Days after Texas banned most abortions after about six weeks of pregnancy in September 2021, Dr. Alan Braid disclosed that he had “provided an abortion to a woman, who though still in her first trimester, was beyond the state’s new limit.” Dr. Braid wrote in a Washington Post opinion piece that when he was a medical resident before Roe v. Wade, he had seen “teenagers die from illegal abortions. One I will never forget. When she came into the ER, her vaginal cavity was packed with rags. She died a few days later from massive organ failure, caused by a septic infection.” Dr. Braid resolved, “I can’t just sit back and watch us return to 1972.”
Since Dobbs v. Jackson Women’s Health Organization overruled Roe, many clinicians around the country will be risking their careers and freedom if they provide abortion care. Seventeen states have enacted near-total bans on abortion, or they’re trying to. Many of these bans allow almost no exceptions, including for rape or a woman’s health. Now providers who illegally terminate a pregnancy face punishments that range from a suspension on practicing medicine to a $100,000 fine to a life sentence in prison.
Michigan’s chief medical executive, Natasha Bagdasarian, has written that these laws force doctors to choose between breaking the law and “breaking the oath we have taken on behalf of our patients.” A Missouri obstetrician-gynecologist, David Eisenberg, said on “The Daily” podcast before Roe fell that his professional commitment to make abortion care available to patients in need is “a part of my moral and religious worldview.” He added, “I am a conscientious provider.”
Though Dr. Eisenberg did not say he would break any laws, 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.
Yet all too often, only the consciences of refusers count in the eyes of the law. This asymmetry drives desperate patients underground and selectively burdens conscientious providers. It’s true that accommodating conscientious providers would undermine the government’s considered judgment that people shouldn’t have access to the health care the government has prohibited. But on particularly fraught questions — about life and death, impairment and identity — freedom of conscience in medicine can sometimes be important enough to shore up deserving appeals. This can be true even at the expense of other state interests, so long as accommodations are constrained by whatever harms they inflict on other people.
One reason to protect conscience in medicine is to preserve the moral integrity of clinicians who claim it. This applies to conscientious providers, too. Forcing doctors and nurses to stand by and do nothing to help patients in need flies in the face of clinicians’ fundamental charge to heal, promote health and relieve suffering. Also, openness to conscientious dissent, within limits, lets a pluralistic society adapt to moral change from the inside.
Congress or the courts should recognize a partial defense of medical disobedience. This defense shouldn’t be available to every clinician who invokes conscience to provide prohibited care. In the related context of religion, the Supreme Court has adopted a know-it-when-I-see-it test for whether someone’s putative beliefs qualify as genuine and morally weighty. That test would exclude “an asserted claim so bizarre,” odious or self-interested “as not to be entitled to protection.”
And doctors would have to show more than that they acted out of deeply held convictions. The care that they conscientiously provide must also be medically indicated and come with the informed consent of a patient or an appropriate surrogate. So a mercy killing of someone who had been pressured to exercise the option wouldn’t qualify. Nor would any intervention whose benefits haven’t been proven worth the risks through peer-reviewed studies or clinical practice. The requirement that care be clinically reasonable would rule out conscience claims to undertake the discredited conversion therapy that at least 20 states prohibit to try to turn gay kids straight. Other cases are closer calls. Bans on puberty blockers are passed or pending in some states to affirm a minor’s gender identity, though the evidence is still out about long-term risks to fertility and bone density.
America’s culture wars leave many people convinced that conscience has come to represent little more than a card that defeated camps play when they have nothing else to lose. But it can be more than that. States vigorously safeguard the consciences of refusers. Congress and the courts ought to protect the consciences of providers, too. It has been over a century since judges flexed their common-law authority to introduce any major category of mitigation. Dobbs gives reason to recover that muscle memory and recognize a limited defense of medical disobedience.
Dov Fox is a professor of law at the University of San Diego School of Law and director of its Center for Health Law Policy and Bioethics. He is the author of “Medical Disobedience” and “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law” as well as the host of the podcast “Donor 9623. This article originally appeared in The New York Times.