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Should Doctors Break the Law?

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The horrific stories are pouring in. A Texas woman’s water breaks at 18 weeks, leaving the fetus’s chance of survival “as close to zero as you’ll ever get in medicine,” according to one expert. Yet she must wait until she is hemorrhaging profusely and burning with fever — that is, not dead but almost — before the doctors agree that it’s legal to perform an abortion. A Tennessee resident learns that her baby’s “brain matter [is] leaking into the umbilical sac,” gravely threatening her own health. She is forced to travel 200 miles to another state where doctors may take the fetus from inside her. A Wisconsinite bleeds for more than 10 days from an incomplete miscarriage because the emergency room staff fears that performing the standard-of-care uterine evacuation will be against the law.

The antis scoff at these stories. They accuse abortion proponents of exaggerating the dangers of criminalizing abortion in order to murder more babies for profit. Organizations like Students for Life and the American Association of Pro-Life Obstetricians and Gynecologists continue to hold that “abortions are never medically necessary,” giving lawmakers cover to press the limit of legal abortion ever closer to the pregnant person’s demise. Typical language is Missouri’s, which allows a pregnancy to be terminated only when “a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman,” or kill her. No one, not even the most experienced practitioner, knows precisely when this moment arrives.

It was in the liminal space between hyper-restriction and complete prohibition that 31-year-old dentist Savita Halappanavar died of septicemia in an Irish hospital in 2012. Her death helped propel the Irish abortion decriminalization movement to victory six years later. With extremists gunning to eliminate all exceptions to abortion bans, Medical Students for Choice Executive Director Pamela Merritt worries that restoring abortion rights in the U.S. may require a similar sacrifice. “We’re going to have to see what happened in Ireland, a completely preventable death,” Merritt said. “It will take more than one.”

“At what point does the duty to comply with laws enacted by a legislative majority (or with executive acts supported by such a majority) cease to be binding in view of the … duty to oppose injustice?” wrote the philosopher John Rawls in “A Theory of Justice.” Were Rawls alive today, he might ask, “At what point does the duty to comply with laws enacted by a judicial cabal of five and supported by a minority cease to be binding?” Sooner, I think.

Rawls’s question comes at the beginning of his discussion of civil disobedience, which he defines as “a public, non-violent, conscious political act against the law with the aim of bringing about a change in the law or government policy.” Clinicians are anguishing over the impossible choice between good medicine and bad law, between their oaths to do no harm and the unscientific, cruel bans that force them to abandon their ethics and do harm or face penalties as heavy as life imprisonment. Almost all obstetrician-gynecologists detest these bans and envision no end to them. They also know that their own action or inaction may spell the difference right now between their pregnant patients’ security and poverty, safety and domestic abuse, health and impairment, life and death.

Should doctors break the law?

Throughout history they have, sometimes with extraordinary heroism. During the German occupation of the Netherlands, for example, Dutch physicians unanimously refused to join the Nazi medical guild, which would have meant committing atrocities such as euthanizing chronically ill patients. The doctors turned in their licenses instead, even after 100 of their colleagues were sent to concentration camps.

Civil disobeyers, says Rawls, maintain the legitimacy of their cause by showing that they are not acting only in self-interest and that they respect democracy and the rule of law: They willingly pay the price for defying an unjust law. Curtis Boyd began providing abortions in East Texas in the 1960s through the Clergy Consultation Service, a network of ministers and rabbis who arranged at least 450,000 clandestine medical abortions before Roe v. Wade. “This law needs to be changed, this service needs to be provided, and I’m going to do........

© The Intercept


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