our concern, the discubssion does provide general insight into the problem. See, for example, multiple authors. AIDS: The responsibilities of health professionals. Special supplement to Hastings Center Report 1988; 2. See also the follow-up essay by Daniels N. Duty to treat or right to refuse. Hastings Center Report 1991; 2: 36-46. For a broader discussion of conscience-based appeals in medicine, see Blustein J. Doing what the patient orders: maintaining integrity in the doctor-patient relationship. Bioethics 1993; 4: 289-314.
22. Planned Parenthood of Southeastern Pennsylvania v Casey, (1992) 112 US 2791, specifically with reference to the spousal notification clause.
23. Anonymous. Statistical Abstract of the US. Washington DC: Department of Commerce, Bureau of the Census, Economics and Statistics Administration, Government Printing Office, 1991. Washington DC.
24. Sections 2051ff. See also Lawton v Board of Medical Examiners (1956) 143 Cal app 2d 256.
25. Mary Anne Warren, among others, contends that demonopolising these services represents the best solution to the problem. (Warren MA. Unpublished observations presented in response to this work during the Pacific Division Meetings of the American Philosophical Association, 1992, Portland, Oregon). We believe that this would reduce, but not eliminate, the problem, since other health care workers could and likely would also declare conscientious objection. Also, we do not believe the American Medical Association would accept such a de-monopolisation and the precedent it would represent.
26. Winner L. The whale and the reactor: a search for limits in an age of high technology. Chicago: University of Chicago Press, 1986: 159, 162.
27. Fifty United States Code appendix, section 456(j). We recognize that military conscription is not a perfect analogy to abortion services. We contend, though, that they have key similarities. Both involve issues of deep moral import, both involve large segments of the population, and both involve decisions with life or death consequences.
28. Gillete v US (1971) 401 US 437; and Sicurella v US (1955) 348 US 395.
29. Sicurella v US and US v Spiro (1967, 3d Cir) 384 F 2d 159, cert den at 390 US 956.
30. Taken in part from the California Supreme Court test of whether proposed restriction of rights is supportable, rooted originally in Committee to Defend Reproductive Rights v Myers.
31. The goal here is to require some service that is both of comparable social benefit and, to most physicians, similarly "distasteful". Thus our tentative suggestion would be for twenty hours per year of indigent medical services.