Is Civil Disobedience the Right Move for Physicians?

Should physicians engage in civil disobedience to protect their patients from over-reaching state legislatures?  It’s a provocative suggestion made in a popular blog earlier this week.  And yes, what with legislatures demanding that doctors tell their patients abortion is associated with breast cancer (which it is not) or be faced with felony charges; threatening doctors with losing their licenses if they don’t abide by requirements that women wait 72 hours after their first visit for an abortion even when the fetus is non-viable and waiting could cause harm or risk to the patient; and requiring physicians to perform an ultrasound prior to any abortion even if not medically indicated, along with a detailed description of what can be seen on the screen, it is certainly tempting. For instance, if I were practicing in Texas, it wouldn’t be that hard to start writing down in the medical records that no ultrasound was performed because it was not indicated, or that I was unable to get a clear ultrasound image, or I could even go another step and write down that an ultrasound was performed even if it wasn’t.  I could justify it to myself (and to many sympathetic people on the internet) that I was doing it to protect my patients, because there was nobody else to protect them in the end. And I might even get away with it.

But chances are I wouldn’t actually get away with it. Some insurance company or state health inspector would look over my charts and notice that I always wrote that no ultrasound was performed, or there might be a complication (rare, but it happens) and somebody would realize that although I claimed I did an ultrasound, the patient had no recollection of it being done. Or one of my patients could be paid by anti-abortion activists to tape record my interactions with her and they could release that tape recording to the Department of Health or the state licensing board. Any of these events would not only get me in trouble, but would also jeopardize my co-workers and could even lead to the closure of the clinic I worked at.

The reality is that there are not enough doctors or clinics that provide comprehensive reproductive health care, including abortion services, for those of us who do to take this kind of risk. The major professional organizations that should be around to back us up in this kind of situation, such as the American Congress of Obstetricians and Gynecologists and the American Academy of Family Physicians, have been far from supportive of those of us who provide abortions. So in the end, although such a strategy might help a few patients along the way, it could lead to even worse access to abortion services in the future if we start to lose our licenses and our clinical sites.

Fortunately, public opposition has tempered or eliminated many of these noxious bills.  We must keep up the opposition, and I hope more and more doctors, and eventually the national professional organizations, will join in.

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  • ursula-l

    I wouldn’t say that civil disobedience is a magic bullet to solve this problem.  You’re not going to get enough doctors to participate in order to ensure that women get the health care they need.


    But, if civil disobedience is used, it shouldn’t be because physicians think they can “get away with it.”  When civil disobedience works best, it is part of a larger plan, to help generate sympathy and publicity for the cause, and to create legal test cases.


    Rosa Parks didn’t sit in the front of the bus just in order to get away with sitting in the front of the bus.  She sat in the front of the bus knowing she could be arrested.  She was already active in the civil rights movement, and aware of other situations when people challenged these sorts of laws with civil disobedience.  There were other people, around the same time, who were also defying the law and getting arrested, but the leadership of the civil rights movement chose Parks as a case to rally around, because she was an ideal – married, middle-aged, employed, respectable, a woman.  Someone who was more likely to be seen as sympathetic.  Her case was chosen by civil rights leaders to be a focus for public attention over the earlier case of Claudette Colvin, an unmarried pregnant teenager who had been arrested for breaking the same law some months before Parks.


    Similarly with Gandhi and the civil disobedience used to undermine the British Raj. The salt-march wasn’t just random people choosing to make salt for themselves rather than buying overpriced taxed salt.  It was carefully coordinated, in a deliberate way, in order to overwhelm the capacity of the British-controlled government to enforce the law.  In areas where people couldn’t make salt normally, they would dissolve bought taxed salt, and then boil it down, to symbolically make their own salt.  


    There is a place for civil disobedience against these invasive laws.  But the place isn’t one where individual doctors occasionally break the law when they think they can get away with it.  The place for civil disobedience is as part of the larger movement for reproductive rights, carefully choosing to publicize acts of civil disobedience that are deliberately done by both doctor and patient, choosing the most sympathetic cases (e.g., a woman who has a health condition that requires her pregnancy to be terminated now, rather than with the state-mandated waiting period, an articulate and charismatic doctor who can best emphasize the need for doctors to practice medicine to medical standards rather than legal standards.) 


    Civil disobedience is a tricky thing.  It involves taking very real risks of suffering legal punishment.  And to do it right, it requires deliberate, even cynical, decision making in order to target the disobedience in a way that it will be the most effective.  


    We genuinely believe that every woman deserves to have her reproductive rights protected.  But if we’re going to use civil disobedience as a tactic, it requires carefully choosing test cases – a married, middle-aged white woman who needs an abortion of a planned and wanted pregnancy to save her life will generate more sympathy than a teenager who chooses abortion so that it is possible to stay in school and continue on the cheer-leading team.  The question is, have we reached the point where we’re ready to make these types of cold-headed judgments? 

  • ursula-l

    Another thing to consider when it comes to civil disobedience in this situation is that the doctor isn’t merely engaging in civil disobedience on their own.  There will be a patient involved.  And that patient, if the doctor is prosecuted, will have her private medical history made public, will perhaps be made into a media spectacle, and/or may be forced to testify against her doctor.


    One good reason for the civil rights movement to focus on Parks rather than Colvin as the most publicized test-case is that Parks was an adult, associated with the civil rights movement, and able to meaningfully give informed consent to the ordeal that was associated with being a public test-case against the segregation laws.  Being that test-case cost her a lot – she lost her job, her husband lost his job, they eventually had to move to a different city to try to get their lives back on track.  It probably helped that she had no children – no dependants to be caught up in the harm that came at her because of the situation, no one to be manipulated as an innocent pawn against her.  


    It may be better for a patient not to go through invasive and unnecessary procedures and to be made to listen to lies.  But it may not be better for the patient to go through the public ordeal that would follow if the doctor didn’t follow the law and the patient was drawn into the mess without consenting to be part of the civil disobedience.  


    A doctor may choose to follow the law, not because the requirements of the law are in the patient’s best interest, but because the legal consequences of not following the law are not in the patient’s best interest. 


    Civil disobedience is a difficult, dangerous, and ugly matter. It involves deliberately taking great risks, in the hopes of achieving great good.  You’ve got to consider the possibility of being Homer Plessy rather than Rosa Parks.


    In the civil rights movement, when challenging segregation, civil disobedience involved not only taking the risk of being legally convicted and facing fines and imprisonment, but also the risks of being targeted by the KKK and other racist and violent powers.  


    In the case of anti-abortion laws, civil disobedience involves, for both doctor and patient, not only the risks of being legally convicted of breaking the law, but also all the risks that come from being a high-profile pro-choice person, in a world where medical clinics are bombed and doctors are gunned down in their churches and women who admit to having abortions are shamed and threatened.


    This is not to say that civil disobedience can’t be considered as a productive part of the overall effort.


    But if it is to be used, it needs to be used in an informed and careful way. Measuring for the greatiest impact while minimizing the chance of harming people who have not consented to the risks involved.  

  • sharonmd

    I think you made my point more eloquently than I did.  Civil disobedience is a useful tool but can have serious repercussions.  As I pointed out, doctors could lose their licenses and clinics could be shut down, leading to even worse access.  And as you point out, there could be severe consequences for the women involved as well.  I completely agree that it’s not a tool to be used lightly.  But you’re right, if a case were chosen carefully and with the help of dedicated reproductive rights lawyers, it could work.