“In some cases, the law mandates ethically unacceptable conduct. When doctors believe a law violates ethical values or is unfair, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should prevail over legal obligations.
American Medical Association (AMA) Code of Medical Ethics
What should healthcare professionals do when they are required by law to harm a patient? This question has become urgent as doctors grapple with the implications of state laws banning abortion. When these laws directly and immediately threaten the health of patients, should physicians collectively disobey them, that is, should they engage in professional civil disobedience?
Mississippi law at issue in recent Supreme Court case Dobbs v. Jackson Women’s Health Organization called elective abortions performed after 15 weeks gestation “demeaning to the medical profession.” The majority of justices agreed, saying state law prohibiting such abortions would preserve “the integrity of the medical profession.” Yet major US medical groups have since argued that was the Court’s decision in Dobbs it demeans and threatens the integrity of the profession, since laws prohibiting abortion can force doctors to choose between harming patients and breaking the law.
WADA called Dobbs “a blatant acceptance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to reproductive health services based on proofs.” The American Academy of Family Physicians wrote that the decision “negatively impacts our practices and our patients by undermining the patient-physician relationship and potentially criminalizing evidence-based medical care.” The American College of Physicians said, “A patient’s decision whether or not to pursue a pregnancy should be a private decision made in consultation with a physician or other health care professional, without government interference. And the CEO of the American College of Obstetricians and Gynecologists called Dobbs “tragic” for patients, “the boldest act of legislative interference we’ve seen in this country” and “an affront to everything that drew me and my colleagues to medicine.”
Medical organizations are rarely so united. Yet even many doctors who oppose abortion recognize that medically nuanced decisions are best left in the hands of individual patients and their doctors — not state lawmakers. Abortion bans are already causing doctors in some states to wait until patients become seriously ill before intervening in cases of ectopic pregnancy or septic miscarriage, among other issues.1
Beyond making strong statements, what actions should medical organizations take in the face of laws that threaten patient well-being? Should they support the creation of committees to decide whether a pregnant person’s life is in sufficient danger to justify an abortion? Should they advocate to allow patients to travel elsewhere for treatment? Or should they encourage their members to provide evidence-based medical care, even if that means accepting – en masse – fines, license suspensions and possible jail time? How long could a dangerous state law survive if the medical profession as a whole refused to be bullied into harming patients, even if such a refusal meant many doctors could go to jail?
There are several arguments in favor of professional associations supporting the civil disobedience of their members. First, collective civil disobedience by a professional group would avoid the most common and powerful criticism made of civil disobedience, namely that it could lead to anarchy.
Civil disobedience is a “public, non-violent, conscious but political act contrary to the law”, performed for the purpose of changing an unjust law.2 But respect for the law is necessary to maintain a civil society. Having each person choose which laws to obey and which to disobey is a recipe for chaos. The best-known proponents of civil disobedience—Henry David Thoreau, Mahatma Gandhi, Martin Luther King, Jr.—all took seriously the threat of rampant disregard for the law under the guise of civil disobedience. In his 1963 Letter from Birmingham Jail, King argued that people should obey just laws, but he also wrote, “law and order exist for the purpose of establishing justice”, and he agreed with St Augustine that “a unjust law is no law at all”. He described a “moral responsibility to disobey unjust laws” and set out criteria to help people decide when laws, such as those that maintain racial segregation, are unjust enough to warrant open disobedience. Gandhi was even more worried about the chaos and went on hunger strikes to rein in his own followers when he felt they had gone too far in their disobedience to the laws.
But professional civil disobedience poses little threat of anarchy. Unlike a situation in which everyone decides to obey or disobey a law, the fact that a professional group decides together, after a frank and rational debate, to support the disobedience of an unjust law could ultimately strengthen social cohesion. , raise confidence in the profession and help communities avoid tragic mistakes. Professions, after all, are meant to protect vulnerable people and fundamental social values.3 Such a move, however, would still be controversial. Civil disobedience is non-violent, but it elevates and highlights conflict and often leads to violence against people who disobey the law.4 Professional civil disobedience would undoubtedly require enormous courage.
To propose professional civil disobedience to state laws prohibiting abortion may seem naïve. Historically, physicians have rarely been radical, and most have complied with bad, even horrible, laws and policies – such as those authorizing forced sterilization programs in the United States and Nazi Germany, the use of mental hospitals like political prisons in the Soviet Union. , and police brutality under apartheid South Africa.
We will never know what might have happened if Soviet psychiatrists had collectively refused to participate in placing political prisoners in mental institutions, or if doctors in apartheid South Africa had refused to file false reports. on prisoners injured or murdered by the police. But when a society takes a wrong turn and medical professionals follow suit, distrust of medicine grows and either social change must be driven by other groups or society fails.
Additional arguments for professional associations officially supporting members who disobey unjust abortion laws include the claim that professional “conscience” protections should apply equally to physicians who refuse to participate in abortions and those who are compelled by conscience to provide abortion care.5 Providing care that directly protects patient health is also the surest way to limit the harm to patients caused by these laws; there may be harm to future patients if multiple physicians have their licenses revoked or are imprisoned for civil disobedience, but the needs of hypothetical future patients should not outweigh the needs of real patients facing danger today . Finally, professionally sanctioned, open, and large-scale acts of civil disobedience may ultimately be less risky for physicians than strategies involving professional groups trying to help members circumvent unethical laws. or individual physicians surreptitiously acting against a law or taking a stand on their own.
Thoughtful debate about whether and how to embark on the path of professional civil disobedience will take time and commitment. Physicians will need to make specific proposals to their professional associations on ways to help members who disobey unjust laws, including providing them with legal, financial and social support. But I believe the time has come to start these conversations. Professional civil disobedience is perhaps what is needed to mend the moral fabric of our country and the integrity of our profession, which have been so clumsily severed by the Supreme Court.