Experts estimate that a ban on abortion will lead to 140 deaths/year among pregnant women in the United States. Obstetricians will have to make tough decisions about whether to follow these laws and watch their patients die or violate the laws and risk ending up in jail.
I thought of these grim statistics last weekend as I celebrated my daughter’s graduation from her Ob-Gyn residency. It was a particularly moving graduation. My daughter and her wonderful colleagues risked their lives caring for pregnant women throughout the pandemic. Now, as they move on from residency to clinical practice or fellowship training, they may not be legally permitted to save the lives of women with ectopic pregnancies or impending miscarriages. Many anti-abortion laws will prohibit, or at least create questions about the legality of, practices that are standard obstetrical care.
In many states, doctors will only be permitted to terminate a pregnancy to save the life of the mother. But phrases like “life-threatening” or “terminal illness” are always probabilistic estimates. It is difficult to predict whether or when a patient is going to die.
Since Roe v. Wade, decisions about terminating pregnancies in the first or second trimester have been protected by the constitutional right to privacy. Doctors and their patients were free to make decisions consistent with their own values. Privacy rights were not absolute. The state’s interest in fetal life increased after the fetus was mature enough to survive outside the womb. The borderline of viability is slowly shifting. But the right to practice by the dictates of one’s conscience is not.
The freedoms guaranteed by Roe v. Wade allowed choices based on conscience. Many doctors refused to participate in abortions. Some argued that such doctors should lose their license and not be permitted to practice medicine. We disagreed. We advocated for rigorous protection of doctors’ right to practice in ways that were consistent with their conscientious beliefs, as long as they clearly informed patients about those beliefs.
Today, protections of conscientious practice are more important than ever. A doctor whose conscientiously held beliefs lead to the conviction that it is essential to prioritize the life and health of the pregnant woman over the life of the fetus must be permitted to practice according to those conscientious beliefs. Such beliefs are protected by the same statutes that protect doctors who refuse to participate in abortions. The law cannot favor one religion over others.
Still, obstetricians will have to decide when the demands of conscience require civil disobedience. When a woman has an ectopic pregnancy or is having a miscarriage, the doctor will have to decide whether to follow professional standards and save her life. If they do, they could land in jail. If they do not, thousands of women per year could die. In most cases, their fetuses will die, too.
How many deaths will it take till we know that too many people have died?