Fox on Doctors Who Defy Abortion Laws

Dov Fox (University of San Diego: School of Law) has posted What Will Happen if Doctors Defy the Law to Provide Abortions? (New York Times (online), July 17, 2022) on SSRN. Here is the abstract:

 

Some doctors who identify as conscientious providers in post-Roe America may seek to provide abortions in violation of state laws, just as many did before Roe. A federal statute ought to protect clinician conscience in principled ways — not only for those who deny care, but also for those who deliver it. And if lawmakers won’t protect conscientious providers, then judges should. Courts can recognize a legal defense of medical disobedience that would significantly reduce the punitive sanctions that some states impose for supplying clinically reasonable services in the name of conscience. This partial defense should also waive possible collateral consequences of a felony conviction, such as license revocation and disenfranchisement. That mitigation would go a long way to repair the one-sided exemptions already entrenched across the United States.

The American legal regime that governs medical conscience is broken. While conscientious providers find virtually no refuge in the conscience clauses that are codified in almost every state, refusers are protected almost categorically. And just about all of these conscience laws are reserved for denials of care. Conscientious refusers are often shielded from being fired, disciplined, held liable, or found guilty for violating standards of care and endangering patients, even in serious ways. Conscientious refusers usually don’t have to tell patients about their options, or help them to access care elsewhere. But few protections exist for doctors who have equally conscientious reasons to provide abortions.

To be sure, there are crucial differences among the various services that conscientious providers might seek to supply. Some are safer or more effective than others. Some require costly facilities and staff, while others involve nothing more than a prescription pad. Some fall squarely within the medical norm, while others push its boundaries, or cross them. These particulars matter. But the moral commitment to treat patients can be just as sincere and noble as the values that move other doctors to turn patients away. Even more important: Conscientious providers honor patients’ wishes, while conscientious refusers override them.