HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, March 20, 2008

OB/GYN Ethics Rule Upset HHS

Late last year, the American College of Obstetricians and Gynecologists (ACOG) issued new ethics guidelines. Among other things, the new guidelines provide that physicians "have the duty to refer patients in a timely manner to other providers if they do not feel they can in conscience provide the standard reproductive services that patients request."

National Public Radio's Morning Edition reported today and yesterday on the involvement of HHS and HHS's assertion that such guidelines may violate federal "conscience" laws.  In a letter to the American Board of Obstetrics and Gynecology (ABOG), Health and Human Services Secretary Michael Leavitt stated that ob/gyns who have moral objections to abortion should have no obligation to refer patients.  NPR interviewed several individuals about the controversy and Julie Rovner stated in her report yesterday the potential consequences from the failure to refer for both women and physicians,

Ob/Gyn Wendy Chavkin of Columbia University welcomes the new AGOG ethics statement. She's the immediate past chairwoman of Physicians for Reproductive Choice and Health.  "It says that if a physician has a personal belief that deviates from evidence-based standards of care they have to tell the patient that, and that they do have a duty to refer patients in a timely fashion if they do not feel comfortable providing a given service," Chavkin says.

She says it isn't just about abortion, but also about things like emergency contraception — high doses of regular birth control pills that can prevent pregnancy in most cases if taken within 72 hours. She points to a scenario in which a woman has been raped and shows up at the only health care facility in her area.  "And she comes upon some doctor who thinks that emergency contraception is the equivalent of abortion, which is incorrect, but nonetheless what this individual believes," Chavin says. "What this ACOG statement is saying is she should not be deprived of something that's needed right away to take care of her emergency situation."

But doctors who object to providing certain types of care — particularly abortion — also object to referring patients.  "I'm not going to refer someone to a hit man to put to death someone that's inconvenient in their life," says Joseph DeCook, a retired Ob/Gyn from Holland, Mich., and vice-president of the American Association of Pro-life Obstetricians and Gynecologists. "I wouldn't do that. This is the very same thing. I'm not going to refer a pregnant woman to a physician who will purposefully terminate her pregnancy — better known as purposefully kill the unborn child. I'm just not going to do it." . . . .

But it's not entirely clear that board certification would — or even could — be stripped from doctors who don't want to make abortion referrals. Officials from the certifying board weren't available for comment.  But Greg Phillips, a spokesman for ACOG, says that the November ethics opinion was just that — an opinion. He says it's not a formal part of group's code of ethics that board certified Ob/Gyns must obey.

The updated story by Ms. Rover provides a statement from Dr. Norman Gant, executive director of the certifying board, who claims that "HHS got it all wrong."

Gant, who didn't respond sooner because he was out of the office, backed up what ACOG spokesman Gregory Phillips said Tuesday, which is that the ethics committee opinion regarding referrals is not a binding portion of the college's ethics code, and therefore not a factor in the decision about board certification.

"We do not restrict access to our exams for anyone applying for initial certification, or maintenance of certification, based on whether they do or do not perform an abortion," Gant said. "We do not base this upon whether they do or do not refer patients to an abortion provider if they do not choose to do abortions."

Gant said he dictated a letter back to Leavitt to that effect Wednesday. He added that the board has long respected the fact that its members disagree on the abortion issue — more than a decade ago it removed abortion from the list of cases to be used in oral exams.  On the other hand, Gant, himself an Ob/Gyn, said he personally had no problem with the November ethics statement, particularly the idea that Ob/Gyns should be ethically bound to provide contraception.

So, all and all, this looks like a good use of HHS's time. . . . .

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