In fashioning the plethora of laws triggered by a post-Roe legal regime, most states have sought to carve out some sort of safe haven for the outlier medical conditions, whether ectopic pregnancy, fetal death or any other tragic circumstance arising during pregnancy. Some, mind you, are so dogmatic that they leave no room to move, and there’s little to say about such puny minds.
But for those that take comfort in what they argue are their exceptions, their safety valves, as if to prove they aren’t the heartless religious zealots they’re accused of being. “Look at what our law says. See?” Except that wasn’t how law worked before and it isn’t how law works now, when it’s applied to an invariably shifting set of facts that requires a high level of education, experience, specialized knowledge and discretion.
People will disagree about the best course of medical action, and under these laws, that means a physician can just as easily be arrested, prosecuted and convicted, as applauded as the doc who saved a life. And that creates an untenable situation.
The inability of criminal law to regulate medicine safely is visible in how people in pain or with suspected addiction are treated. I’ve written previously about suicides by chronic pain patients who were cut off from opioid medications that had helped them, in part because of doctors’ fears of legal consequences. Research now shows that for this group, cutting prescriptions dramatically increases risk of overdose and mental health crisis, compared to staying the course. But since physicians remain scared, the cutbacks continue.
Criminalization simply doesn’t allow for nuances that are part and parcel of medicine, such as the fact that some people need large doses of opioids because the enzymes that metabolize drugs vary widely due to genetics and other factors. Even in terminal cancer care — where few if any deny the need for opioids — doses fell by 38 percent between 2007 and 2017, as legal pressure to “do something” about rising overdose deaths grew.
Every time the government’s stuck its nose into medicine, something bad happened. Maybe something good, too, but also bad. Should medical discretion be exercised by politicians who couldn’t pass a sixth grade civics quiz or physicians? Yes, that’s a trick question as physicians are making themselves increasing indistinguishable from politicians as they stray from their focus on science into social justice. And yet, I would still choose a surgeon to remove a brain tumor than a senator.
But there’s a catch. It began when we stopped trusting patients, and has not reached the point where we stopped trusting doctors.
And criminalization invites suspicion, framing patients as liars. Health care providers, often unconsciously, can become contemptuous of those whose cases may bring legal scrutiny, corroding care. In 2017, for example, artist Quána Madison says an E.R. nurse called the police to remove her from the hospital and claimed that she was seeking drugs. Ms. Madison has chronic pain from complications of major surgeries required to reduce the cancer risk from a genetic syndrome. “As a Black woman, I know to never say ‘I’m seeking pain relief’ and to focus on the issue because I’m not taken seriously otherwise,” she said, describing how she believes it was only the presence of her white boyfriend that allowed her to avoid being jailed.
The issue of the moment is, of course, the myriad collateral medical issues surrounding the legal prohibition of abortion. But it’s not merely holding that there is no constitutional right to abortion, or even that abortion is prohibited, whether conditionally or under all circumstances. It’s that any physician performing a medical procedure that involves the termination or removal of a fetus, whether you want to call it a “clump of cells” or a baby, a living being from the moment of fertilization forward, may or may not be a criminal, subject to prosecution and a great many years in prison, should someone either without any qualifications or whose ideological bias overwhelms whatever qualifications they possess, disagree with their exercise of medical discretion.
But isn’t the solution obvious? Trust the doctors to comply with the law?
Of course, there have always been a few who can’t be trusted. There were pill mills distributing opioids to addicts for quick money, docs who faked medical reports of injuries for lawsuits, and clinics that would bill medicaid up the wazoo for treatments never rendered. Docs were not above dishonesty. And yet, it was rare, and when sufficiently extreme and provable, they got pinched.
But would ob-gyns lies about the reasons they were performing D&Es, claiming the fetus was non-viable to circumvent the law or the mother’s life was at risk (immediate? A decade later? Who knows when laws are poorly written, but I digress). There’s a very real fear that physicians who perform abortions can’t be trusted to limit themselves to the instances permitted by law, and will use the exceptions as cover.
It’s not hard to imagine, in the wake of Roe’s demise, similar or worse happening to women who seek medical help for pregnancy complications and are suspected of having illegal abortions. Already women say the laws in their state are preventing them from receiving the care they need, including for miscarriages.
It takes a long time, a lot of work and a great deal of money to become a medical doctor. Most would not risk their profession, and a lengthy prison vacation, for fear that a legitimate life-saving medical procedure will catch the interest of some yahoo prosecutor who can sell a crime to yokel jurors. And as anyone in this business knows all too well, it’s hardly unlikely to happen. Laws are bludgeons, whereas docs use scalpels. It may be entirely true that some are untrustworthy activists atop being physicians, and that they will do whatever they can to circumvent the law as an act of fealty to their cause. just as others are criminalizing a decision that most Americans believe must be safe, legal and rare.
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