Philosopher Dan Brudney explored the implications the simple statement that pregnancy is not a disease. The paper is particularly relevant because similar arguments crop up in the current controversy about abortion pills. Brudney was fighting in a different skirmish in the culture wars, but that makes his arguments all the more relevant. Before Dobbs, back when abortion and contraception were constitutionally-protected rights, some health professionals claimed that they had no obligation to provide them and could not be fired or de-licensed for their refusal because, after all, pregnancy was not a disease so preventing it or interrupting it was not within the proper scope of medicine. Brudney writes that, “This argument rests on the premise that the scope of the very concepts of medicine and disease circumscribes the scope of proper medical practice.” He calls out the purpose of this argumentative move as an attempt to sidestep culture war ideologies that focus on the moral status of the fetus and, instead, to make a “non-sectarian” claim about the permissible scope of conscientious refusals. Health professionals cannot conscientiously refuse activities that are within their scope of practice. A Jehovah’s Witness could not work in an emergency room and refuse to give blood transfusions. But if the whole realm of reproductive health care is not medicine, well, then, the argument goes, it is not something that can be required of health professionals as part of their job descriptions. The argument is relevant to the current legal controversy about abortion pills because the plaintiffs make similar claims. The plaintiffs claim that pregnancy is not a disease. Thus, drugs to end a pregnancy do not belong within the scope of medicine. Thus, the regulation of those drugs falls outside the proper jurisdiction of the FDA.
The Attorneys General of 22 states agree. They write, “Pregnancy is not an “illness.” It is a natural state essential to perpetuating human life. And typical early-stage pregnancy without complications is not a condition that is “serious or life-threatening” or that requires the “treatment” mifepristone provides.” They note that FDA regulations only allow the approval of drugs that “have been studied for their safety and effectiveness in treating serious or life-threatening illnesses.” They state, categorically, that, because pregnancy is not a disease, the FDA has no authority to regulate drugs that are designed to end a pregnancy.
The roots of such arguments lie in pre-Dobbs debates that took the legality of abortion as a given. In that bygone world, the arguments were about whether an individual who thought that termination of pregnancy did not fall within the scope of medicine could be permitted freedom of conscience and remain in good standing with professional colleagues. Many people argued that such practices should lead to a professional losing their professional licensure. Defenders of conscientious refusals argued, by contrast, the we should encourage different views of the proper scope of medicine. For example, Curlin and Tollefson argue, “Where ambiguity or dispute arises about whether a particular practice belongs in medicine, physicians and patients do their best to negotiate an accommodation that does not require either to do what they believe is unethical. The scope of permissible accommodations will have to be set through the political process, but we echo the conclusion reached by the President’s Commission way back in 1982: “considerable flexibility should be accorded to patients and professionals to define the terms of their own relationships.” Debates about what is or is not a disease have a long history in bioethics. They focused on issues like homosexuality, masturbation, the desire to escape from slavery, infertility, and post-traumatic stress disorder. The classification of conditions as diseases has implications for societal responses. Diseases warrant medical treatment and societal support for that treatment. Non-diseases can be ignored or even punished.
So what does it mean to call a particular condition an illness? The label can be used to create entitlements or to sanction punishments. Homosexuality was, at various times, categorized as a disease or a crime, justifying prison sentences or forced hormonal treatments. a crime that, in some cultures, was punished with court ordered medical treatments. Post-traumatic stress disorder used to be considered cowardice and soldiers were court-marshalled for it. Some were even executed.
If higher courts accept the argument that pregnancy is not a disease and that certain treatments fall outside the proper scope of medicine, we can expect a series of lawsuits to define the boundaries of that scope of practice. Would treatment of infertility, sexually transmitted diseases, or erectile dysfunction be inside or outside the boundaries? Would it matter if the ailments occurred in heterosexuals or homosexuals? I hope that the Supreme Court considers the implications of opening up such decisions to judicial scrutiny. The debate about mifepristone would be the tiny tip of an immense iceberg.