Government
Physicians could face dilemma over New Hampshire abortion law decision
■ Some doctors question the state's attempt to legislate their medical judgment in an emergency. Other disagree and say the law works.
By Amy Lynn Sorrel — Posted Dec. 26, 2005
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A number of doctors say the outcome of the first abortion case before the John Roberts-led U.S. Supreme Court could pose a dilemma for them: What to do first -- trust their medical judgment or call a lawyer?
The lawsuit challenges the constitutionality of a 2003 New Hampshire law that requires doctors to notify parents 48 hours before an abortion is performed on a minor. The only exception to that rule is if the abortion is necessary to save the patient's life.
A federal appeals court declared the law to be unconstitutional, saying that the exception was not broad enough to protect young women from health emergencies that are not immediately life-threatening.
Some in the physician community say the law is a good one. Others say it needs to be struck down because having to consult a judge, or having a judge potentially decide whether an abortion was legal, puts doctors in an ethical and legal bind.
Oral arguments took place Nov. 30, and several medical societies filed friend-of-the-court briefs in the case.
Physicians who oppose the law in its current form say it interferes with their medical judgment. Doctors are particularly concerned that the narrow definition of a medical emergency will mean that the decisions they make about what is best for the patient would be subject to a judge's interpretation.
It poses physicians with an ethical dilemma, said Georgia Tuttle, MD, past president of the New Hampshire Medical Society, which filed a friend-of-the-court brief along with the American College of Obstetricians and Gynecologists, the American Medical Association/State Medical Societies Litigation Center and several other medical societies.
"The lack of a health exception prevents physicians from caring for patients in the way they think appropriate by having to go to the court in an emergency," said Dr. Tuttle, a dermatologist. She said that often, there might not be time to go to court, noting that a situation can move from manageable to unmanageable in a matter of minutes.
Rare occurrence?
But doctors who support the law disagree. They argue that the law would rarely, if ever, interfere with medical decision-making and say the types of health emergencies some doctors are concerned about are rare.
"The question is: Is there such an immediacy of medical need that time does not allow for it?" asked Tennessee ob-gyn Gene Rudd, MD, associate executive director for the Christian Medical and Dental Assn. "We are probably talking about such exceedingly rare situations that I'm sure a law could be written for doctors to proceed in a true emergency."
Dr. Rudd said parents should be involved in the child's health and that a law with a broader health provision would be meaningless.
State of New Hampshire officials also disagree with physicians who oppose the law because of ethical concerns. In a brief New Hampshire Attorney General Kelly A. Ayotte filed with the Supreme Court, the state argues that the law still allows doctors to act in the best interest of the patient through judicial bypass.
If a child won't, or can't, reach her parents in a medical emergency, a doctor can seek a court order to go ahead with the abortion. "The act requires the court to 'reach a decision promptly and without delay,' " the brief states.
To make sure that can happen quickly, Ayotte suggests developing a system that gives doctors and hospital emergency departments access to judges' home phone numbers.
Fear of legal troubles
In addition to ethical concerns, physicians opposing the law also worry that a legal burden is placed on them. If a physician does what he or she believes is best for the patient without going to the court because there isn't time, Dr. Tuttle said physicians fear that they could face state criminal penalties if a judge later disagrees with the medical decision.
At the same time, if a physician doesn't act because of fear of facing criminal charges, he or she could face a civil medical liability lawsuit if the decision not to take action results in a bad outcome for the patient, Dr. Tuttle said.
For example, doctors say other health emergencies such as infertility or kidney failure could arise if the abortion is not performed. Although these complications may not qualify as life-threatening under the law, the patient does face health threats if the abortion is not performed.
Dr. Rudd disagrees that physicians should be worried about that situation. "Doctors are taking good care of their patients, and if they are following what the law stipulates, there should be no problem," he said. "We should not base a law on potential litigation."
New Hampshire's Ayotte argues that the state's "competing harms" defense protects doctors in a worst-case scenario, in which they cannot give the required notification nor obtain a timely judicial bypass before the abortion is performed. The competing harms defense applies when the abortion is deemed necessary "to avoid the risk of severe and permanent damage to the minor's health, yet is not so severe as to be life-threatening."
While Supreme Court precedent has fallen in favor of a health exception in state abortion laws, there is no indication yet of where this court, led by the new Chief Justice John Roberts, is headed. A decision is expected sometime next year.
The last abortion case the U.S. Supreme Court heard was in 2000 when it rejected a Nebraska law banning late-term abortions. The case, Carhart v. Stenberg, was similar to this New Hampshire case in that the lack of a health exception was at issue as well.