Overlooked Medical Factors

The Overlooked Medical Factors Of America's Abortion Decisions

Published In The Death Of America

1974

America's two abortion decisions, Roe v. Wade and Doe v. Bolton have been widely hailed and accepted (so far) by the medical profession. It would seem appropriate, therefore, to review these decisions with the objective of better understanding their implications for medicine.

A reflective reading of these two decisions makes apparent that several factors have been overlooked. These factors are of ominous legislative importance for the medical profession as we now know it. Indeed, it is difficult to believe that these two decisions will be anything other than the source of a maze of medico-legal problems not limited merely to abortions. Without a complete repudiation of these two decisions, I believe, physicians and law makers will have to grapple with these problems for decades.

It is of no small importance that physicians understand the abortion decisions as they actually are and not as they are wished. This is so especially in these days of copious moralizing on the part of those who universally condemn the political event known as "Watergate" and its implications. Realizing the overlooked factors in America's abortion decisions within the context of Watergate (i.e., people setting themselves up above the system), medical practitioners must ask if they are not similarly setting themselves up above the system. This is a brief digression but still a worthy problem to note, because physicians have set themselves up above the law for years in regards to abortion. Physicians should read the Supreme Court decisions and perchance find that some factors have been overlooked.

Before the factors are described, it is appropriate to ask "why have these factors been overlooked?"

First, they have been overlooked because the emphasis on the inability of the laws to protect the fetus, has blinded them to the decision's restrictions on the practice of medicine beyond the performance of abortions.

Second, the elation of the abortion proponents to the new "non-entity" status of the fetus, has similarly blinded them to these same restrictions from the court. Of course, it may also be the case that the abortion proponents do not want to recognize these restrictions, and, if you will, have set themselves up above the system in a manner no less reminiscent of Watergate.

Finally, these factors have been overlooked because the abortion proponents' interpretation of the decisions has been amplified by the media consistent with the longstanding pro-abortion bias of the media. Why the media functions in this way is not the point of this article. Nevertheless, it remains true that most people (and physicians) have accepted America's abortion decisions without a full understanding of the implications.

The time has come, therefore, for a close look at these two abortion decisions. Four factors purposefully ignored or innocently overlooked will be described.

The first factor is that the two decisions state quite clearly that the constitution has not authorized "abortion-on-demand." In Roe v. Wade, page 38, it states:

...some...argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.

Further on the same and next pages:

The privacy right involved, therefore, cannot be said to be absolute.

Thus, the Court explicitly stated that abortion on demand is neither authorized nor constitutional should it be in effect anywhere. Obviously, any law passed must be abortion-on-something-other-than demand. A case may even be made that any law interpretable as abortion-on-demand, would itself be unconstitutional. This would include New York's and California's abortion laws.

More will be written about what a state's law must contain to be constitutional, but certainly any law must qualify the procedures so that abortion is not on-demand.

The following question then becomes prime: How is abortion to be not "on demand"?

The Supreme Court answered this clearly also: Abortion is a medical decision. On Page 49 of Roe v. Wade:

For the stage prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

Further, on the same page, it is quite obvious that for all stages of pregnancy, the abortion decision is similarly a medical judgment belonging to the attending physician.

In summary, this first overlooked factor is that the abortion "right" is a medical one belonging to the physician (rather than the pregnant woman) in all stages of pregnancy, including the first trimester.

As stated on Page 50 of Roe v. Wade:

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to these points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.

Thus, it is obvious that no woman has the right to demand an abortion. She has the right to ask a physician for one. The physician has a right to perform the abortion if decided justifiable by medical judgment.

The required professional medical judgment (with abortion-on-demand excluded) is the second medically relevant factor usually over-looked in America's abortion decisions. This second factor is that the Court defined clearly that it expected the physician alone to do many things personally in order to make certain that abortion-on-demand is not, in fact, what is taking place. The Court did this by elaborating on what is now the constitutionally based concepts of "responsible physician," "conscientious physician," and "good physician" as pertaining to abortion.

In Roe v. Wade, Page 38, the Court stated that many factors were to be "necessarily" considered by the "woman and her responsible physician" in consultation about the abortion procedure. The factors to be considered were specifically mentioned by the Court. All were related to "the detriment that the State would impose upon the pregnant woman by denying this choice" (to have an abortion): Specific and direct harm medically diagnosable; a distressful life and future; psychological harm that may be imminent; mental and physical health that could be taxed by child care; the distress associated with the unwanted child; the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it; and unwed motherhood. Of these, the Court stated:

All these are factors the woman and her responsible physician necessarily will consider in consultation.

As if this were not enough, the Court went further in its excursion into the field of medicine. In Doe v. Bolton, Page 16, the Court stated in regards to the "conscientious...good physician":

He, perhaps, more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, so-called "error", and needs. The good physician -- despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are "good" -- will have a sympathy and understanding for the pregnant patient that probably is not exceeded by those who participate in other areas of professional counseling.

So the Supreme Court trusts most physicians to be "good" in the context of having sympathy and understanding that is not generally exceeded by professional counselors!

It is tempting to state that the Court has an incredible naivete or perhaps an immense ignorance of contemporary medical practice. On the other hand, it may be that the Court was relying upon the existence of a medical profession that does not any longer exist -- at least not in the abortoria of New York and California where physicians cannot be any longer called responsible, conscientious, and good as the Supreme Court described these traits.

In any case, as a result of these grandiose ideas about physicians, the Court placed the abortion decision (even in the first trimester) into the hands of responsible, conscientious, and good physicians defined, in summary, by the Court to be: first, necessarily consulting on all the detriments involved if the abortion were to be denied, and second, consulting in a manner of sympathy and understanding that probably is not exceeded by those who are professional counselors. Never minding the Court's misconceptions about physicians in general and abortionists in particular, what the judiciary expected from these individuals is eminently clear.

Needless to write, such a physician's involvement would have to be deep, personal, and thorough, remembering that no allowance in the decisions exists for anyone but the physician to do all this. Excluded are social workers, registered nurses, ministers, and any other non-medical abortion counselors. Such non-medical individuals appear inconsistent with and in contradiction to the Supreme Court's description of physicians' behavior. Whether practical or not, such are the standards defined by the Supreme Court.

To summarize, the second medically relevant factor resulting from the two abortion decisions is to write the following: The physician must personally assess the patient in a responsible, conscientious, and good manner, delving into all the detriments if denied the abortion, at the level of sympathy and understanding of a professional counselor.

Thus, the Court defined the "responsible, conscientious, and good physician" by describing the content and quality of the physician-patient abortion consultation. It is these descriptions that a state law must duplicate to be constitutional. That is, any abortion law would appear to be not constitutional unless it prescribed the content and quality of the physician-patient consultation so that abortion-on-demand is precluded as emphatically desired by the Court.

In addition, this judicial interest in the physician-patient relationship would appear to portend the end of the privacy of the physician-patient relationship. For, after all, how could the Court expect a law to prescribe the content and quality of the physician-patient interaction without having access to that interaction? The confidential privileged relationship between patient and physician would appear in great jeopardy -- at least for abortions. One must also ask if this is not precedent for other procedures as well.

If, on the other hand, the Court's intent was not to erode the confidentiality of the physician-patient relationship, then it obviously was relying on physicians having high standards of professional integrity that did not need monitoring by a third party. This idea would appear to be confirmed by Burger's concurring comment in Roe v. Wade, Page 2:

....the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health.

Nevertheless, the Court seemed to contradict its trust in the integrity of physicians, because it addressed itself to the chance that some rascals may appear. The Court stated in Roe v. Wade, Page 50:

If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional are available.

The Court therein both questioned the integrity of physicians (in spite of its professed confidence in such integrity) and opened the door for legislative restrictions by making "the usual remedies," whatever they might be, available for those physicians who do not fit the Court's prescribed responsible, conscientious, and good behavior as already detailed. Those physicians who do not exercise proper medical judgment in the described manner can, it would seem, be dealt with readily. Most certainly, an abortion law can therefore define penalties for "the rascals in the medical profession" as the Court put it.

The Court made this allowance with the expectation that the "usual remedies" would be little needed, because their apparent attitude towards physicians was a grandiose expectation for responsible, conscientious, and good behavior with the observance of the standards of their profession, etcetera...

Relying, however, on the reputation of good medical standards, this 200 year old Court summarily (and unwittingly?) destroyed the ancient 2400 year old basis for those very standards.

This is to arrive at the third medically relevant factor, which is that of what the Court did to the Oath of Hippocrates.

The Court identified the Oath of Hippocrates as a Pythagorean manifesto reflecting a small minor segment of physicians in Ancient Greece. The Court accepted the Oath as a statement revered throughout history but inferred that its Pythagorean "rigidity" rendered it obsolete: and that it had indeed been so obsolete for centuries.

The Oath of Hippocrates, therefore, which has been the basis for the tradition of ethical, responsible, and conscientious behavior of physicians was discredited to a degree such that it can scarcely be used any longer as a means of reflective efficient teaching of good ethical behavior to student physicians. After all, who is to pay attention to something debunked so severely by the Supreme Court?

What is the meaning of the loss of the Oath of Hippocrates? To answer that question, one must understand what the oath accomplished.

In brief, the Oath was a source of universal attention by almost all students of medicine at some time or another. Its age of origin, its brevity, its comprehensiveness, and its tradition of acceptance, all served to render the Oath a catalyst for physicians-to-be to discuss and to reflect on their personal behavior vis-a-vis patients.

The Hippocratic tradition was easily grasped and readily incorporated so that a behavioral outlook developed spontaneously which was compatible with functioning as a physician in a satisfactory manner without having to be burdened with knowledge of laws and regulations. Indeed, most of us did not know what laws and regulations governed us. No such courses were offered in medical school anyway, and you generally did not need to know if you followed the Oath.

For physicians then, the absence of the Oath of Hippocrates will create a vacuum in the teaching of a basic ethical outlook for patient care. Disregarding the problems for the medical profession created by the loss of the Oath, it is important furthermore to understand what is lost to the patient.

First, lost will be a promise by physicians to perform no acts that bring on death. This is because the Oath of Hippocrates was clearly anti-death.

Second, lost will be a promise by physicians to care for the individual patient as an individual regardless of a society's demands, prohibitions, or even needs. Thus, the personal commitment to the individual patient is gone. This is because the Oath of Hippocrates was clearly oriented to the well being of the individual.

Without the Oath of Hippocrates, remaining are the Ten Principles of Medical Ethics of the American Medical Association. Unlike the Oath of Hippocrates, these Ten Principles contain no admonition that is anti-death. They do, however, place the individual as a tentative primary concern of the physician, but an individual patient can readily be demoted to a status second to human society or humanity as a whole.

With the Ten Principles of Medical Ethics of the American Medical Association, a physician can function in any way society wants or society dictates. If an act is legal, then it is ethical. Perhaps if an act is not illegal, then it is ethical.

With such ethics, the legal monitoring and regulation of the medical profession would appear necessary to an unforeseeable degree. This is no problem in law, because it has been done to minor degrees for years. But now, the law may regulate medical practice in much more comprehensive manner, because the Supreme Court explicitly defined medical standards in the two abortion decisions. Precedent would appear, therefore, to have been set for legally defined guidelines about not only abortion, but cardiac surgery, appendectomies, and diagnostic testing. In fact, any medical procedure can be considered by legislators who may now define responsible, conscientious, and good behavior for the physicians' use of any procedure. Once again, anything can be ethical unless legally proscribed. As previously stated, without the tradition of the Oath of Hippocrates, the standards of medicine are in a vacuum and dependent upon legal proscriptions.

To summarize, this third factor: the Supreme Court appeared to be relying upon the good professional standards of physicians which would enable responsible, conscientious, and good behavior in regards to the abortion decision so that this decision was not abortion-on-demand. Unwittingly, however, the members of the Supreme Court discredited those very standards upon which they were basing the abortion decision in the first place.

The Court has irreparably discredited the Oath of Hippocrates which is called by a current publication of the American Medical Association: "...a living and even workable statement of ideals to be cherished...an expression of ideal conduct for the physician."

The fourth and final factor important to the medical profession resulting from the two abortion decisions, is the following: That the safety of abortion is stated in Law:

In Roe v. Wade, Page 34, it states:

...abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortion, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.

That is a moderate statement, but the Court did not stop there. In Doe v. Bolton, the following statement is on Page 10 of the decision:

...advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child.

Therefore, the two Supreme Court decisions attest to the safety of abortion. It would be reasonable, therefore to have any physician explain why any complication of an abortion was not negligence. For, after all, if abortion is safer than normal child bearing, then any complication could be negligence and the occurrence would speak for itself. Women would seemingly have the right to the doctrine of res ipsa loquitur with any complication of an abortion. This means, of course, that the burden of proof that a medical act was not negligence falls onto the physicians, and this would appear to be a constitutional standard in regards to this procedure.

To realize the importance of judicially defined medical standards in terms of legal precedent, the fact becomes obvious that, if the Supreme Court can do it, then legislators can follow and define the safety of other procedures as well as the content and quality of the physician-patient interaction.

To review the four overlooked relevant factors in America's two abortion decisions, is to state the following:

First, abortion-on-demand is in fact the case for only the unborn child, because the unborn has been legally decreed to be a non-entity. For women and physicians, however, abortion-on-demand is not the case. To the contrary, women have a "right to privacy" which includes the abortion decision. However, this right to privacy is not an absolute right. In essence, the right to abortion belongs to the physician; that is, the physician has the right to perform one.

Second, the physician has the right to perform an abortion when he personally feels it is indicated in accordance with his medical judgment based upon responsible, conscientious, and good consultation with the woman personally at the level of a professional counsellor which necessarily involves the review of all factors detrimental to the woman if the abortion were to be denied. This is a clear definition of medical practice by the highest court in the land. It obviously opens a door to a legal regulation of the medical profession in the most intimate aspects of the physician-patient relationship which can no longer be considered privileged or private.

Third, no meaningful professional standard for physicians now exist because of the supreme Court's near absolute discrediting of the Oath of Hippocrates. Remaining only are the Ten Principles of Medical Ethics of the American Medical Association which are clearly dependent upon legal prescriptions for professional standards. It should be no surprise, therefore, if legislators follow the Supreme Court's lead and define standards of responsible, conscientious, and good behavior for physicians consistent with a quasi-socialized medical system. Needless to write, the tradition of medical autonomy has ended. The legal regulation of medicine in America by law has begun.

Fourth, the safety of abortion has been clearly stated in law at the highest level. Physicians should understand the safety expected in regard to abortions, and any abortion legislation could give the woman the right to a doctrine of res ipsa loquitur. It is difficult to believe that law makers could not do the same for any other medical procedure.

Considering all four factors, it seems apparent that legislators may now charge public health officials to take appropriate steps to insure medical practice to be sound and to protect people from the medical profession in regards to indiscriminate abortions among other medical procedures. Extensive legal involvement with medicine-in-general (and not just abortion) is no longer a possibility; it only awaits for the legislators to act, because the highest judiciary has already made it a fact.

With the current trend and attitudes towards a government controlled health service, it should be no surprise that the two abortion decisions have laid the groundwork for a complete legal definition of medical practice encompassing the content and quality of the physician-patient relationship, the possibility for judicial remedies for malpractice, and, finally, the safety required for medical practice.

In closing, two conclusions are offered: First, the two abortion decisions do not authorize abortion-on-demand. Physicians might take note of this, particularly in these days of Watergate with the copious moralizing and condemnation of groups which set themselves up above the system.

It remains for the practitioners of medicine not to set themselves up above the system and provide abortions-on-demand. Unless the practitioners do comply with the Supreme Court, it seems clear that the second conclusions will need be quickly brought into being.

The second conclusion is that the two abortion decisions are, in reality, an innovative judicial definition of medical practice which has laid the groundwork for a complete government regulation of medicine. This second conclusion may become fact regardless of physicians' behavior in regards to abortion. But for those who have fought for the autonomy of medicine, the end is in sight. The judicial precedents are already fact.

It is hard to take exception to this closing note: the two abortion decisions by the United States Supreme Court are, upon close analysis, a duo at critical odds with the private and traditional practice of medicine in America and an incomprehensible legislative nightmare. This would seem to be the case regardless of how posterity will judge these decisions as compatible or not with the original American ideals.

The decisions stand as they are written. They cannot be wished or rationalized away. Those who would disagree, would do well to read them.

ADDENDUM

To draft meaningful legislation in regards to abortion, is to necessarily have some understanding of the four factors described. Some statements therefore are relevant of legislation intending to conform abortion laws to Supreme Court standards. That is, to be in accord with the two Supreme Court decisions on abortion, the following should receive serious legislative consideration by states which desire an abortion law in accordance with the Supreme Court decisions.

In these laws, legislators would not regulate the abortion procedure as prohibited, but, instead, the lawmakers would define standards to be met for good professional medical judgment in accordance with responsible, conscientious, and good physicianhood. The Supreme Court did it; legislators should follow by using as far as possible the same words used by the Supreme Court.

For the first trimester, the lawmakers should entertain the following:

An abortion of pregnancy is unlawful unless the physician performing the abortion of pregnancy demonstrates his responsible, conscientious, and good professional medical judgment by consulting with the pregnant woman, at a level of sympathy and understanding that is not exceeded by those who participate in other areas of professional counseling. The physician shall necessarily consider in detail all the factors related to the detriment that would be imposed upon the pregnant woman if the abortion were to be denied. The factors to be specifically considered are: Specific and direct harm medically diagnosable; a distressful life and future; psychological harm that may be imminent; mental and physical health that could be taxed by child care; the distress associated with the unwanted child; the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it; and unwed motherhood. These factors are to be considered personally, thoroughly, and in depth, all appropriate to a level of sympathy and understanding not generally exceeded by professional counselors. Detailed records of said consultations shall be kept and properly safeguarded for the purpose of inspection by health officials charged with insuring that abortions were not performed on demand because the woman's right to privacy is not absolute and the field of medicine is not without its rascals.

For the stages subsequent to approximately the end of the first trimester (thirteen weeks), lawmakers should not regulate the abortion procedure in ways that are "reasonably related to maternal health" as the decisions allow, but instead legislatively define the "responsible, conscientious, and good physician" to be one who affirms and documents that the maternal health of the woman is contingent upon continued hospitalization if the pregnancy were not terminated:

An abortion of pregnancy is unlawful unless the physician performing the abortion of pregnancy determines, based upon his best clinical judgment, whether or not the abortion will be performed subsequent to approximately the end of the first trimester (13 weeks) and, if he determines that it will be performed subsequent to the 13th week of pregnancy, he further demonstrates his responsible, conscientious, and good medical judgment by affirming and documenting that the maternal health of the pregnant woman is contingent upon continuous hospitalization if the pregnancy were not terminated. The records detailing the need for continuous hospitalization should the abortion be denied shall be kept and properly safeguarded for the purpose of inspection by the health officials charged with insuring that abortions are not performed on demand because the woman's right to privacy is not absolute and the field of medicine is not without its rascals.

For the stage subsequent to viability, lawmakers should not regulate the abortion procedure to the "preservation of the life or health of the mother" as the decisions allow. Instead, they should legislatively define the "responsible, conscientious, and good physician" to be one who affirms and documents that the life or health of the pregnant woman is contingent upon continued intensive treatment in an intensive care unit or a psychiatric hospital if the pregnancy were not terminated:

An abortion of pregnancy is unlawful unless the physician performing the abortion of pregnancy determines, based upon his best clinical judgment, whether or not the abortion will be performed subsequent to the point of viability (approximately 20 weeks of gestation), and, if he determines that it will be performed subsequent to the 20th week of pregnancy, he further demonstrates his responsible, conscientious, and good professional medical judgment by affirming and documenting that the life or health of the pregnant woman is contingent upon continuous intensive inpatient treatment in a medical-surgical hospital or in a psychiatric hospital if the pregnancy were not terminated. A record detailing the need for continuous intensive inpatient treatment should the abortion be denied, shall be kept and properly safeguarded for the purpose of inspection by health officials charged with insuring that abortions are not performed on demand because the woman's right to privacy is not absolute and the field of medicine is not without its rascals.

Lawmakers should also take note of the requirement that physicians alone be involved in the abortion decision-making process. Non-medical abortion counselors, and medical assistants have no place in the determination of the abortion decision. Such individuals appear inconsistent with and in contradiction to the Supreme Court's description of physician's behavior:

No person shall be involved in the medical judgment or decision-making process of determining the performance of an abortion except ancillary or paramedical personnel involved in radiological, biochemical, or physiological testing. Any person doing such counseling about abortion who does not have the proper certificate to practice medicine or osteopathy shall be declared a public nuisance and automatically fined $500.00 per offense.

Conducive to monitoring the medical judgment pertaining to abortion, mandatory and comprehensive Public Health forms can be required that pertain to the physician's exercise of state-expected conscientious and responsible professional behavior.

Any physician who performs an abortion of pregnancy within this State shall file a report to the Department of Health, on a form prescribed by the Department, within 30 days after the abortion is performed.

Consistent with lawmakers defining medical practice as boldly introduced by the Supreme Court, is a directive to physicians to assess the men responsible for the untimely pregnancy which is to be aborted (the following is good preventive medicine):

An abortion of pregnancy is unlawful unless the physician performing the abortion of pregnancy documents a meaningful contact or an effort to contact directly the man or men named to have been probable cause of the pregnancy in an effort to promote preventive medicine so that future abortions will prove unnecessary. The factors related to the detriment that would be imposed upon the pregnant woman if the abortion were to be denied and the factors related to the need for continuous hospitalization if the pregnancy were not terminated, shall be discussed thoroughly with the man or men so named, at a level of sympathy and understanding not exceeded by professional counselors. Detailed records of said counseling with the man or men named by the woman to be probable causes of the pregnancy shall be kept and properly safeguarded for the purposes of inspection by public health officials charged with safeguarding the health of the people of this State.

Enforcement of such a law containing such statements would be difficult, but only if the penalties were light. A stringent automatic penalty (a fine of $10,000.00 plus a six month suspension of license per offense) would be sufficient to discourage most from having a less than thorough approach to a woman asking for an abortion.

Finally, the doctrine of res ipsa loquitur should be clearly legislated as the right of any woman undergoing abortion.

*Written 1973.