The Doctor’s dilemma

March 22, 2012

So, over on Feminist Philosophers, I claimed that health carers have an ethical problme: Whether to comply or defy the various unnecessary ultrasound (and other horrible) laws. Amanda Marcotte argues that it’s not much of a dilemma:

The anon doctor suggests that abortion providers reject the mandatory ultrasound law by refusing to do it, and doctoring patient files to make it look it was done, if necessary. This is characterized as “civil disobedience”, but it’s really not in the same way that getting arrested at protests for moral but illegal trespassing is. Civil disobedience works best if it has a public component, to draw attention to your issues in hopes of changing the law. Privately doctoring files doesn’t accomplish that.

While it’s always theoretically possible that doctors who do this will get away with it, the result if they get caught will not be that they generate outrage in a complacent public and get the law changed. No, they’re probably just going to get their license stripped, and be unable to perform legal abortions. Which is what anti-choicers want. They would be delighted if doctors refused to obey the law, and could be stripped of their licenses. Giving the oppressor what they want most in the world isn’t effective action. It is, in a word, counterproducitive. The reason anti-choicers pass laws like this is, I believe, they know that women will jump through any hoop to get rid of an unwanted pregnancy, and they want to maximize the pain and suffering of the whole ordeal. Pro-choicers should take that knowledge and realize that depriving women of safe, legal providers is about the worst possible thing you could do under these circumstances. Yes, a non-consensual procedure is a horrible thing, but if you look at the choices women make, not being able to get a safe, legal abortion is more horrible.

Let’s distinguish the question of whether doctor non-compliance with such laws is effective civil disobedience from whether the doctor ought to perform the unnecessary mandated procedure. Clearly, many doctors are not culpable for being required to perform the unnecessary procedure (which, as many have pointed out, meets many legal definitions of rape (I’m being rather more neutral than I feel about this; it’s sufficient to cause an ethical problem that the procedure is invasive, unpleasant at best, not medically required, not otherwise helpful to the patient, and not desired by the patient): They didn’t support the law.

I think it’s clear that the medical profession as a whole is not responding vigorously enough. These sorts of regulation should be toxic and cause systematic outcry from the profession. But given that that’s not happening and that it’s not clear if it would change anything, what should the provider do? Marcotte claims, I think correctly, that many women seeking abortion will prefer to undergo the unnecessary, abusive procedure and get the abortion to not getting the abortion. That women got tremendous numbers of truly horrible and highly risky back alley abortions under the criminalization regime certainly supports that.

And maybe that’s enough. It must surely take a fairly tough psychic toll on both the patient and the doctor. Maybe the doctors get used to it, I don’t know. But it’s hard to blame doctors for choosing other specialities. Even putting aside the threat to their lives, it takes a very tough person to deal with being compelled to do this sort of awful thing in order to help people. (And, of course, this is part of the point of such laws.)

So maybe the dilemma isn’t there. Maybe the right thing is clear and it’s just hard. Awful.

76 Responses to “The Doctor’s dilemma”

  1. Bijan Parsia Says:

    And yes, Xena, feel free to rant away.🙂

  2. Bijan Parsia Says:

    And yes, I still have some obligations to discharge from the charity discussion…

  3. xena Says:

    Thanks, Bijan 🙂 I was wondering how that odd collection of deleted then reposted comments looked to the other commenters. Actually, I must admit, I was fishing for a pattern to try to re-establish what’s acceptable on that site. I was surprised by the disappearance of a number of totally bobble-headed comments, while others that I figured would surely be deleted weren’t.

    The only serious rant I’ve posted there in months was my comment on that pathetic, racist self-appointed Florida mallcop.

    I was just saying that while Marcotte is right about quietly refusing to administer state sanctioned rape not *technically* being civil disobedience, it is a good course of action.

    I’m not sure how rewritten legislation turns into implementation in the US, but up here, we have a period of suffering through stupid mallcops and social workers trying to enforce idiotic laws every time our gvt. changes. These little crusades are designed solely for the purpose of piecing off stupid voters who lobby for whatever, they’re brutally enforced for 2-4 years, and then everybody just gets tired of it and gets lazy. Or they realize how unenforcable the stupid law is, and they don’t bother with it. Case in point, the threatening letters my sister was getting about her student loan, which she as an officially bankrupt disabled person doesn’t even have to pay. She did the polite thing and responded to these harassing letters (which were sent illegally–our creditors are not allowed to harass us) with an offer to finalize a $50/month payment plan in front of a Small Claims judge, but told these lawyers what they could do with their $2000 court costs. They didn’t even show up in court! The judge awarded my sister $100 in damages to be paid by the plaintiffs.

    So I was saying that AM’s anti-choice rat scenario was extremely far-fetched. If stupid law arcs follow a similar pattern in the US to the pattern up here, nobody will notice if doctors quietly break the Ultrasound Rape laws. They should just photoshop a bunch of fake ultrasound images and not bother obeying the paternalistic law.

  4. xena Says:

    What I’m saying is that laws like this are usually passed by people who believe that threat of punishment will deter any behaviour that the threatener wishes to control.

    WRONG!! Punishing victims is often more time consuming and expensive than helping them. All that laws like this ever accomplish is to create a subset of persecuted and mistrustful people who will break the stupid laws and vote for somebody else in a few years.

  5. xena Says:

    Ok, this is a philosophy blog. Change my ranty use of the words “stupid” and “idiotic” to the more PC paternalistic.

  6. Bijan Parsia Says:

    I’m not sure how far fetched it is. I’ve read accounts from abortion clinic workers about being abused as baby killers by the women they were helping get an abortion.

    At the very least, a sting is trivial. You don’t need to get the abortion to show that the law is being disobeyed. In the post-O’Keefe world we live in, it’s sure to happen. Given the paucity of abortion providers, it wouldn’t take much to make it effectively unavailable for a wide swath of women.

    • xena Says:

      I’ll put this comment in a reply box so the discussion doesn’t get too cluttered.

      It’s one thing for a woman to get a legal abortion and then turn on her doctor in some kind of protest march outside a clinic, but if both the woman and the doctor cross the line into *breaking the law* by skipping the Transvaginal Ultrasound, I think things would be a little different. The women would be much more fearful of sharing the doctor’s legal problems, wouldn’t they?

      I’m almost tempted to start Godwinning here. Almost. I guess these ideologues aren’t quite on par with Josef Mengele, and the doctors who resist them aren’t quite on par with the underground resistance movements of 1940’s Europe. Yet.

      • Bijan Parsia Says:

        But as typical with these laws, the penalties attach to doctors not to the patients. (One of the signs that anti-abortion folks don’t really think it’s murder per se.)

        If there’s no penalty to the woman, then remorse or encouragement or a bribe or conviction are all pretty easy motivators.

        Given how abortion providing doctors have to protect themselves, I don’t think we’re that far off.

  7. Nemo Says:

    These laws, as far as I can tell, do not authorize a doctor to carry out any procedure without legally sufficient consent. I’m assuming arguendo for what follows, however, that they might give rise to the possibility of a doctor carrying out an ultrasound without *ethically* sufficient consent.

    It seems to me that the nature and extent of the ethical dilemma depends on the nature and extent of the individual doctor’s ethical obligation to carry out an abortion in the particular circumstances addressed by the law (which would generally mean the individual obligation to carry out an abortion not necessary for the life or health of the mother, and depending on the law, possibly not one where rape or incest is involved).

    Since the kind of legislation in question doesn’t compel the doctor to perform an ultrasound at all, it should always be possible for the doctor both to comply with the legislation and to avoid performing an ultrasound without ethically sufficient consent. But let’s take the case of a physician who believes ethically sufficient consent to an ultrasound is not forthcoming (but that both legally and ethically sufficient consent to an abortion is forthcoming) in an instance where this legislation conditions the carrying out of an abortion on, inter alia, the prior performance of an ultrasound. Does it not seem as though an ethical dilemma arises iff it would be unethical for the individual doctor to decline to carry out the abortion? I think that’s where this discussion could benefit from some fleshing out of the ethical framework.

    There are some limitations, of course, to discussing these laws (or any laws) in a general sense, since they could vary in potentially ethically significant ways.

  8. Bijan Parsia Says:

    Ethically sufficient consent is the problem.

    I’m also presuming that doctors have a general duty toward patients (as part of having accepted the role of doctor) and that doctors who offer abortions have acknowledged that it is a reasonable form of care. BTW, prima facie, since pregnancy is higher risk that (at least early term) abortions, it’s always necessary for some degree of health for the mother. Obviously, these are population level observations, so individual cases can vary enormously.

    You’re making it too complicated and it’s obscuring the issue: Of course, a doctor can avoid the dilemma by ceasing to be a doctor or by ceasing to perform abortions. But that’s bad for women, i.e., it leaves them without desired (and, indeed, necessary, care). Note we don’t need an obligation here, we just need that the doctor sees it as an accomplishable benefit and the lack of an abortion as an avoidable harm.

    From a professional ethics point of view, there is a fair bit of obligation not to perform unnecessary or unwanted treatments. That this one is esp. repugnant makes it worse. OTOH, it’s not a trivial need of the patients.

    Imagine there was a law that before getting an abortion you had to be punched in the face by your doctor. I presume that many women would prefer the punch + abortion than foregoing the abortion, but would obviously prefer a punch free abortion. So, do you go along with the law and become someone who punches innocent people?

    I find that very hard.

  9. xena Says:

    Yes, this does require some fleshing out. I came over here under the impression that my comment pertaining to Marcotte’s article was still up on fp. It’s been deleted, which I find extremely odd. I guess they don’t like to hear about my experiences with living on the street and watching the way actual criminals operate. That was not something I enjoyed, but something I had to understand to avoid getting killed.

    It is really difficult to communicate across these class barriers, sometimes. When I compare a crack dealer to an abortion provider who breaks the law, like I did in the deleted comment on fp, I’m not making a normative statement. I’m offering a descriptive analysis of 2 jobs that require similar steps to keep people from getting arrested (tho I find crack peddling morally repugnant, and I don’t feel the same way about a woman’s right to terminate a pregnancy. For this comparison, I’ve suspended moral judgements for the sake of trying to objectively describe behaviour in terms of *effective* and *less effective* where the goal of not getting arrested is at stake.)

    I got the same negative reaction in Ethics class when I pointed out the flaws with David Gauthier’s thought experiment, “The Prisoner’s Dilemma”, btw. (Tho in that situation, to protect myself from being stereotyped and attacked, I lied and said I was quoting sociologist Yves Lavigne’s work on the Hell’s Angels.)

    The point I was trying to make on fp was that a woman participating in an *unlawful* activity, where the burden of *guilt* would be shared, would be unlikely to turn in her co-conspirator, unless somebody were to threaten to prosecute her for not doing so, right? If an abortion provider who disagrees with the new Transvaginal Ultrasound laws were to allow a woman to break the (unfair) law, and skip the procedure, would it not be in her best interests to keep her mouth shut to avoid legal consequences herself?

    Even if it were possible to set up various sting operations in some kind of dystopian ‘War on Abortion Clinics’, to get women to rat, it would be impractical to the point of absurdity, with all of the other more pressing issues in criminal justice that require funding and manpower, no?

    • Bijan Parsia Says:

      I’m sorry you had to live on the street, but glad you’re thriving. No worries about drawing on that from me. If I miss something, please wack away.

      The point I was trying to make on fp was that a woman participating in an *unlawful* activity, where the burden of *guilt* would be shared, would be unlikely to turn in her co-conspirator, unless somebody were to threaten to prosecute her for not doing so, right?

      If the law does not penalize her, then why not?

      Frankly, I suspect most women would not, but if you were a doctor would you take the risk? If a women who was pro-choice by inclination, but got an abortion, then became convinced that it was murder, she might well turn herself and the doctor in out of guilt.

      Even if it were possible to set up various sting operations in some kind of dystopian ‘War on Abortion Clinics’, to get women to rat, it would be impractical to the point of absurdity, with all of the other more pressing issues in criminal justice that require funding and manpower, no?

      It doesn’t seem more onerous than protesting a clinic. I wasn’t thinking a police sting, just some anti-aborition activist. It’s a popular tactic on the right right now, after all.

      Plus, pulling a license is easier than criminal prosecution.

      • xena Says:

        Yes, I guess I’m a little too comfortable with the protection given to our right to choose, where I am. I forgot about those extremists. We hear all the time about the way they blow up clinics and murder doctors, but less about them harassing women on their way out of the clinics. I’m sure they harass women. All the time. They kidnap techs and attendants too.

        We haven’t had anywhere near the violence the Americans have had; a handful of break-ins and one firebombing. There have been 3 shootings with no deaths, and one stabbing attack on a doctor who had already lived through a shooting. He is still saving women’s lives, according to Wiki’s latest update. (Every last woman I’ve ever met who terminated a pregnancy did so in a clear-cut case of euthanasia or self-defense. This doctor IS NOT murdering fetuses. He is saving women. End of discussion.) The infuriating thing is that the key suspect in all 4 murder attempts is an American with specialized medical knowledge that allowed him to get close to doctors who kept a very low profile, on both sides of the border. The Americans sentenced him to life in prison for killing a doctor in Buffalo.

        Dr. Anonymous is right to stay anonymous. As far as urging doctors toward civil disobedience, I must concede that it’s not my call to make anymore, knowing what I know now about the risks.

        I do still hold Dr. Henry Morgentaler in high regard for the way his brand of civil disobedience has contributed to women’s health for the last 4 decades. He was the reason I bit back on my urge to Godwin. I had a vague recollection that he’s Polish, and about the right age to have witnessed some atrocities in his youth. Some googling turned up an even more inspiring history than I’d expected. The man survived Auschwitz AND Dachau. He then went on to bypass the anti-Semitic immigration laws of the time (yes, most Canadians are thoroughly ashamed of that history today) by lying about his age so he could sneak into Canada as an *underage* refugee. The rest is history. Cheers to our disobedient hero!

  10. swallerstein Says:

    Hello Xena:

    I’ve fallen in the role of your coach or tutor. If you find that paternalistic or bothersome, please tell me and I’ll find a new victim.

    My impression (just my impression: I’ve never talked directly to the moderators of the fp blog) is that the moderators feel that your comments might freak out
    what I might call “the marginal reading public”, that is, people who timidly approach feminism perhaps fearing that feminists eat babies or whatever and need to be reassured that feminists are not dangerous.

    The fp blog gets a lot of clicks and probably, the readers who are not convinced feminists do not comment there. Those who do comment in any given blog are not a representative cross-section of readers. So it’s not that your comments necessarily freak out the moderators themselves and those who comment habitually, but they fear that your comments may freak out the said marginal reading public. The moderators are trying, I believe, both to maintain communication within a circle of committed feminist philosophers and to reach a less committed, more tentative public.

    Your comments don’t bother me at all. I find your writing style to be entertaining and worth reading. Although I’m horribly orderly and conventional in my life style, I generally hang out with the outcasts, heretics and the misfits and have done so all my life, so things that shock or freak out conventional people seem fine to me.

    • xena Says:

      Thanks, SW. I suspected it was something like that, but never bothered to try to put it into words the way you have. Nice assessment.

      It’s kinda funny that people would perceive me as such a rabblerouser. You’d laugh if you saw me saying these things in Real Life. I go out of my way to be average-looking to avoid harassment. It doesn’t always work, but things could be much worse for me. Google Hedwig and the Angry Inch and check out Hedwig’s mom. I have a similar frausy look.

      If I am brave enough to say these things in RL, people either become completely horrified by the incongruence between their stereotypes and who I am, and they leave me alone, or they laugh and laugh, and we become good friends. There’s rarely any middle ground. I don’t like being phony around fairweather types. Shock statements work nicely to get rid of those people.

      But I do understand the position the fp moderators are in. I’m usually more puzzled than annoyed when they delete me. Very little outside of actual violence, or hatespeech offends me. I look at what they do as another opportunity to study interesting people who are unlike myself in interesting ways. Rich White Ladies are another fascinating subculture from my point of reference 😉 Every opportunity to work on my “code-switching” is appreciated.

      • swallerstein Says:

        Rich and progressive ladies or men are fascinating.

        Rich, rightwing people are frightening.

        Most rich people are white, although that is changing.

      • Nemo Says:

        SW (and Xena too), you put me in mind of Flaubert’s advice: “Be regular and orderly in your life, so that you may be violent and original in your work”!

  11. Nemo Says:

    [Bijan wrote:] Ethically sufficient consent is the problem.

    It’s at least part of the problem, but at least for the moment I’m assuming the absence of ethically sufficient consent notwithstanding the presence of legally sufficient consent. In a more fully developed discussion (or stage of a discussion) it would/will presumably be relevant to consider the requirements for ethically sufficient consent for medical procedures.

    [Bijan wrote:] I’m also presuming that doctors have a general duty toward patients (as part of having accepted the role of doctor)

    I’m inclined to agree, but the notion of a “general duty” doesn’t make it very clear what it is we’re presuming. If I’m a person facing a potential ethical dilemma, I want to know the content and object of my specific duties.

    [Bijan wrote:] You’re making it too complicated and it’s obscuring the issue: Of course, a doctor can avoid the dilemma by ceasing to be a doctor or by ceasing to perform abortions. But that’s bad for women, i.e., it leaves them without desired (and, indeed, necessary, care). Note we don’t need an obligation here, we just need that the doctor sees it as an accomplishable benefit and the lack of an abortion as an avoidable harm.

    Bijan, I don’t see that I’m externally supplying any complications to the situation. I’m trying to discern and distill some of the relevant considerations. If this seems instead to be obscuring the issue, it may be that the idea of what the issue *is* is obscuring the issue(s).

    I agree with you that a physician could avoid the dilemma by ceasing to perform abortions, but doesn’t that seem greatly in excess of what would be required to avoid the particular ethical conflict we’re talking about? After all, some abortions fall outside the scope of this kind of legislation; other cases do not require a transvaginal ultrasound; in still others, ethically sufficient consent to the ultrasound will be available, etc.

    Could you elaborate on the sentence beginning “We don’t need an obligation here”? Need in order to/for … ?

    [Bijan wrote:] Imagine there was a law that before getting an abortion you had to be punched in the face by your doctor. I presume that many women would prefer the punch + abortion than foregoing the abortion, but would obviously prefer a punch free abortion. So, do you go along with the law and become someone who punches innocent people?

    But we’ve got a perfectly good hypothetical already.

    • Bijan Parsia Says:

      Bijan, I don’t see that I’m externally supplying any complications to the situation. I’m trying to discern and distill some of the relevant considerations. If this seems instead to be obscuring the issue, it may be that the idea of what the issue *is* is obscuring the issue(s).

      The overcomplication comes from asking whether there’s a duty to provide abortions. It’s irrelevant to the actual doctors in question, i.e., those who would immediately face changing their behavior in response to the law. Hence my:

      Could you elaborate on the sentence beginning “We don’t need an obligation here”? Need in order to/for … ?

      We don’t need an obligation to perform abortions to feel that there’s a moral tension. (Perhaps “dilemma” is too strong. But it seems like a dilemma: I don’t want to perform unnecessary, humiliating, and invasive procedures on my patients. Ordinarily, that would be considered a very severe professional malconduct. However, the law requires me to do so in order to get the treatment the women wants and needs. So, do I do the unnecessary procedure?)

      But let’s lay that aside, since you didn’t mean for that to be a point.

      After all, some abortions fall outside the scope of this kind of legislation; other cases do not require a transvaginal ultrasound; in still others, ethically sufficient consent to the ultrasound will be available, etc.

      The tricky bit that I see is the fact that the woman might “consent” under this law, indeed, strongly request that the doctor perform the procedure since it’s legally necessary to get treated.

      (Abortions outside the law don’t provoke the dilemma, obviously. Let’s not get sidetracked.)

    • Bijan Parsia Says:

      Oh, the reason for other hypotheticals is to avoid some of the distractions.

      I think the dilemma is similar to a variety of dilemmas involving coercion to do wrong. I’m a bit leary to go into some of them as they could be rather triggering, but consider Williams’ one of being offered the choice of killing one person to prevent the execution of 20. The one person might “volunteer” and all the putative victims might want you to kill the one. But it does seem to be tricky to do so!

      There’s an extra complication here that the doctor has embraced a role wherein they have some obligation (and inclination) to treat patients. But I think they have a fairly strong obligation to avoid un(medically)necessary and unwanted treatment. Hence the dilemma.

      My guess is that (psychologically) the way out is to minimize the negative effects of the unnecessary procedure. Seems v. hard to me.

  12. Nemo Says:

    [Bijan wrote:] We don’t need an obligation to perform abortions to feel that there’s a moral tension. (Perhaps “dilemma” is too strong. But it seems like a dilemma: I don’t want to perform unnecessary, humiliating, and invasive procedures on my patients.

    Quite so (and our hypothetical doctor would presumably exclude abortions from that category). But if we’re going to be rigorous about elaborating the ethical principle there, it’s worth digging down a bit into the notion of necessity and its role here. For example, many procedures are regularly performed where they are not strictly medically necessary. Some of these may even be legally necessary (e.g. under the law of tort, if despite their lack of medical necessity they nonetheless constitute an accepted best practice). Perhaps the right criterion here is medical usefulness rather than medical necessity?

    Yet even that seems tricky. From what I’ve read and also have been told by several physicians, it’s my understanding that many instances of common medical procedures (whether they purport to be diagnostic or therapeutic) are of very low or even negligibly low medical utility (and that this is well known to medical professionals). And, though I’m not a doctor, it seems plausible to speculate that even an ultrasound that a doctor would not have performed but for the law is not without at least some similarly small medical utility (e.g, it could provide some confirmatory or exclusionary data). I say this not at all to argue that there is an adequate independent medical justification for the legislatively required ultrasounds (which the law doesn’t suggest either); I’m certainly not defending such laws. Rather, I’m observing that such counterexamples suggest that our hypothetical doctor may not be able to ground a consistent ethical analysis in the medical non-necessity of the sonogram.

    We could even think of instances where not only is an invasive procedure is legally required despite little or even no medical (or even non-medical) benefit to the person undergoing them, but where it is generally accepted that a doctor may perform them without ethical breach even if consent is deliberately withheld! E.g., statutorily required vaccinations (in the case of minors, where the parent/guardian does not consent) or blood tests; court-ordered forensic or similar medical procedures, etc. Again, these are not intended as analogies but as potential counterexamples that a rigorous ethical analysis from our doctor’s perspective ought to account for adequately.

    [Bijan wrote:] The tricky bit that I see is the fact that the woman might “consent” under this law, indeed, strongly request that the doctor perform the procedure since it’s legally necessary to get treated.

    If I read you correctly, what you’re getting at here is basically the notion of the ethically insufficient consent I was alluding to before: Namely, that a sufficiently strong incentive/desire for an abortion falling within the scope of this law, taken in conjunction with the law’s conditioning of the availability of such an abortion upon the prior performance of the ultrasound, might so impair the voluntariness of the consent as to render it ethically insufficient.

    This raises some interesting questions that I was hoping to postpone by simply stipulating earlier that in the hypothetical case the consent was ethically inadequate. But they’re questions that probably have to be addressed sooner or later in the ethical analysis.

    Notwithstanding my earlier rhetorical assumption, it makes sense to me that in some cases the consent would not be ethically defective. But in others it’s possible that it might be defective. The question is, how does our doctor not only distinguish the defective consents but do so in a way that is consistent with the criteria the doctor would apply to consents in other cases? Not the easiest thing, I think.

  13. jamiedreier Says:

    Wow, look at this. Nemo, Xena, and synapseandsyntax!
    No muzzles at Mitigated Frenzy. Just scary philosophers.

    • xena Says:

      Go ahead and butter me up, Jamie😉 What do you mean by “scary philosophers?”

      • jamiedreier Says:

        😉

        You and the other dangerous types who have to be moderated at FP.

        Bijan had better post a warning on the front of this blog. I mean, SW and I are well-protected by our thick, leathery skin and almost impenetrable skulls, but some naif wandering in off the street could be badly injured.

  14. xena Says:

    Oh, I think the title of Bijan’s blog should be warning enough 🙂 “Mitigated Frenzy” is the most clever oxymoron I’ve heard in awhile.

    • Bijan Parsia Says:

      I generated by a bit of automatic writing, googled it and found the hilarious quote that it is now the tagline. Hmm. I wonder where that article is…I’ll have to JStor around…

  15. Nemo Says:

    [Xena wrote:]I forgot about those extremists. We hear all the time about the way they blow up clinics and murder doctors, but less about them harassing women on their way out of the clinics. …

    We haven’t had anywhere near the violence the Americans have had; a handful of break-ins and one firebombing. There have been 3 shootings with no deaths, and one stabbing attack on a doctor who had already lived through a shooting. He is still saving women’s lives, according to Wiki’s latest update.

    The perceived difference might be skewed somewhat by the fact that Canada has less than one-tenth the population of the United States, and less than one-thirtieth its number of abortion clinics. And with the lone exception of the well-publicized shooting a few years ago of George Tiller (http://en.wikipedia.org/wiki/George_Tiller), according to the National Abortion Federation there actually haven’t been any anti-abortion murders, attempted murders or bombings in over a decade in the United States.

    • xena Says:

      I don’t know about that, Nemo. I’m inclined to side with Michael Moore on the Religion+Guns+History-of-Slavery equation. One 2003 statistic that just floored me was a study (in an archaeology textbook) that showed 47% of Americans did not believe that evolution could possibly have happened. Wow. No wonder these people think zygotes are people! Add to that the culture of violence in the US (I’m saying that slavery, racism&xenophobia are tied to this American tendency to violently overreact to shadows, not directly tied to hatreds directed at abortion providers.) and it’s rather surprising that there hasn’t been more violence against women and the doctors who help them.

      Our violence was all over a decade ago, as well. I wonder if most of it had something to do with crackpot Xtian Millenarian beliefs about some creepy legion of undead fetuses? ‘Army of God’ seems to be happy to take credit for these crimes.

    • Bijan Parsia Says:

      Eh…you need to look at the whole chart, e.g., in 2010 there were 1 attempted bombing, 22 vandalisms, 2 death threats, 2 assaults, etc.

      It’s not trivial to tease out a complete picture, but I don’t think your last sentence conveys a correct impression (indeed, it seems to understand the likely violence levels).

      • xena Says:

        I’ll have to google around to verify what percentage of those incidents happened in Canada. My experience with living in a part of Toronto where I had to walk past an abortion clinic every day on my way home suggested that those protesters at least, weren’t the violent type. I was pregnant at the time. One man very politely handed me a pamphlet, and that was the end of that. I didn’t have time to explain that I had no interest in the clinic’s services. My psiatic nerve issues were causing me too much grief to stand around arguing with people. I just wanted to get to a chair as quickly as possible.

        They saw me nearly every day and never so much as made eye contact after that, not even to try to get me to join their cause.

        Toronto had 4 or 5 abortion clinics when I lived there in the 90’s. I vaguely recall one attack on the news–I think that was the firebombing I mentioned above.

        “”Army of God’ seems happy to take credit for these crimes” seems to understa[te] the likely violence levels?

        Spend a few summer vacations in a Canadian city with a population of 100 000 to 200 000 if you have the inclination and the means, Bijan. I think you’ll notice that the situations that tend to make Americans vitriolic and trigger-happy tend to slide right off us. Canadians write letters when they’re angry. Check the stats on violence overall. Even with the lower population factored in, Americans kill and maim each other more than 5x more frequently than we do.

        As a whole, we are also far less prone to odd forms of religious militancy. We do have our odd cults, and legal mechanisms like our totalitarian Child Protection system (which I despise, btw) to deal with them, but on the whole, far fewer people up here use Xtianity as an excuse to kill.

        So when I , as an adamantly non-Xtian individual make a flip remark about a cult that calls themselves ‘Army of God’, I’m acutely aware of the violence they’re doing. I am NOT by any stretch of the imagination, paying these people a compliment. These whackjobs think that the end-times are here and any amount of violence is justifiable to keep the poor fetuses from being enslaved as ‘satan’s footsoldiers’. That line of rationalizing just makes me ill.

      • Bijan Parsia Says:

        I converted NAF’s PDF table to a Google spreadsheet, but I’m coming up FAIL for more useful viz at the moment. (These stats are UScentric.)

        Note the 1977-94 (17 years) column and the 1995-2011 (supplied by me; 16 years) column. Murders is 5 for 1977-94 and 3 for 1995-2011. Not clearly distinct.

      • Bijan Parsia Says:

        This is a reply to Nemo and the last “understand” should be “understate”. Sorry, cooking and partying all day!

        Basically, suggesting that there is little anti-abortion violence over the past decade seems to mis-state the stats.

  16. Bijan Parsia Says:

    But if we’re going to be rigorous about elaborating the ethical principle there, it’s worth digging down a bit into the notion of necessity and its role here. For example, many procedures are regularly performed where they are not strictly medically necessary. Some of these may even be legally necessary (e.g. under the law of tort, if despite their lack of medical necessity they nonetheless constitute an accepted best practice). Perhaps the right criterion here is medical usefulness rather than medical necessity?

    I’m happy with “medically indicated” or “medically useful”. I think the key point is that once the abortion itself is a go, this ultrasound serves no plausible medical purpose. It also doesn’t serve any other patient interest (i.e., in most cases it’s not about informing, but about convincing or deterring or punishing).

    (I’m not sure what “strict” medical necessity is if we’re going to be picky about it. No procedure is “necessary”, but only “necessary to some end”. After all, it may be permissible for me to forgo “medically necessary” treatment. But, “medically indicated”, “medically useful”, “rationally connected with a health promotion goal”, etc. are fine.)

    I agree that there are other goals which may require medical procedures which are not narrowly medically beneficial to the patient. I don’t think vaccinations are a good one as while there’s a public health component, generally we are all held to share in it and vaccines are directly protective and they are generally extremely low risk. People with predictably sufficiently elevated risk are generally not required to have a vaccine.

    Preventative care (and screenings) have a “statistical” benefit, rather than an immediate benefit, but I think they care beneficial.

    Similarly, people who cannot consent can be subjected to medically helpful care (involuntary psychiatric care comes to mind). That requires some work to justify of course.

    Forensic examination…hmm…is there such a thing? Wouldn’t fourth and fifth amendment protections kick in (in the US, at least)? I think things like torturing or execution would be problematic for health care workers. But, there, at least, there are some moves: criminals have diminished rights, the goal is punishment, etc. Here we have a putative goal that’s medically related, but that goal is not rationally related to the medically related ends. (I.e., it’s neither medical nor reasonably part of informed consent.)

    If I read you correctly, what you’re getting at here is basically the notion of the ethically insufficient consent I was alluding to before: Namely, that a sufficiently strong incentive/desire for an abortion falling within the scope of this law, taken in conjunction with the law’s conditioning of the availability of such an abortion upon the prior performance of the ultrasound, might so impair the voluntariness of the consent as to render it ethically insufficient.

    No! It might be ethically sufficient vis a vis the doctor but not vis a vis e.g., the state. But navigating that is tricky, cf a modified Williams example. Unlike the Williams example, a transvag echo is perfectly permissible for, e.g., curiosities sake. So a women could request one and it be fully consensual. In our case, the women and the doctor are both coerced. But I’m still tricky for the doctor to act that way.

    Perhaps its not that it’s generally wrong, but that it involves a kind of soiling of one’s actions that diminishes the moral regard you have for them or, perhaps, can diminish character traits you wish to cultivate.

  17. xena Says:

    Bijan, I assumed a typo in the bracketed portion of your last sentence, March 24@8:26 pm bc the bracketed half seems to contradict the first half of the sentence.

    “I don’t think your last sentence conveys a correct impression ( indeed it seems to understand (?) the likely violence levels.)”

    Am I assuming correctly?

    • Bijan Parsia Says:

      Yep. “understate” the likely violence levels.

      • xena Says:

        Ok, Bijan. I wasn’t sure who the reply was for.

        I hope I made my point with all my blah-blah-blah. I was just explaining why I conceded to your and AM’s position on the risks to American doctors who engage in Morgentaler-esque levels of civil disobedience. After visiting large US cities, I usually have to give my head a shake and thank Pierre Trudeau and the Lords of Liberal Humanism for the peaceful home I enjoy. My upbringing does sometimes lead to a slightly ethnocentric view of American issues, like the possibility that the Roe vs. Wade decision *may* again be overturned.

  18. xena Says:

    ‘Army of God’ is an American cult, btw.

  19. Nemo Says:

    [Bijan wrote:] I’m not sure what “strict” medical necessity is if we’re going to be picky about it. No procedure is “necessary”, but only “necessary to some end”. After all, it may be permissible for me to forgo “medically necessary” treatment. But, “medically indicated”, “medically useful”, “rationally connected with a health promotion goal”, etc. are fine.)

    I agree that there are other goals which may require medical procedures which are not narrowly medically beneficial to the patient. I don’t think vaccinations are a good one as while there’s a public health component, generally we are all held to share in it and vaccines are directly protective and they are generally extremely low risk. People with predictably sufficiently elevated risk are generally not required to have a vaccine.

    If there’s a procedural risk element to the ethical calculus, I sort of doubt it’s relevant here. We could refine the ethical premise to add something about not being unduly risky, but it wouldn’t help us here because ultrasounds are also extremely low risk.

    [Bijan wrote:] Preventative care (and screenings) have a “statistical” benefit, rather than an immediate benefit, but I think they care beneficial.

    Some preventative care doesn’t even have a statistically meaningful benefit, I’m given to understand. Or at least a benefit that is so low as to be in the vicinity of the benefit of a non-medically-indicated ultrasound for our hypothetical doctor’s abortion-seeking patient. So I’m not sure that alleviates the difficulty posed by the counterexample.

    [Bijan wrote:] Similarly, people who cannot consent can be subjected to medically helpful care (involuntary psychiatric care comes to mind). That requires some work to justify of course.

    Yes. I thought about this when I was writing earlier, although more in the context of people completely unable to communicate (e.g., comatose, unconscious or non-responsive). I decided it was too tangential, but I agree that there’s some ethical problem-solving that goes along with it.

    [Bijan wrote:] Forensic examination…hmm…is there such a thing? Wouldn’t fourth and fifth amendment protections kick in (in the US, at least)? I think things like torturing or execution would be problematic for health care workers. But, there, at least, there are some moves: criminals have diminished rights, the goal is punishment, etc.

    Compelled extractions of blood and urine, for example, are searches of one’s person within the meaning of the US Fourth Amendment (which protects against “unreasonable” searches). But like other kinds of searches, they do happen legally pursuant to warrants. There, of course, it’s truly mandatory in the way the ultrasound isn’t: if a judge orders it, you will get your blood drawn whether you express consent or not. There are also milder situations perhaps closer to the ultrasound situation where you are free not to consent to an invasive procedure (such as a blood test for narcotics), but if you don’t the law will prevent you from achieving a desired benefit or, alternatively, the law will subject you to other negative consequences.

    So far as I know, these situations have not generally been deemed problematic from a medico-ethical perspective, whether on grounds of defective consent or otherwise. All of these things happen under the presumption of innocence and usually before someone is charged with any crime; I don’t think we can say that they are the result of diminished rights. I agree that the goal there is the detection and prosecution of crimes, but I’m not sure if there’s anything special about that.

    [Bijan wrote:] Here we have a putative goal that’s medically related, but that goal is not rationally related to the medically related ends. (I.e., it’s neither medical nor reasonably part of informed consent.)

    Considering all the other things that pass for “medical”, I think I might have a bit of an uphill climb arguing that the sonogram isn’t in some sense also medical. I’m not saying it couldn’t be done. It would depend on how “medical” was defined of course. Likewise with “rationally related”, which is a pretty low bar.

    [Bijan wrote:] No! It might be ethically sufficient vis a vis the doctor but not vis a vis e.g., the state.

    I’m not sure I understand what you meant there. I was thinking of ethical sufficiency from the standpoint (at least subjectively) from the person facing a potential ethical dilemma. Aren’t we talking about whether the doctor believes he’s gotten valid consent (because if he does, his ethical dilemma doesn’t arise)?

    [Bijan wrote:] But navigating that is tricky, cf a modified Williams example. Unlike the Williams example, a transvag echo is perfectly permissible for, e.g., curiosities sake. So a women could request one and it be fully consensual. But I’m still tricky for the doctor to act that way.

    It is tricky alright. It’s not just permissible for the patient’s curiosity’s sake, either. From what I’ve read, an ultrasound is more often than not the usual practice in the cases that would be covered by the law anyway.

    [Bijan wrote:] In our case, the women and the doctor are both coerced.

    In our case, I thought we stipulated for the sake of argument that the woman was coerced. I think some additional work would be required to actually establish that premise. As for the doctor, to say that they’re coerced seems almost like begging the question of the ethical dilemma. I’d have to think some more about that.

    [Bijan wrote:] Perhaps its not that it’s generally wrong, but that it involves a kind of soiling of one’s actions that diminishes the moral regard you have for them or, perhaps, can diminish character traits you wish to cultivate.

    Just to clarify, which person is which there? Are you saying it’s a soiling of the doctor’s actions that diminishes the moral regard we have for them?

    • xena Says:

      Nemo, the point here is that the ultrasounds can be done with equipment that only touches the lady’s abdomen&upper bikini line. There’s no need to put her in stirrups and cram things into her vagina, to put it bluntly.

      To elaborate on your psychiatric care example, this is akin to prescribing electroconvulsive shock therapy where a mild dose of Paxil would suffice.

      • Nemo Says:

        Right, Xena, I totally get that. The laws and proposed laws don’t (so far, anyway) actually say anything about what kind of ultrasound should be used. We’ve just going on the the presumption that if a doctor couldn’t get a usable image by a topical ultrasound for whatever reason (e.g. first few weeks of pregnancy), the law could be interpreted to require resorting to a transvaginal ultrasound.

    • Bijan Parsia Says:

      If there’s a procedural risk element to the ethical calculus, I sort of doubt it’s relevant here. We could refine the ethical premise to add something about not being unduly risky, but it wouldn’t help us here because ultrasounds are also extremely low risk.

      All medical judgement involves risk/benefit analysis. The benefit might be diffused (e.g., in preventative cases, the benefit might only be probable), but it is there. So vaccination is governed by such reasoning: If the benefits are insufficient to the risk in some case, the doctor won’t perform it.

      Some preventative care doesn’t even have a statistically meaningful benefit, I’m given to understand.

      I’m not sure what makes it “preventative” then. What is it “preventing” if it doesn’t have a statistically meaningful benefit? (There’s lots of uncertainties, of course, so there could be persistence of practices even after they’ve been shown to be unnecessary. But that’s different, I’d say, than establishing a requirement of a known unnecessary practice.)

      Or at least a benefit that is so low as to be in the vicinity of the benefit of a non-medically-indicated ultrasound for our hypothetical doctor’s abortion-seeking patient. So I’m not sure that alleviates the difficulty posed by the counterexample.

      At some point, facts have to matter, yes? If transvag ultra had some medical benefit before arbitrary early abortions, then I think, prima facie, the medical profession would have embraced it. There’s no such evidence.

      I’m not sure I understand what you meant there. I was thinking of ethical sufficiency from the standpoint (at least subjectively) from the person facing a potential ethical dilemma. Aren’t we talking about whether the doctor believes he’s gotten valid consent (because if he does, his ethical dilemma doesn’t arise)?

      I think the dilemma arises even if the doctor thinks they’ve gotten some sort of consent.

      I’ll start a fresh post on this.

  20. xena Says:

    Happy New Year, Bijan. I hope spring is as beautiful where you are as it is where I am.

    All I know about Noruz is what I read on your About Bijan page, and the links you offered. I hope this discussion isn’t putting an awful downer on your celebrations. Go ahead and tell us to get lost until tomorrow or a few days from now, if this discussion contradicts what your Special Day is all about.

  21. Nemo Says:

    [Bijan wrote:] Eh…you need to look at the whole chart, e.g., in 2010 there were 1 attempted bombing, 22 vandalisms, 2 death threats, 2 assaults, etc.
    It’s not trivial to tease out a complete picture, but I don’t think your last sentence conveys a correct impression (indeed, it seems to understate the likely violence levels).

    Oh, I looked at the whole chart. But hands up everyone who is surprised by the top three lines – murders, attempted murders, and bombings – which are the most serious felonies on the list (and the ones most relevant to Xena’s previous remark about “We hear all the time about the way [extremists] blow up clinics and murder doctors”).

    I know I’m not the only one with a hand up.

    I entirely agree with Xena’s quoted remark there, by the way. I can only attribute my own considerable surprise to my having internalized certain narratives that led me to have what I now suppose was an overstated view of the phenomenon of abortion clinic violence in the United States. (Other people’s results may vary.) The rest of the chart keeps me, I think, from swinging too far in the other direction (i.e. having an understated view).

  22. Nemo Says:

    Oh yes, and happy new year too!

  23. xena Says:

    Why would the state require some kind of an image of a blob of cells, Nemo? The blastocyst doesn’t even attach itself to the uterine wall until about the 7th day after conception.

    The embryo can’t even be differentiated as “animal” (rather than vegetable or insect) until around the third week. By then it looks like a Sea-Monkey Alien, but *might* actually have the cognitive apparatus to feel pain. At this stage, special (and expensive) magnifying equipment is required to see the thing at all.

    The embryo is barely one inch long by the 7th week of pregnancy. Does such a tiny creature even show up on an ultrasound–transvaginal or otherwise? Ultrasound technology is much more advanced now than it was when I had my kids, but back then they didn’t do ultrasounds before 16 weeks unless something was wrong. My tech told me that the fetus would be too small to get an accurate image before 12 weeks.

    http://www.bartleby.com/107/15.html

    Also, before 8 weeks, an embryo can be expelled non-surgically from what I understand. But let me google RU486 to verify that. I’ve only ever gone so far as to take a “morning after pill” to deal with an accident. My clinic told me that the time-limit for that was 72 hours.

  24. Nemo Says:

    This comment ended up in the moderation queue, as have many of my own. After a certain density of links it gets held automatically. It may take me a while to notice. Feel free to give me a kick if that happens. –Bijan.

    Xena, I don’t want to generalize, since the legislative texts could vary from state to state, but one law I’m somewhat familiar with (it was the topic of a FP thread) is Virginia’s. Here’s the relevant part:

    At least 24 hours before the performance of an abortion, a qualified medical professional … shall perform fetal transabdominal ultrasound imaging on the patient undergoing the abortion for the purpose of determining gestational age. … The ultrasound image shall contain the dimensions of the fetus and accurately portray the presence of external members and internal organs of the fetus, if present or viewable. Determination of gestational age shall be based upon measurement of the fetus in a manner consistent with standard medical practice in the community for determining gestational age. When only the gestational sac is visible during ultrasound imaging, gestational age may be based upon measurement of the gestational sac

    So it apparently contemplates that you might not see much. There are other important parts of the text, but that’s the part that addresses what’s on the image.

    Now, the kicker in Virginia was that the following language sentences ended up being added before the bill was signed into law recently (but some laws or proposed laws in other states do not have similar language):

    If gestational age cannot be determined by a transabdominal ultrasound, then the patient undergoing the abortion shall be verbally offered other ultrasound imaging to determine gestational age, which she may refuse.

    Source: http://leg1.state.va.us/cgi-bin/legp504.exe?121+sum+HB462

    I understand that the first thing that can be detected by ultrasound (of any sort) in the mother is a gestational sac. According to one site I saw:

    Transabdominal ultrasound cannot reliably diagnose pregnancies that are < 6 weeks' gestation. Transvaginal ultrasound, by contrast, can detect pregnancies earlier, at approximately 4 ½ to 5 weeks' gestation.

    Source: http://www.prochoice.org/education/cme/online_cme/m4ultrasound.asp

    In Virginia, the reason the law (when it was still a bill) got associated with transvaginal ultrasounds comes from the supposition that since there is a window of time (although apparently not a big one) in early pregnancy when you can see the gestational sac on a transvaginal ultrasound but not yet on a transabdominal ultrasound, if someone wanted to have a doctor perform an abortion when the gestational sac wasn’t visible transabdominally, the law might make the abortion conditional on a transabdominal ultrasound. After the bill was amended, of course, it was then absolutely clear that a transvaginal ultrasound was not an issue, But in a different version of an ultrasound law somewhere else, it could conceivably be.

    It seems to me that the doctor’s easiest general way around that (to the extent it came up) would be to wait until 6 weeks or so when you could detect the gestational sac transabdominally. Most surgical abortions are not performed before that time anyway, and if you’re our hypothetical doctor wondering about a possible ethical dilemma, I think it would seem like an appealing alternative to breaking the law.

    The law in Virginia, by the way, doesn’t seem to apply to non-surgical abortions, since the code appears to use the term “causing a miscarriage” for those while reserving the term “performing an abortion” for surgical abortions.

  25. xena Says:

    Interesting. RU486 is unavailable in Canada bc a woman died during the trials in 2001.

    It’s still available in the US, but with a long list of warnings about the side effects and complications, especially after the 7th week of pregnancy. It is not recommended for terminating pregnancies past the 9th week. 20+% of pregnancies in the 8th and 9th weeks will not terminate with these 2 drugs. Surgical procedures are required in the event that this happens. A small number of women, around 1% choose to allow their pregnancies to continue. Around 1/3 of these babies are born with Moebius Syndrome, and many more are born with other birth defects.

    A pelvic exam (manual, I believe) is required to make sure that it is not past the 49th day since the woman’s last period. It appears that in borderline cases, the transvaginal ultrasounds *might* (Dammit Jim, I’m an anthro geek, not an obgyn ;)) actually be required to determine the precise age of the embryo.

    However, I still feel that transvaginal ultrasounds are too invasive to be a requirement for everybody, if a manual exam will do. *See my above comparison to electroshock therapy vs. Paxil.

    • Bijan Parsia Says:

      Xena,

      The problem with the VA law is that it required the ultrasound for no other reason than (nominally) informed consent. Note that it wasn’t required merely to offer the ultrasound; the ultrasound itself was required (although the women was not required to look at it, which, natch, makes a mockery of the nominal rationale).

      You could, of course, wait until the pregnancy was far enough along that the transvag was not required (as Nemo suggests). But frankly, that’s not a real loophole. That’s just a sucky choice. There’s no medical reason to delay care.

  26. xena Says:

    @Nemo March 25, 4:03am

    Agreed. I didn’t know there was a choice involved. RU486 can still be taken in the 6th week of pregnancy.

    So what’s all the ranting about if women are being offered a choice where their ultrasounds are concerned?

    • Nemo Says:

      Well, the final version Virginia law (after the intervention of the Governor) ultimately indicated that a transabdominal ultrasound would always satisfy the law. But the earlier version of the bill did not, and the ultrasound bills/laws in at least some other states apparently do not. So I think the ambiguity – and thus the possibility that in some cases, at some early stages of pregnancy, a transabdominal ultrasound would not yield an image that would satisfy a particular state’s ultrasound law – is the cause of the furor. Totally understandable, even though I haven’t heard of any such law or bill that explicitly *prescribes* a transvaginal ultrasound in any circumstance.

      But the more I think about it, the more it seems to me that I was not focusing in the beginning on a significant fact. Even if we hypothesize a law that would condition a surgical abortion on the prior performance of a transvaginal ultrasound if a noninvasive ultrasound can’t yet pick up anything, all pregnancies pretty quickly develop to the point where they can be shown by noninvasive ultrasounds.

      So mother nature has provided a fairly serviceable inherent loophole to such laws. Even under a relatively strict ultrasound law with no opt-out, what’s the longest someone seeking an early surgical abortion would have to postpone it in order to avoid an unwanted transvaginal ultrasound? An extra two or three weeks, maybe four if they’ve involved their doctor exceptionally early? And if there’s a health reason that would make waiting even a couple of weeks risky, the laws wouldn’t apply anyway, since (I think) they all have health exceptions.

      The inherent availability of this “loophole” doesn’t magically make ultrasound laws good public policy, of course, but I wonder if that anonomous doctor stopped to consider it before issuing the dramatic call for widespread civil disobedience.

  27. Nemo Says:

    Bijan,

    I perceive a real difficulty with arguing that an ultrasound law’s failure to require that the patient look at the ultrasound “makes a mockery” of an informed consent rationale. After all, this is consistent with how informed consent works generally (whether in medical or non-medical settings); i.e., patients are not required to accept or digest information that the doctor is disclosing. Doctors have a duty to make information available in a suitable form and offer the opportunity to have questions answered. A patient can always cut the doctor’s speech off, plug their own ears, decline to look at informational documentation, and so forth.

    From time to time it’s been argued that patients should not be permitted to waive their informational rights, or that they have some positive duty to accept information. But that is not the prevailing legal or deontological understanding of how informed consent works. So if your argument there is correct, there’s a much vaster problem for the healthcare field (and probably numerous other sectors where informed consent rights apply) than just this law.

    Turning back to the text of the Virginia law, I think we can say that the most direct and specific nominal rationale for the ultrasound is as an aid in verifying the gestational age (even in its initial version, it provided that the healthcare professional “shall perform fetal ultrasound imaging … on the patient undergoing the abortion for the purpose of determining gestational age”).

    Now, this fits into the law’s informed consent framework because a different clause indicates that informed consent requires disclosure of the gestational age. So it’s one of the things that the law says the doctor ought to know (based on diagnostics that do not omit an ultrasound), even if the doctor ought to know it just to be able to tell the mother. Of course, it’s plausible to me (speaking as a non-physician) that perhaps the doctor ought to verify it not just for the patient’s information but for the doctor’s information, too, and I presume that one of these two potentially overlapping reasons accounts for why it appears (from what I’ve read) that it’s already a widespread medical practice absent ultrasound laws. Over on FP I mentioned that there was a sad Virginia case a few years ago where the doctor’s failure to use ultrasound in assessing gestational age was found to be a causal factor in precipitating a serious medical crisis mid-abortion.

    But anyhow, to sum up, I think the problems with the Virginia law (at least its original version) don’t inhere in the fact that it linked the ultrasound to informed consent.

    • Bijan Parsia Says:

      I perceive a real difficulty with arguing that an ultrasound law’s failure to require that the patient look at the ultrasound “makes a mockery” of an informed consent rationale.

      No, you don’t. This isn’t even a prima facie difficulty.

      After all, this is consistent with how informed consent works generally (whether in medical or non-medical settings);

      No, it isn’t. Normally, you don’t have to undergo a procedure that does not provide information to the doctor.

      i.e., patients are not required to accept or digest information that the doctor is disclosing.

      You think that if I were to say, “So, what you’re saying, Mr. Fancy Pants Doctor, that after you cut my foot off, not only will I grow a new one in about a week, but I’ll be able to dance like Fred Astaire?! Great! Cut me.”, that the doctor would proceed with the amputation? I don’t think so.

      The patient typically has to indicate that they understand the supplied material. There are presumptions about what is a reliable indicator of understanding. But saying, “I refuse to read this pamphlet or learn any of the facts that normally are required to make an informed decision” will not be acceptable.

      In any case, this doesn’t involve undergoing a procedure. If the women says, “I won’t look at the ultrasound”, then how is performing the ultrasound part of an informing process.

      What possible rationale is there for gathering this information if the patient has already refused it.

      Doctors have a duty to make information available in a suitable form and offer the opportunity to have questions answered. A patient can always cut the doctor’s speech off, plug their own ears, decline to look at informational documentation, and so forth

      I cannot stress enough how off base this whole line is. The situations are only analogous if you ignore the crucial fact of HAVING TO UNDERGO A PROCEDURE TO GENERATE INFORMATION THAT NEITHER THE DOCTOR NOR THE PATIENT WILL USE.

      Since the doctor will not use it, it’s not medically necessary. Since the patient will not (by stipulation) use it makes it irrelevant to informed consent. There’s no reason to undergo the procedure.

      If the law required offering to perform an ultrasound if the women would like the information that seeing the results would give her before making the decision, then it fits in with an informed consent framework. Heck, it could even be medically helpful in helping make the patient comfortable with her decision.

      But the law, as it was written, in that provision, is literally making a mockery of informed consent. It is pretending to be supporting informed consent while explicitly vitiating that pretence.

      I’ve no idea why you fail to see that.

  28. xena Says:

    Actually, Bijan, I’m beginning to see just how brilliant this law is. The only thing it’s “making a mockery of” is partisan politics. The Virginia state legislature has built in the perfect loopholes to allow both sides to continue their rhetoric, without changing much in practice, where a clever and liberal doctor is the tool for implementation.

    Assuming that the point of the outrage is to protect already injured women from further humiliation:

    1) It makes sense for a woman who has just been raped (or had an accident with a condom) to go immediately to a clinic for an examination. The “morning after pill” can be prescribed the same day. Between 2 and 72 hours after conception, even a transvaginal ultrasound would be useless, bc they’re looking for a microscopic zygote up in a woman’s fallopian tube.

    2) Women will often go through a period of denial after an assault or otherwise damaging sexual experience, so some may not go to a clinic immediately. A missed period is often a good dissonance disruptor. Many will go to the clinic 28 to 32 days later, with the results of a home pregnancy kit in hand.

    So that only leaves a 10-14 day window where the ethical dilemma would apply. All the doctor has to do is tell the woman that the sucky law says x, but nature has given her the perfect loophole. Come back in 10-14 days for an external ultrasound and a dose of RU486, which can still be administered in the 6th week of pregnancy.

    I’m leaning toward siding with Nemo, now, at least as far as the Virginia laws are concerned. The other states’ laws may still be a different matter.

    I’m going to check out another blogger, a medschool student, to see if s/he wants to drop by with a little more biomedical expertise than this little troop of “scary philosophers” has to offer🙂

    • Bijan Parsia Says:

      Well, as I object to any unnecessary ultrasound, this strategy mitigates but does not eliminate the problem. Indeed, the law speccing only abdominal ultrasound does a similar ob.

      But the “come back” problem is often difficult for poorer women (hence the objectionability of waiting periods as well). (Esp. if there’s significant travel involved, but also it can be difficult to get off work, etc.) It can also unnecessarily add to the distress. The women may have to pay for the procedure (or go again elsewhere for one).

      While rape victims are an obviously outrageous category of women affected, I certainly don’t think it’s ok to do this to any women. I think it’s different in kind to my outrage against all the crazy abortion barriers (e.g., waiting periods). I am outraged at the restriction of abortion. I am additionally outraged at the imposition of a unnecessary medical procedure (though waiting periods hit a bit of that too). I’m again outraged at the mocking of informed consent. Mucky with actual medical procedures are a pretty bright line for me.

      So, I think I’ll remain outraged.

      • Nemo Says:

        Would anyone have to come back? Why couldn’t the clinic determine when setting up the initial appointment whether there was a reasonable likelihood that the appointment would occur when the woman was less than 6 weeks pregnant, advise her that that might possibly trigger a requirement of having a transvaginal ultrasound two hours before having a surgical abortion, and then schedule things according to the responses? If I were a doctor or clinic operator concerned about mitigating the negative consequences of complying with the law, I think that’s what I’d do.

        With regard to rape, I note that the law states that it “shall not apply if the woman seeking an abortion is the victim of rape or incest, if the incident was reported to law-enforcement authorities.”

        • Bijan Parsia Says:

          Would anyone have to come back? Why couldn’t the clinic determine when setting up the initial appointment whether there was a reasonable likelihood that the appointment would occur when the woman was less than 6 weeks pregnant, advise her that that might possibly trigger a requirement of having a transvaginal ultrasound two hours before having a surgical abortion, and then schedule things according to the responses? If I were a doctor or clinic operator concerned about mitigating the negative consequences of complying with the law, I think that’s what I’d do.

          I don’t really know what to say.

          If you think it eliminates the “come back” problem to systematically delay care on the basis of a phone consult when there is no medical reason to do so (instead of substituting a different objectionable problem), then I guess we don’t have any common ground.

          If you just mean that this is the best evil of the lot, ok, I guess. That’s certainly not the picture I’m getting. From this, the violence stats, the treatment of informed consent, and the malpractice examples, I don’t see how to have a fruitful discussion.

  29. xena Says:

    If what you’re saying, Bijan, is that the laws are designed to force the woman to look at the ultrasound pictures of her baby so she’ll feel some kind of guilt or love for the unborn and maybe change her mind, or live with the scars, that doesn’t seem to be reflected in the wording of the law.

    It appears that the law is designed solely for determining gestational age, to avoid accidental injury to the woman as a result of prescribing the wrong abortion procedure.

    • Bijan Parsia Says:

      If what you’re saying, Bijan, is that the laws are designed to force the woman to look at the ultrasound pictures of her baby so she’ll feel some kind of guilt or love for the unborn and maybe change her mind, or live with the scars, that doesn’t seem to be reflected in the wording of the law.

      Well, the bits about feeling some sort of guild/love/etc. aren’t explicit. natch. But,

      It appears that the law is designed solely for determining gestational age, to avoid accidental injury to the woman as a result of prescribing the wrong abortion procedure.

      is not sustainable. The law:

      Abortion; informed consent. Requires that, as a component of informed consent to an abortion, to determine gestational age, every pregnant female shall undergo transabdominal ultrasound imaging and be given an opportunity to view the ultrasound image of her fetus prior to the abortion.

      There’s nothing about getting the right treatment. No medical organization thinks it has anything to do about getting the right treatment.

      Generally, you don’t determine medical facts or recommendations as a component of informed consent. You determine medical facts and form recommendations then inform the patient of their recommended and possible options.

      (This version of the law focuses on transadominal ultrasound. This was the “compromise”. It’s less horrible but still, I think, wrong. Cf the new post.)

      I can’t at all see where my reading is off in the way you state.


      • “…be given an opportunity…” are the key words. There is no explicit ultimatum, no consequences stated. Refusal of the abortion is *not stated* as a consequence of the woman’s refusal of the “opportunity” to view the ultrasound image. Therefore, I am inclined to conclude that the woman is permitted to refuse the “opportunity”, and also still permitted to terminate her pregnancy.

        “…to determine gestational age…” seems to be the issue here, as prescribing the wrong abortion procedure could kill the woman.

      • Bijan Parsia Says:

        “…be given an opportunity…” are the key words. There is no explicit ultimatum, no consequences stated.

        Yes there is. Informed consent is a legal requirement of treatment. To treat, even for the benefit of the patient, without informed consent generally is medical battery (see the links in the next post). Thus,

        Requires that, as a component of informed consent to an abortion, to determine gestational age, every pregnant female shall undergo transabdominal ultrasound imaging

        means that there is no legal abortion without the ultrasound. Now, admittedly, the women would not be punished, qua victim of battery. But the doctor would be. Targeting the doctor is standard in antiabortion law.

        “…to determine gestational age…” seems to be the issue here, as prescribing the wrong abortion procedure could kill the woman.

        I really think this is a red herring. If a procedure has significant risks that are sensitive to the gestational age, then, of course, a doctor must make an appropriately precise determination of gestational age. But the law is not necessary to secure that (it’s covered by normal patient care regulations). Similarly, that’s not part of informed consent, but of medical practice.

  30. Nemo Says:

    [Bijan wrote:] No, it isn’t. Normally, you don’t have to undergo a procedure that does not provide information to the doctor.

    Even assuming for the purposes just of this paragraph that this is a procedure that doesn’t provide information to the doctor, that’s not relevant to my point there. You suggested that the fact alone, that the patient wasn’t required to view the ultrasound, instead of being required to view it, made a mockery of the informed consent rationale. But a patient is never required to view an ultrasound regardless of how much or how little information it would convey, or to whom, so I don’t see how that argument works without some elaboration or modification.

    [Bijan wrote:] You think that if I were to say, “So, what you’re saying, Mr. Fancy Pants Doctor, that after you cut my foot off, not only will I grow a new one in about a week, but I’ll be able to dance like Fred Astaire?! Great! Cut me.”, that the doctor would proceed with the amputation? I don’t think so.

    I’m not sure there’s a need to address that extreme hypothetical, and I’m not sure that there’s enough detail to do so adequately. Other considerations seem to arise there, such as whether the patient is competent to give either consent or a waiver of informed consent.

    [Bijan wrote:] The patient typically has to indicate that they understand the supplied material.

    Perhaps surprisingly, no, at least not in the United States. A competent patient may waive their right to informed consent in whole or in part, in which case they need only indicate that they understand the right that they are waiving. In such a case, they will generally have to sign an additional waiver document as well as a consent form. It usually doesn’t come up, but it does come up.

    Of course, depending on the facts and circumstances, a particular doctor might feel like declining to perform a particular procedure in this situation and referring to another physician, or to take additional measures such as consulting with the hospital’s or the state’s ethical committee, particularly in a speculative case where the patient did not wish to learn *any* of the facts that are normally required in order to give informed consent. But that hypothetical is not very apposite here, if we’re only talking about a patient’s declining to view an ultrasound.

    [Bijan wrote:] In any case, this doesn’t involve undergoing a procedure. If the women says, “I won’t look at the ultrasound”, then how is performing the ultrasound part of an informing process.
    What possible rationale is there for gathering this information if the patient has already refused it.

    But the patient’s refusing to look at the ultrasound image is not the same as the patient’s refusing all information derived from the ultrasound. Are we now hypothesizing a patient who says “Doctor, even if I agree to letting you do the ultrasound, I’m putting you on advance notice that not only am I not willing to view it, but I don’t want you to tell me whether it confirms or changes your view of how far along I am in the pregnancy, and I don’t want you to tell me if you see a possible cyst on the image, or anything like that”?

    [Bijan wrote:] I cannot stress enough how off base this whole line is. The situations are only analogous if you ignore the crucial fact of HAVING TO UNDERGO A PROCEDURE TO GENERATE INFORMATION THAT NEITHER THE DOCTOR NOR THE PATIENT WILL USE.

    I’m not really analogizing the situations; again, it’s more of a counterexample to what I perceived as one of the implied premises of the argument that the mere failure of the law to require the patient to view the ultrasound image, by itself, makes a mockery of informed consent. But this is helping us tease out a more refined version of the argument.

    [Bijan wrote:] Since the doctor will not use it, it’s not medically necessary. Since the patient will not (by stipulation) use it makes it irrelevant to informed consent.

    By stipulation, the patient will not *view* the image. I’m not sure why we should stipulate that the doctor will not use it (in fact the law directs the doctor to use it), and thus not sure why we should stipulate that the patient will not indirectly use it.

    • Bijan Parsia Says:

      I’m surprised we’re still arguing this. Oh well.

      Even assuming for the purposes just of this paragraph that this is a procedure that doesn’t provide information to the doctor, that’s not relevant to my point there.

      Sure it is. If the procedure is medically indicated and the patient consents to it, then it’s ok. Some of the information the doctor gets may be helpful or essential to informed consent on next steps. A law that required giving a patient the opportunity to view (or simply, requiring viewing) ultrasounds that were ordered for a medical purpose wouldn’t arouse my same objections. It would also be much closer to normal informed consent/patient information access procedures.

      But a patient is never required to view an ultrasound regardless of how much or how little information it would convey, or to whom, so I don’t see how that argument works without some elaboration or modification.

      Because the only rationale for undergoing the procedure is informing. If the women is refusing to view it, the procedure isn’t required in order to obtain informed consent.

      I’m not sure what’s not clear about this.

      As for your hypoethical:

      Are we now hypothesizing a patient who says “Doctor, even if I agree to letting you do the ultrasound, I’m putting you on advance notice that not only am I not willing to view it, but I don’t want you to tell me whether it confirms or changes your view of how far along I am in the pregnancy, and I don’t want you to tell me if you see a possible cyst on the image, or anything like that”?

      Cyst? Really? Are you freaking kidding me?

      Sorry Nemo, this is too much break down for me. Engagement at what seems to be your preferred level of detail doesn’t seem to help. My new strategy is just to stop when it’s not working for me. I think it’s pretty obvious why your scenario contains unnecessary detail. I think it’s pretty obvious why getting down to that level of detail isn’t productive. I also think I’ve been sufficiently clear about the components of the requirement which I believe are antithetical to the requirement being properly part of informed consent. I think it’s clear that there are structurally related scenarios wherein an ultrasound or precise determination of gestational age would be part of proper care, but that’s pretty much irrelevant.

  31. swallerstein Says:

    Can I say something about informed consent which may sound cynical?

    The average person cannot read and understand a paragraph from, say, the New York Times. So signing informed consent means in reality, for most people, signing something that the person does not understand.

    I myself have had surgery twice in recent years and I signed countless forms without reading them and without receiving a full explanation from my doctors (although I did look up procedures in internet, since the Mayo Clinic explains things better than most doctors can).

    Given that most people will not look go whatever surgery they will undergo online and even if they do look it up, will not understand it and in addition, that a woman with an unwanted pregnancy is often pressured by the circumstances, where are we?

    • xena Says:

      SW, I guess we’re back at the point where *some* barely literate women/girls will be refused abortions because of their refusal to look at their ultrasounds, and misunderstanding why, will show up in emergency rooms later, dying of peritonitis and/or poisoning due to botched self-administered surgeries.

      I guess informed consent won’t matter in those cases.

    • Bijan Parsia Says:

      I don’t think it’s cynical…it’s a standard issue, afaik. Even putting aside reading comprehension, people are notoriously bad at understanding risk, doctors are often bad at explaining things, people are under stress, etc.

      Since I don’t think this law is really about improving informed consent, I don’t think the standard difficulties involved with informed consent play in.

      An informed consent law I could get behind would be e.g., the establishment of a government sponsored website with “clear language” standard explanations (in various languages) that was tracked for effectiveness, requirements to take refresher classes on IC techniques every X years, supporting research into explanation forms, etc.

      • swallerstein Says:

        Right.

        Googling, I’ve found that the NHS website gives good standard explanations on medical procedures and conditions. It’s a U.K. plus, along with the BBC.

  32. Nemo Says:

    OK, Bijan, I withdraw the hypothetical (I think I may have been channelling the spirit of the prospective-amputee-Astaire-wannabe hypothetical). I’ll rewind a step and dial back a level.

    You asked what possible rationale there is for gathering this information if the patient has already refused to use it. My response was to point out that the patient hasn’t already refused to use the information gathered by the ultrasound in our stipulated scenario, she has merely refused to view the ultrasound image, which strikes me as not being the same thing.

    Note that the law doesn’t contemplate that the information that might be conveyed to the patient through the patient’s own viewing of the image is necessary to informed consent. Rather, it codifies a threshold of informed consent that includes a statement of gestational age *where the doctor’s assessment of the same is backed up by a confirmatory ultrasound*. What is the relevance to this of whether the patient views the image or not? I don’t see any, but your previous statements suggest that you think that whether or not the patient views the image is important to the informed consent analysis.

    [Bijan wrote:] Because the only rationale for undergoing the procedure is informing. If the women is refusing to view it, the procedure isn’t required in order to obtain informed consent.

    Let’s assume the only rationale for the procedure is informing the patient. (I believe that’s not an airtight assumption but I don’t want to get into that until I clarify the following.) Do you agree that it is not necessary for the patient to view the image herself in order to be informed by the results of the procedure?

    • Bijan Parsia Says:

      OK, Bijan, I withdraw the hypothetical (I think I may have been channelling the spirit of the prospective-amputee-Astaire-wannabe hypothetical).

      You were channeling a sarcastic expression of exasperation and frustration?

      You asked what possible rationale there is for gathering this information if the patient has already refused to use it. My response was to point out that the patient hasn’t already refused to use the information gathered by the ultrasound in our stipulated scenario, she has merely refused to view the ultrasound image, which strikes me as not being the same thing.

      Let us agree that gestational age is relevant to properly performing abortions. There are a variety of techniques for doing so ranging from counting to examination to hormone tests to ultrasound. The medical profession, to my knowledge, does not think ultrasound is required for all abortions in order to provide a proper standard of care. The most that informed consent could possibly require are that the risks of the procedure relative to the possible inaccuracy of the estimation technique are disclosed and that the possibility of lowering those risks by an alternative more accurate procedure is available.

      In no version of this is viewing the ultrasound improving the informing (i.e., of the nature of the procedure or the risks). In no version of this is performing the ultrasound itself improving the informing (it may improve the risks, but improving the risks is part of care not part of informing).

      The fact that viewing the image is including as part of informing is indicative of purpose. The fact that the law mandates a certain form of care not under standards of care but under informed consent is also revealing.

      The fact that mandating this sort of standard of care in law is very unusual and fraught (what if better estimation methods come along?, etc.) is also clearly problematic.

      It doesn’t matter if the people who made this law have convinced themselves that this is an appropriate standard of care or an appropriate means of ensuring that standard of care or that it is part of informed consent or whether they are knowingly cynical abou it.

      Let’s assume the only rationale for the procedure is informing the patient. (I believe that’s not an airtight assumption but I don’t want to get into that until I clarify the following.) Do you agree that it is not necessary for the patient to view the image herself in order to be informed by the results of the procedure?

      Regardless of whether it is strictly necessary, it’s clear that the law gives great weight to the viewing. That we are in the unusual position of having a very specific law about a very specific component of informed consent (e.g., the image must be retained forever, etc. etc.) indicates that the law is predicated on the believe that the viewing is a significant component of the informing. If it weren’t, they wouldn’t have all that detail, but merely talk about the information to be conveyed (i.e., gestational age).

      The text of the law is going to massaged to try to slip by legal, political, and moral objections, so I don’t at all think fine grained parsing is helpful. If the law manages to just barely avoid being technically objectionable by a strict standard by their hacking it, it’s spirit is still clear.

  33. xena Says:

    @Bijan, March 25, 10:40 pm. It’s not a red herring. I’ll have to flip back through some of these links to point out exactly where this info came from. Somebody has died recently in Virginia as a direct result of an abortion.

    Gvts. are always tinkering with laws after somebody dies, to cover their asses against lawsuits. That’s why I said that determining gestational age, and not guilt-tripping women with forced ultrasound viewings seems to be the purpose of this legislation.

    The wording is tricky enough that doctors could interpret it either way. But the beautiful thing is that licensing committees, if a doctor were to be reviewed, could also interpret the law either way.

    I can grasp the logic behind your interpretation, but my lessons on placing modifiers taught me a different way of breaking statements down. Informed consent is contingent on knowing the gestational age of the fetus, and what that entails in terms of agreeing to this abortion or that. “Opportunities” are voluntary.

    • Bijan Parsia Says:

      Sorry Xena, I’m pretty sure it is a red herring.

      These sorts of law are part of a pretty explicit anti-abortion legal strategy. That there was some event that formed a useful pretext is really not germane to understanding what’s going on. The 24hour waiting period is a clue as well.

      I found these guidelines illuminating, in particular:

      2. Determine gestational age by:

      (a) bimanual pelvic examination to ensure the uterine
      size is consistent with dates; and

      (b) ultrasound when the GA is questionable or an
      intra-uterine gestation is uncertain, and in all cases
      of second trimester procedures.

      (Notice that it’s in a separate section from informed consent.)

  34. xena Says:

    Oops. Paragraph 2 should read “gvts. are always tinkering…to cover somebody’s ass against lawsuits.”

    • xena Says:

      Bah. The second last line should read “…agreeing to this abortion procedure or that…”

    • Nemo Says:

      Xena, here are the actual disciplinary reports from two relevant Virginia cases (there may be others) involving dangerous errors in guessing gestational age in the absence of pre-abortion ultrasounds:

      1. http://www.jillstanek.com/wp/wp-content/uploads/2012/02/Abofreka1.pdf

      2. http://www.jillstanek.com/wp/wp-content/uploads/2012/02/myk-1999.pdf

      Disclaimer: these documents are hosted on what looks to be a strongly anti-abortion site, but the links are just to the official documents themselves.

      I agree with you that it’s very likely the Virginia legislature was bearing such cases in mind, even though I’m sure there were other agendas at work too.

      • Bijan Parsia Says:

        I’m pretty skepical about those and esp. think your characterisation “involving dangerous errors in guessing gestational age” is really off. Alternative estimation methods aren’t guessing any more than using the ultrasound. They are all estimation techniques and have ranges of error, including due to operator or interpreter issues. Ultrasound isn’t a magic oracle of gestational age and the other methods aren’t random guessing.

        In the first one, note that point 3 says:

        Dr. Abofreka performed abdominal ultrasounds (sonograms) on Patient B every month of her pregnancy from on or about October 2004 through on or about February 2005 without a medical or therapeutic purpose.

        Seems relevant.

        Finally, clearly these show that a specific law is probably unnecessary. I trust why is evident.


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