Ranit Mishori, Payal K. Shah, Karen Naimer, and Michele Heisler
[a]s a provider, I am supposed to counsel my patients on risks and benefits, alternatives, and help them navigate through making a decision. And I can’t do that… because it’s not allowable and I can go to jail.[1]
Since the 2022 US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade, clinicians have been struggling to provide routine medical care and to manage situations where well-established standard practices for patient care are in conflict with new state laws that have expanded legal restrictions on sexual and reproductive health care. This dilemma is known as dual loyalty.
A growing number of states have imposed restrictions on abortion care, including 14 that have introduced abortion bans with limited or no exceptions and severe civil and criminal penalties against clinicians.[2] Some states are also considering or passing laws that could restrict gender-affirming care and assisted-reproductive technologies such as in vitro fertilization.[3]
Clinicians in these states are experiencing an expanding array of dual loyalty conflicts as they attempt to practice patient-centered healthcare.[4] Clinicians are being forced to choose between providing evidence-based care or obeying new legal prohibitions when treating pregnant patients, including those facing pregnancy-induced medical emergencies or with severe co-morbidities. The resulting delays or denial of care is causing devastating harm to patients, moral distress to clinicians, and expanding health inequities.[5]
The concept of dual loyalty encompasses situations in which clinicians and other healthcare workers find their medical and ethical obligations to their patients in direct conflict with their obligations to a third party, be it a state or employer.[6] Throughout history, powerful state actors have created situations that mandate clinicians to betray their professional ethics. These include participating in or supporting torture, withholding medical care from some individuals and groups, partaking in executions or research studies based on non-consensual medical experimentation, forcibly feeding hunger strikers, among other human rights-violating actions.[7]
The failure by clinicians to provide their patients with standard and evidence-based healthcare also contributes to violations of human rights.[8] These include the rights to life, health, non-discrimination and equality, freedom from torture and ill-treatment, privacy, reproductive self-determination, and the benefits of scientific progress.[9] Dual loyalty conflicts extend to US medical specialists who may be forced by current bans to withhold urgently needed care: for example, an oncologist considering chemotherapy for a pregnant cancer patient, a pediatrician assessing a transgender patient for hormone treatment, or an internist treating women for autoimmune disease.[10]
International bodies focused on professional ethics overwhelmingly agree that patients’ interests must be centered in the imperative to “do no harm”. For example, the World Medical Association’s (WMA) Declaration of Geneva urges physicians to pledge that “the health of my patient shall be my first consideration,” and upholds the principle that physicians provide medical services in “full technical and moral independence”.[11] The WMA International Code of Medical Ethics includes the pledge not to use “medical knowledge to violate human rights and civil liberties, even under threat”.[12] To do otherwise risks violating professional and ethical obligations as well as being complicit in violations of a wide range of internationally recognized human rights standards and treaties.[13]
Physicians for Human Rights and other experts have highlighted physicians’ responsibility to respect and promote human rights as part of “a social pact in which society and its institutions accord the health professional status, power and prestige in exchange for a guarantee that [physicians] will meet certain standards of practice”.[14]
Clinicians have long faced dual loyalty dilemmas and conflicts in their provision of sexual and reproductive healthcare. Clinician participation—sometimes coerced—in state or institutionally mandated actions such as forced sterilization, forced abortion, forced contraception, forced pregnancy, denial of contraception, and mandatory reporting of pregnant people with evidence of substance use, has been extensively documented around the world.[15]
Clinicians—even those practicing outside restrictive states—face the fear of civil or criminal charges, fines, loss of medical licensure, among other possible penalties. The threat of violence is also real: US sexual and reproductive health providers faced significant physical attacks even prior to Dobbs and 2022 saw a 20% increase in death threats, and a 229% increase in stalking incidents compared to 2021.[16]
Criminalizing, harassing, abusing, and physically harming health workers create downstream violations of the rights of the patients being served. Such laws, however, endanger the rights of health professionals themselves, including their right to work, right to life and health, the right to liberty and security, and to receive and impart information. In addition, such laws may promote moral distress, or moral injury, among clinicians, with adverse mental health consequences.[17]
Governments have an obligation to create an environment where clinicians can provide healthcare effectively and safely. Currently, legislators and other officials in some states that respect abortion rights have adopted or are contemplating measures to protect clinicians providing sexual and reproductive health care. Examples include “shield laws” that create protections for clinicians who provide, recommend, or assist others in obtaining abortion services from civil actions of another state; the enforcement of the Freedom of Access to Clinic Entrances Act (“FACE” ) which prohibits threats of force, obstruction and property damage intended to interfere with reproductive health care services; efforts to monitor the impact of abortion bans on the provision of reproductive health care and on health disparities; the implementation of legislative measures such as federal guidance on Emergency Medical Treatment and Active Labor Act (EMTALA) that is aimed to secure access to abortion in life-threatening situations even in states where abortion is banned, among others.[18] Yet, these protections are continually under attack, for example, EMTALA’s protection against prosecution under states laws will be reviewed by the Supreme Court in April 2024.
As efforts to impose restrictions on clinicians’ ability to provide evidence-based sexual and reproductive health care continue to expand, it is essential to advocate for greater protections for clinicians and patients at the federal level.[19] Additionally, and equally critical, the medical, public health, and human rights communities must work to end laws creating the current dual loyalty crisis.[20]
Ranit Mishori, MD, MHS, MSc, FAAFP is formerly PHR’s Senior Medical Advisor, and currently serves on PHR’s Advisory Council. She is an adjunct Professor of Family Medicine at Georgetown University Medical Center.
Payal K. Shah, JD, is the Director of PHR’s Program on Sexual Violence in Conflict Zones and a Fellow of the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto.
Karen Naimer, JD, LLM, MA serves as PHR’s Director of Programs.
Michele Heisler, MD, MPA, is PHR’s Medical Director and a Professor of Internal Medicine in the department of Internal Medicine and the department of Health Behavior and Health Equity, at the University of Michigan, Ann Arbor.
References
[1] Physicians for Human Rights, Legal Retrogression and the Harms of Louisiana’s Near Total Abortion Bans: A Report to the Human Rights Committee 139 Session (09 Oct 2023 – 03 Nov 2023), United States, https://phr.org/wp-content/uploads/2023/10/ICCPR-LA-FF-Shadow-Report_Final.pdf.
[2] The Center for Reproductive Rights, After Roe Fell: Abortion Laws by State, https://reproductiverights.org/maps/abortion-laws-by-state/.
[3] The Human Rights Campaign, Map: Attacks on Gender Affirming Care, https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map; “Doctors shocked and angry as Alabama ruling throws IVF care into turmoil,” The Guardian, (Feb 2023), https://www.theguardian.com/society/2024/feb/23/fertility-doctors-reaction-alabama-embryo-ruling.
[4] Physicians for Human Rights, No One Could Say: Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma, https://phr.org/our-work/resources/oklahoma-abortion-rights/; Physicians for Human Rights, Legal Retrogression and the Harms of Louisiana’s Near Total Abortion Bans: A Report to the Human Rights Committee 139 Session (09 Oct 2023 – 03 Nov 2023), United States: https://phr.org/wp-content/uploads/2023/10/ICCPR-LA-FF-Shadow-Report_Final.pdf.
[5] “Maternal care deserts overlap with lack of abortion access, analysis shows,” ABC News Available from: https://abcnews.go.com/Health/abortion-access-restrictions-affect-maternity-care-access-research/story?id=101770115; L. Sánchez, “Abortion Restrictions Force Medical Personnel To Commit Grave Ethical Violations”, Current Affairs, June 30, 2022, https://www.currentaffairs.org/2022/06/abortion-restrictions-force-medical-personnel-to-commit-ethical-violations
[6] Physicians for Human Rights. Dual Loyalty & Human Rights in Health Professional Practice: Proposed Guidelines & Institutional Mechanisms, Physicians for Human Rights (2002).
[7] Ibid.
[8] C. Mallory, M. G. Chin, and J. C. Lee, “Legal Penalties for Physicians Providing Gender-Affirming Care,” JAMA, 329(21):1821-1822 (2023) doi:1001/jama.2023.8232.
[9] UN Committee on OHCHR, Access to safe and legal abortion: Urgent call for United States to adhere to women’s rights convention, (2022) https://www.ohchr.org/en/statements/2022/07/access-safe-and-legal-abortion-urgent-call-united-states-adhere-womens-rights; The Office of the United Nations High Commissioner for Human Right, “Sexual and reproductive health and rights,” OHCHR: https://www.ohchr.org/en/node/3447/sexual-and-reproductive-health-and-rights.
[10] M. Suran, “Treating Cancer in Pregnant Patients After Roe v Wade Overturned,” JAMA Nov 1;328(17):1674–6 (2022); A. S. Wyckoff, AAP reaffirms gender-affirming care policy, authorizes systematic review of evidence to guide update, (2023), available from: https://publications.aap.org/aapnews/news/25340/AAP-reaffirms-gender-affirming-care-policy; B. Frederiksen, M. Rae, T. Roberts, and Kaiser Family Foundation (KFF), Abortion Bans May Limit Essential Medications for Women with Chronic Conditions, (2022), available from: https://www.kff.org/womens-health-policy/issue-brief/abortion-bans-may-limit-essential-medications-for-women-with-chronic-conditions/.
[11] WMA – The World Medical Association-WMA Declaration of Geneva. https://www.wma.net/policies-post/wma-declaration-of-geneva/
[12] Ibid.
[13] International Covenant on Civil and Political Rights, OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights; The Office of the United Nations High Commissioner for Human Rights, Committee on the Elimination of Discrimination against Women https://www.ohchr.org/en/treaty-bodies/cedaw; Committee on the Elimination of Racial Discrimination, https://www.ohchr.org/en/treaty-bodies/cerd; Center for Reproductive Rights, Reproductive Rights Violations as Torture and Cruel, Inhuman, or Degrading Treatment or Punishment: A Critical Human Rights Analysis. https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Reproductive_Rights_Violations_As_Torture.pdf
[14] See note 6.
[15] PHR See note 6, and OHCHR, see note 13.
[16] Rights Division, Recent Cases on Violence Against Reproductive Health Care Providers, September 17, 2021: https://www.justice.gov/crt/recent-cases-violence-against-reproductive-health-care-providers; National Abortion Federation, Violence Against Abortion Providers Continues to Rise Following Roe Reversal, New Report Finds, May 11, 2023: https://prochoice.org/violence-against-abortion-providers-continues-to-rise-following-roe-reversal-new-report-finds/.
[17] A. Desai, R. Holliday, M. Wallis, et al. “Policy Changes as a Context for Moral Injury Development in the Wake of Dobbs v Jackson Women’s Health Organization,” Obstetrics and Gynecology, Jan 1;141(1):15–21 (2023); E. L. Sabbath, S. M. McKetchnie, K. S. Arora, and M. Buchbinder, “US obstetrician-gynecologists’ perceived impacts of post-Dobbs v Jackson state abortion bans.”JAMA Netw Open. 2023. doi:10.1001/jamanetworkopen.2023.52109.
[18] D. S. Cohen, G. Donley, and R. Rebouché, “Abortion Shield Laws” NEJM Evidence. 2023;2(4) doi:1056/EVIDra2200280.
[19] Kaiser Family Foundation (KFF). Youth Access to Gender Affirming Care: The Federal and State Policy Landscape https://www.kff.org/other/issue-brief/youth-access-to-gender-affirming-care-the-federal-and-state-policy-landscape.
[20] K. Gilmore, V. Boydell, et al. “Defending frontline defenders of sexual and reproductive health rights: a call to action-oriented, human rights-based responses,” BMJ Global Health, 7(4):e008867 (2022), doi:1136/bmjgh-2022-008867.