By turning over decisions about abortion to the states, the U.S. Supreme Court created a situation where individual state legislatures, attorneys general, and even public referendums are responsible for deciding abortion policies.
Since the decision became public, both new and old laws banning or restricting abortion have come into play in many states. This is in addition to restrictive laws that were already on the books. As of early October, 13 states have total or near total bans on abortion. 2 These bans have varying qualifications, with some offering exceptions when the life of the mother is in danger or in the case of rape or incest, with others permitting no exceptions. 3 In addition to these bans, there are many other restrictions on abortion in other states, which include gestational limitations on abortion. 4
The state legislative landscape is quite fluid, with legislators in many states still working on legislation relating to abortion. Also, much is up in the air due to the mid-term elections. Control of Congress and state legislatures could change, resulting in further upheaval in this already volatile space.
For healthcare practitioners and MPL carriers, the insertion of different policies and politics into medical decision making has many implications. Health systems, hospitals, and MPL carriers who operate in multiple states must contend with differing laws and interpretations as to what women’s healthcare procedures can and can’t be performed and when.
In many cases, decisions that were formerly the province of women and their healthcare providers now involve Hospital Ethics Committees due to the intersection of the now heightened legal environment and medical standards of care. These committees must now grapple with what constitutes a life-threatening condition for a pregnant person, along with the particular abortion laws that govern each state.
The Role of Hospital Ethics Committees
The clinical ethics committee has been a staple of hospital-based medicine for decades. “Ethics committees, or similar institutional mechanisms, offer assistance in addressing ethical issues that arise in patient care and facilitate sound decision making that respects participants’ values, concerns, and interests,” according to the American Medical Association. 5
For most medium and large healthcare organizations, ethics committees are a critical part of the institutional hierarchy. The ethics committee will typically handle situations arising in patient care that require healthcare providers and their patients to navigate difficult situations that could compromise the patient, provider, or an institution’s health or moral, ethical, or legal standing. Ethics committees are generally composed of members from the hospital staff and the surrounding community, including physicians, nurses, former patients, and nonclinical staff. 6 The committee offers guidance and education to all those involved about risks and benefits of a certain course of action in patient care; the providers, patients, and loved ones are not compelled to follow the committee’s recommendations.
While most ethics committees fly under the public radar, there have been incidents that propelled this function into the news. In 1976, the case of Karen Ann Quinlan became a national news item when doctors refused to disconnect her life support without assurances that they and the family could not be sued by county prosecutors. 7 After accidentally overdosing on a near-lethal combination of alcohol and drugs, Quinlan became legally brain dead and was only initially able to survive using a feeding tube and ventilator.
With no chance of recovering to what her family believed would be a sufficient quality of life to justify the pain of long-term ventilation, they requested she be removed from artificial life support, which would likely cause her death. 8 After a successful suit from the family and providers, management of care was handed over to a court-mandated ethics committee. This was controversial at the time, because ethics committees were not common. 9 In fact, this case led to the establishment of widespread use of ethics committees at hospitals. because there were no widely used and well understood mechanisms for dealing with cases like this.
Impact of Dobbs on Ethics Committees
For healthcare organizations in states unaffected by Dobbs, ethics committees will see little impact from this change. However, for organizations, providers, and MPL carriers in states affected by the bans, ethics committees are being drawn into decisions as to what represents life-threatening complications and at what point that occurs.10 It’s likely that these scenarios will persist, as it’s been estimated that one in three American women between the ages of 15 to 44 have lost access to abortion. 11
These laws have led many organizations to insert their ethics committees into pregnancy care decisions.12 Providers have reported situations in which they needed signoffs from an ethics committee before they could perform an abortion that they believed was medically necessary and in line with existing laws. 13
When considering whether this is appropriate or necessary, it’s useful to examine the goals and functions of a hospital ethics committee. Objectives of a hospital ethics committee include: 14,15
- Promoting the rights of patients
- Promoting shared decision making between patients (and patient surrogates if a patient is incapacitated) and their healthcare providers
- Offering consultations to providers, patients, and families regarding significant treatment decisions
- Providing education to the healthcare community on ethical issues
When considering abortion in states where the procedure is banned or severely restricted, hospital ethics committees are clearly obligated to promote the rights of the patient. In this case, when a provider believes an abortion is necessary based on a life-threatening condition, the obligation of the committee to promote the right of the patient to obtain a necessary medical procedure and promote shared decision making seems clear. Even the obligation to offer consultations seems like it would result in favor of what the treating clinician deems as a necessary medical procedure.
Regardless of hospital ethics committee best practices, these committees are and will inevitably end up involved in recommending a course of action in states where the vaguely worded laws leave room for interpretation. From a legal standpoint, institutions and individual providers may face criminal prosecution. In this situation, it may very well make sense to provide as much justification and cover for these decisions as possible. No organization wants to see its providers prosecuted.
From a purely medical standpoint, many would argue that whether an abortion is medically necessary can be determined by guidelines and best practices of the professional organizations of abortion providers. From this point of view, it can be argued that hospital ethics committees should not be involved with the vast majority of abortions because in most cases there are no ethical considerations.
A Rapidly Shifting Landscape
Developments on the state level continue to evolve quickly. They will no doubt clarify over time, but until then, hospital ethics committees will likely be asked to continue to weigh in on these decisions.
References
1 “Dobbs, State Health Officer of the Mississippi Department of Health Et AL. v. Jackson Women’s Health Organization ET AL.,” Supreme Court of the United States, June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
2 Factbox: U.S. abortion restrictions mount after overturn of Roe vs. Wade,” Reuters.com, Oct. 4, 2022, https://www.reuters.com/business/healthcare-pharmaceuticals/us-abortion-restrictions-mount-after-overturn-roe-v-wade-2022-10-04/
3 “An Overview of Abortion Laws,” The Guttmacher Institute, Oct. 6, 2022, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws
4 “An Overview of Abortion Laws,” The Guttmacher Institute, Oct. 6, 2022, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws
5 “Ethics Committees in Health Care institutions,” American Medical Association, https://www.ama-assn.org/delivering-care/ethics/ethics-committees-health-care-institutions
6 “Ethics Committees and Consultation,” Department of Bioethics and Humanities, University of Washington Medicine, https://depts.washington.edu/bhdept/ethics-medicine/bioethics-topics/detail/64
7 “From Quinlan to Schiavo: medical, ethical, and legal issues in severe brain injury,” Baylor University Mdical Center Proceedings, October 2005, https://www. ncbi.nlm.nih.gov/pmc/articles/PMC1255938/
8 “From Quinlan to Schiavo: medical, ethical, and legal issues in severe brain injury,” Baylor University Mdical Center Proceedings, October 2005, https://www. ncbi.nlm.nih.gov/pmc/articles/PMC1255938/
9 “Quinlan Case Stirs Debate on Ethics,” The New York Times, June 27, 1976, https://www.nytimes.com/1976/06/27/archives/quinlan-case-stirs-debate-on-ethics-quinlan-case-causes-uncertainty.html
10 “Defining ‘life-threatening’ can be tricky in abortion law exceptions,” Axios, June 28, 2022, https://www.axios.com/2022/06/28/abortion-ban-exceptions-womenmedical-emergencies
11 “1 in 3 American women have already lost abortion access. More restrictive laws are coming,” The Washington Post, Aug. 22, 2022, https://www.washingtonpost.com/ nation/2022/08/22/more-trigger-bans-loom-1-3-women-lose-most-abortionaccess-post-roe/
12 “’Is an abortion medically necessary?’ is not a question for ethicists to answer,” Statnews.com, Aug. 15, 2022, https://www.statnews.com/2022/08/15/deciding-abortion-medically-necessary-isnt-ethics-question/
13 “’Is an abortion medically necessary?’ is not a question for ethicists to answer,” Statnews.com, Aug. 15, 2022, https://www.statnews.com/2022/08/15/deciding-abortion-medically-necessary-isnt-ethics-question/
14 “Ethics Committees and Consultation,” Department of Bioethics and Humanities, University of Washington Medicine, https://depts.washington.edu/ bhdept/ethics-medicine/bioethics-topics/detail/64
15 “Hospital Ethics Committees – Preliminary Comments,” Institute of Clinical Bioethics, Oct. 1, 2014, https://sites.sju.edu/icb/hospital-ethics-committees-preliminary-comments/