Tennessee's no-exceptions abortion law defies medical ethics | Opinion
Tennessee's abortion law is the strictest in America and provides for absolutely no exceptions. By excluding any exception to save the life of the mother, the new law clearly violates the four basic and sacred medical ethical principles: beneficence – doing good; non-maleficence – refraining from doing harm; autonomy – the right of the patient to determine their medical treatment; and justice – the equal distribution of the benefits of medical care.
This is an incredible dilemma for doctors and patients, and one that will cause tremendous harm to the health of Tennessee women, as well as put doctors at significant risk for criminal indictment. Physicians will no longer be able to consider what is best for their patients to achieve healthy outcomes; they will be unable to refrain from doing harm by inaction and delayed necessary treatment; patients will no longer have a say in their treatment and, since some states in this country have not outlawed abortions, this will clearly be a violation of the medical ethical principle of justice.
Before Roe v. Wade was overturned, opponents of abortion argued that society and the medical profession needed to take into consideration the fact that there were two lives, not just one, involved in the consideration of abortion. The new Tennessee abortion law still considers only one life; this time, however, it is that of the fetus, not the mother. The new Tennessee abortion law clearly makes that point. “Abortion means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.”
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There are many problems with this new law. For example, when confronting a situation in which the fetus has a condition that is lethal and there is no chance for survival, doctors must not intervene, and the patient is forced to carry the pregnancy with all its possible complications to term. Based on the state’s inadequate and harmful definition of abortion, the treatment of a growing ectopic pregnancy, miscarriage, premature rupture of the membranes or a host of serious medical conditions are considered abortion care, and provider hesitancy to act swiftly could result in significant maternal morbidity and even maternal death. The law does not tell physicians how close to death a patient must be for them to offer an abortion in an attempt to save a mother's life, and if a doctor gets that wrong and errs on the side of compassion and evidence-based medical care, the doctor may be charged with a criminal offense that costs them their medical license, bankrupts their family and possibly results in a jury trial and imprisonment.
Tennessee obstetricians and gynecologists are already considering leaving Tennessee because of this new law, and new specialists in reproductive health care are hesitant to work in Tennessee. In addition, the organizers of many medical events such as conventions, seminars and conferences are considering holding them in other states rather than risk pregnant patient participants being in Tennessee, even for a short interval of time, lest they develop a problem during their stay in our state. Companies considering locating in Tennessee are suddenly looking elsewhere, potentially costing our state precious tax dollars that could go to help fund education and improvements in child and maternal health.
Lawyers are claiming that the process of “affirmative defense” will help prevent physicians from being indicted for committing a felony due to performance of an abortion to treat a pregnant patient who is suffering from significant complications. “Affirmative defense is a defense in which the defendant (physician) introduces evidence which, if found to be credible, will negate criminal or civil liability; even if it is proven that the defendant committed the alleged acts.” The words “if found credible” put the responsibility of deciding whether to indict in the hands of prosecutors who may for a variety of reasons disagree with the treatment. Our physicians should be able to provide what they believe is necessary, life-preserving care without concern that a prosecutor or non-medical individuals serving on a jury might disagree.
This law puts each physician who performs an abortion to reduce the risk of a serious medical complication or to save the life of the mother at risk of criminal liability. This is a clear violation of the ethical principle of doing good and refraining from doing harm. The dilemma of physicians having to choose between violating medical ethical principles and violating the law is profound.
Something needs to be done to correct this injustice to Tennessee women of reproductive age, as well as the risks it places on physicians taking care of pregnant patients.
It is time for legislators to consult with the many physician experts in the state and produce legislation that allows for a process that considers the health and life of pregnant patients and avoids involving physicians in potential criminal activities. Our law needs exceptions, not just the opportunity for affirmative defense. Then and only then will the timeless and sacred medical ethical principles of the Hippocratic Oath, written in the 5th century B.C., be upheld.
Dr. Frank H. Boehm is professor emeritus in the Department of Obstetrics and Gynecology at Vanderbilt University Medical Center. He may be reached at [email protected].