HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Sunday, November 15, 2020

Legislative Alert: The Ban on Unauthorized Pelvic Exams

Phoebe Friesen (City University of New York), Roshni Persaud (Hofstra University), Robin Fretwell Wilson (University of Illinois), Legislative Alert: The Ban on Unauthorized Pelvic Exams, NYSBA 25(1) Health Law J. (2020)

The performance of pelvic examinations on women who are under anesthesia for gynecological surgery has long been a standard educational practice in many teaching hospitals in the United States and other countries. Recently, however, widespread media attention has alerted the U.S. public that many female patients are not aware of these practices and do not always provide specific consent for these intrusive educational exams. Consequently, the public outcry demanding justice and transparency with respect to these situations proved formidable and inspired efforts on the part of both advocates and academics. Twenty-two bills seeking to ban unauthorized pelvic examinations have been put forth in 17 states since January 2019, and four have already become law by October 2019. Before this present controversy, California, Hawaii, Illinois, Iowa, Oregon, and Virginia had already enacted legislation requiring consent for pelvic exams of women who are unconscious or under anesthesia. Bills in Utah, Maryland, Delaware, and New York have also recently become law, and many more are working their way through the legislative process. More research is warranted in an effort to understand the frequency and prevalence of unauthorized pelvic exams on women who are unconscious and under anesthesia. Further legal action is also required in order to ensure that women are no longer being subjected to educational pelvic examinations without their consent while unconscious or under anesthesia. It is clear that most women do not expect such exams to take place and do not wish for them to take place without their specific consent. In order to respect their autonomy and bodily rights, and to retain trust in the system of health care, specific consent should be obtained. Requiring such consent will not jeopardize medical education. The solution is simple: obtain specific consent unless an emergency, or other compelling circumstances dictate otherwise. As a matter of public policy, the authors urge other states that remain silent on this issue to investigate the matter and implement legislation that will protect patient autonomy and dignity. In this paper, the authors explore what is known about unauthorized pelvic examinations practice, responses to it locally and abroad, and the ethical violations it involves. They then examine the legislation recently signed into law in New York, highlight aspects emerging as core protections in the laws recently enacted and proposed, and examine important differences emerging in New York

https://lawprofessors.typepad.com/healthlawprof_blog/2020/11/legislative-alert-the-ban-on-unauthorized-pelvic-exams.html

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