Lithwick: Doctors Face New Abortion Rules

What does it tell us about the state of the abortion wars, that battles once waged over the dignity and autonomy of pregnant women have morphed into disputes over the dignity and autonomy of their health-care providers? Two of the most pitched battles over reproductive rights in America today turn on whether health workers can be forced to provide medical services or information to which they ethically object. But as we learn from these fights, our solicitude for the beliefs of medical workers is selective: abortion opponents will soon enjoy broader legal protections than ever. Those willing to provide abortions, on the other hand, will enjoy far fewer. And women seeking reproductive services will be more caught up than ever in the tangle between the two.

The first dispute concerns a new rule purporting to protect the "right of conscience" of American health-care workers. Under a new midnight regulation crammed through by the Bush Department of Health and Human Services and poised to become law any day now, any health-care worker may refuse to perform procedures, offer advice or dispense prescriptions, if doing so would offend their "religious beliefs or moral convictions." Congress has protected the right of physicians to opt out of providing abortions for decades. This new rule, which President-elect Obama can overturn (although it may take months), is far broader. It allows one's access to birth control, emergency contraception and even artificial insemination to turn on the moral preferences of a pharmacist, nurse or ambulance driver.

The second dispute involves a South Dakota law that went into effect last summer after an appeals court lifted a preliminary injunction. The law requires physicians providing abortions to read from a state-mandated script advising the patient that she is about to "terminate the life of a whole, separate, unique, living human being" with whom she has an "existing relationship." The doctor must have her patient sign each page of a form indicating that she has been warned of the "statistically significant" risks of the procedure, including "increased risk of suicide ideation and suicide." These "risks" are almost completely unsupported by the scientific literature. A new comprehensive study released by Johns Hopkins found "no significant differences in long-term mental health between women in the United States who choose to terminate a pregnancy and those who do not." The disparity between the empirical data and the mandatory script thus forces physicians into a Hobson's choice between providing patients with accurate medical information, and possible license suspension and misdemeanor charges.

Reading the new HHS regulations together with the mandatory South Dakota "script," one can only conclude that those same health providers who cannot be compelled to perform an abortion may nevertheless be compelled to deliver misinformation about it. The freedom and autonomy of doctors who oppose abortion are protected by law. But those willing to provide abortions can be forced to deliver a state message with which they completely disagree. Both the HHS's right-of-conscience rules and the South Dakota script purport to clarify the complex legal relationship between health provider and patient, but each instead confuses and obfuscates settled law. The HHS rule, as written, is so ambiguous that nobody can say for certain which health-care workers or medical procedures are covered, beyond establishing that both categories are broadly expanded beyond those protected by existing right-of-conscience laws. The rule even fails to define abortion, leaving open the possibility that anyone who thinks birth control is abortion may decline to dispense it, turning every visit to the ER or the pharmacy into a spin of the constitutional roulette wheel.

A recent article in the New England Journal of Medicine similarly blasts the South Dakota script for introducing novel and confusing legal language about "human beings," "constitutional rights" and "relationships" into a medical conversation between doctor and patient, concluding that these words are there "to intimidate pregnant women with vaguely described and legal-sounding consequences."

Almost completely missing from this fascinating legislative discussion of what health workers might be forced to do and say with respect to reproductive rights are the reproductive rights themselves. Whether we like it or not, the right to birth control, emergency contraception and—under most circumstances—abortion is still constitutionally protected. But these are not services a woman can provide for herself, which leaves her with few rights at all when her doctors are empowered by law to misinform her, withhold advice or deny services altogether. Even beyond the problem of subordinating a woman's rights to her doctor, however, there looms a larger question for health-care workers themselves: if they are indeed seeing their rights and freedoms either hugely expanded or severely restricted based solely on which side they've chosen in the culture wars, they might properly wonder whether any of them are truly free at all.