More on the Doctor’s Dilemmas

March 25, 2012

Trying again.

Let’s stipulate the following case:

  1. A women seeks an abortion.
  2. There is a law in force which requires an ultrasound+24 hour waiting period for “informed consent”.
  3. The women does not need to see the ultrasound, but must endure it (and perhaps pay for it; the law does not provide funding).
  4. The women will not look at the results, even if she undergoes the ultrasound.
  5. The women’s pregnancy is early enough than a transvag ultrasound is required to comply with the law.
  6. In the absence of this law, the women would not request this ultrasound.
  7. In the absence of this law, a competent doctor acting according to best evidence and science based practice would not order the ultrasound in this case.

(WordPress is working overtime to piss me off, fwiw.)

2-3 are roughly the provisions of the VA law that rightly sparked so much furor.

2 entails that there is no legitimate state interest in play. This makes the scenario disanalogous to forensic treatment, executions, when competence is lowered, public health, etc. More to the point, let’s stipulate that there is no such interest in play in this case.

4 entails that there is no informing going on. I’d go further and say this sort of thing just cannot be part of a general informed consent procedure as we understand it. Even if it gives “more information”, even if it that information in that form would change some women’s minds, it’s just not remotely the kind of thing we consider necessary for informed consent. I’ve no interest in defending this proposition.

If the women is indifferent to the ultrasound requirement, then I think the moral tension is less sharp for some people, so we won’t consider that case. 7 rules out it being useful for that women’s care (which I’ll concede can happen in some cases, but that’s not a case of interest).

Question 1: Is there any prima facia problem with complying with the law and refusing to perform the abortion without performing the ultrasound?

I think so. There are lots of cases where abortion is, I believe, the right choice. Being not pregnant is a reasonable health state to desire in all sorts of circumstances and abortion is the way to achieve it when one is pregnant. The strong preponderance of medical and social evidence supports fairly extensive family planning.

There is no medical or informed consent reason for an transvag ultra in this case (4,6,7). So, the doctor is being required to perform an unnecessary procedure which is invasive and typically fairly distressing. Performing transvag ultras on a nonconsenting women would be rape. (Consider a case where a doctor lies to women and tells them that they are required, medically or legally, to undergo the ultrasound when they are not so required. It would be a battery, plain and simple.)

By 6, the women does not want the ultrasound. Let’s go further and suppose that she finds it distressing.

Even if we consider, contra 5, a case where an abdominal ultrasound would suffice for compliance, I think it would easily fall under battery. The touch does not have to be great.

Question 2: Has the women consented to the ultrasound if she consents (i.e., requests) the abortion?

I don’t think so. While “In some instances, consent to a particular treatment may also imply consent to all procedures necessary for achieving the agreed-upon end“, this procedure is not anything but legally necessary. The legal imposition is not connected with any legitimate state end nor is it there to achieve informed consent. So, the acquiescence to the ultrasound is, in this case, coerced. (Or, if she continues the pregnancy or delays the abortion etc. these are all things she would not have done, save for the law, thus are not freely chosen.)

Question 3: Is the doctor coercing the women?

Nope.  The doctor would not order the unwanted procedure except for the law. The doctor is under threat of various sanctions if they fail to comply. The doctor is being compelled to perform the what-would-in-most-circumstances be a battery.

Question 4: Is the doctor required to perform abortions without complying with the ultrasound law?

Tricky. Consider a case where a person is condemned to undergo a medically non-indicated, “patient” refused amputation as part of a criminal punishment for a minor drug offense. It seems like doctors are obliged to refuse to do this. I’m sure the literature on the chemical castration of sex offenders is extensive, and it provides some relevant situations. Indeed, there’s a really nice discussion by Charles Foster, which covers a lot of what I’m after.

However, I don’t think the doctor is required to defy (even for suitably weakened notions of requirement). The Marcotte point is strong. Let me put it in two parts:

  1. A large group of women have a strong interest in being able to obtain legal abortions.
  2. Secretly defying the law has a substantial risk of detection and will shut down the doctor or clinic.

Absent a general movement to defy the law, the main result of resisting is to risk deprive a number of women access to legal abortion. Given that an abortion providing doctor generally has it as a project to provide such access, I don’t think they are required to defy.

Additionally, it is a shared coercion. The doctor is not, themselves, freely requiring this as a condition of treatment. They don’t have a duty toward the woman to break this law. (They do, of course, have normal duties to minimize the negative impact.) They patient requests of the doctor to perform the legal abortion, and, unfortunately, the law requires something odd, invasive, and nasty.

Question 5: Does this mean there’s no dilemma?

Nope. Foster puts it nicely:

There is enough in these…points for the doctor to be able to say intelligently: ‘My queasiness is analytically explicable’. And that might be a comfort.

This is all very well, but what should the doctor do?  Doctors sometimes have a duty to overcome their queasiness and opt for the lesser of two evils.

I think outrage is more appropriate than queasiness. I made some analogies to Williams‘ execution dilemma: There’s definitely a clean hands problem here.

I think that the transvag is clearly much worse than the abdominal, because the transvag is very rape-like (at best), which heightens the tension.

I hope this explicates things sufficiently.

7 Responses to “More on the Doctor’s Dilemmas”

  1. Nemo Says:

    Very thoughfully written, Bijan. You deserve some blog traffic out of this, because it’s definitely in the uppermost tier of what’s been written (that I’ve seen) in the wake of the “anon doc” piece.

    [Bijan wrote:] 2 entails that there is no legitimate state interest in play. This makes the scenario disanalogous to forensic treatment, executions, when competence is lowered, public health, etc. More to the point, let’s stipulate that there is no such interest in play in this case.

    It’s not clear why 2 entails that there is no legitimate state interest (a term of art from jurisprudence) in play. Indeed, the weight of jurisprudential authority (e.g. Casey; Gonzalez; the recent Fifth Circuit panel decision on the Texas law) suggests that there are legitimate state interests in play. This doesn’t mean that the law is particularly effective or especially well-designed to achieve them, of course.

    It’s also perhaps worth noting, as background considerations, that [i] state interests do not have to coincide with the interest(s) evoked by the statute in order to be legitimate (statutes are not infrequently upheld on the basis of interests that are not apparent from the text of a law), and [ii] in order for a statute to be linked to a legitimate state interest, it’s not required that every instance of its application be linked to that interest.

    I suppose we could stipulate that there’s no legitimate state interest in this case (whether you mean the case of this woman or the case of this entire statute), but I’m not sure that it really advances the discussion to do so.

    [Bijan wrote:] 4 entails that there is no informing going on. I’d go further and say this sort of thing just cannot be part of a general informed consent procedure as we understand it. Even if it gives “more information”, even if it that information in that form would change some women’s minds, it’s just not remotely the kind of thing we consider necessary for informed consent. I’ve no interest in defending this proposition.

    As I suggested in a comment elsewhere, it seems that 4 does not entail that there is no informing going on.
    I’m not sure the rest is true; and even if it were true there is no obvious reason why the state could not in theory validly choose to impose a higher standard for informed consent in a particular circumstance. Indeed, even under the status quo the standard for informed consent is not the same in all contexts, and some of that is prescribed in statutes. But if it’s a proposition you prefer not to take up here, that’s fine.

    [Bijan wrote:] If the women is indifferent to the ultrasound requirement, then I think the moral tension is less sharp for some people, so we won’t consider that case. 7 rules out it being useful for that women’s care (which I’ll concede can happen in some cases, but that’s not a case of interest).

    Is 7 saying that *no* competent doctor acting, etc., would order the ultrasound in this case, or simply that the applicable standards of competence and good medical practice are met without the ultrasound?

    At any rate, it might have zero usefulness for this woman’s care, but it does not seem to me that that is a corollary of 7. The requirements of good (or even “best”) medical practice in a given context, for a given medical community, at any given time represent a duty or standard of care – generally a very high one – but they do not represent the maximum standard of care that the law or the medical profession could conceivably impose. Even “best practices” in a field are a compromise of sorts, and do not necessarily encompass all things that would have more than zero usefulness to a patient.

    While I think that 7 (which is stipulated) constitutes some evidence in favor of the proposition that the ultrasound would not be useful for the woman’s care, I think it’s is insufficient to establish it absolutely.

    [Bijan wrote:] I think so. There are lots of cases where abortion is, I believe, the right choice. Being not pregnant is a reasonable health state to desire in all sorts of circumstances and abortion is the way to achieve it when one is pregnant. The strong preponderance of medical and social evidence supports fairly extensive family planning.

    Let’s stipulate this.

    [Bijan wrote:] There is no medical or informed consent reason for an transvag ultra in this case (4,6,7).

    I am still not seeing that 4, 6, and 7 are sufficient, without more, to establish this deductively. Maybe you’re right about this. But something is not coming across in the explanation.

    [Bijan wrote:] So, the doctor is being required to perform an unnecessary procedure which is invasive and typically fairly distressing. Performing transvag ultras on a nonconsenting women would be rape. (Consider a case where a doctor lies to women and tells them that they are required, medically or legally, to undergo the ultrasound when they are not so required. It would be a battery, plain and simple.)

    It’s true that, absent legally valid consent, almost anything the doctor would do would constitute a battery, and much of what this doctor ordinarily does would probably constitute a rape. I have no view on of whether performance of a consented-to transvaginal ultrasound is, as you say, typically fairly distressing, but it seems obvious that a non-consensual procedure does not have to be very invasive at all in order to be distressing. So the consent issue is emerging as the crux here.

    [Bijan wrote:] I don’t think so. While “In some instances, consent to a particular treatment may also imply consent to all procedures necessary for achieving the agreed-upon end“, this procedure is not anything but legally necessary. The legal imposition is not connected with any legitimate state end nor is it there to achieve informed consent. So, the acquiescence to the ultrasound is, in this case, coerced. (Or, if she continues the pregnancy or delays the abortion etc. these are all things she would not have done, save for the law, thus are not freely chosen.)

    Yet even where consent to a particular treatment does *not* imply consent to a given procedure, the solution that typically entails is getting a separate consent, and that is what I expect will be done here. Thus, the focus thus really returns to whether the specific consent to the ultrasound is coerced, which I don’t think flows from the proposition that the ultrasound may be only legally necessary to procuring the abortion. It seems possible to give valid consent to something that is only legally necessary to achieving an agreed-upon or desired end, even if one is distressed to some degree rather than indifferent, and even if one would not have done so but for the law.

    [Bijan wrote:] Question 3: Is the doctor coercing the women?

    Nope. The doctor would not order the unwanted procedure except for the law. The doctor is under threat of various sanctions if they fail to comply. The doctor is being compelled to perform the what-would-in-most-circumstances be a battery.

    I agree that the doctor is not coercing the woman. We have stipulated here that the doctor would not order the unwanted procedure except for the law.

    I think it accomplishes little, though, to say that the procedure “would in most circumstances be a battery”. Any ultrasound would a battery if a legally valid consent were not given, but in most circumstances a legally valid consent *is* given, and we have not established that the consent given in this case would not be valid. It might not be valid due to coercion, but this cannot be deduced in any particular case from [1 through 7 plus the fact that the abortion-seeking patient finds the prospect of the ultrasound distressing]. Finally, I think it is at least questionable whether the doctor is being “compelled” (in a legally cognizable sense, at least) to perform the ultrasound, as he is arguably not compelled to perform the act to which the ultrasound is made a condition precedent by the statute.

    [Bijan wrote:] However, I don’t think the doctor is required to defy (even for suitably weakened notions of requirement).

    Agreed.

    [Bijan wrote:] I think that the transvag is clearly much worse than the abdominal, because the transvag is very rape-like (at best), which heightens the tension.

    I should think that, at *best*, a transvaginal ultrasound is validly consented to and thus is arguably not any more rape-like than any validly consented-to act of that physical nature. At *worst*, it’s not validly consented to, and it’s at least a sexual battery of some kind. Yet in a particular case, valid consent is either present or absent (according to some agreed standard), and there’s the rub.

    I’ll add that some rape victims have found upsetting and insulting the comparison of a transvaginal ultrasound hypothetically performed in accordance with an ultrasound law to rape, and although I realize we’re trying to discuss this detachedly and in a semi-private (by web standards) setting, I think it’s worth bearing that subjective sensitivity in mind in developing these arguments.

  2. Bijan Parsia Says:

    It’s not clear why 2 entails that there is no legitimate state interest (a term of art from jurisprudence) in play. Indeed, the weight of jurisprudential authority (e.g. Casey; Gonzalez; the recent Fifth Circuit panel decision on the Texas law) suggests that there are legitimate state interests in play. This doesn’t mean that the law is particularly effective or especially well-designed to achieve them, of course.

    Well, I think you have to indulge in a bit of closed world reasoning or charity toward my stipulations: I.e., that 2 enumerates not only the stated rationale but all the in principle rationales.

    Otherwise, analysis is pretty hopeless as there are all sorts of counterfactual suppositions I can invoke: “But what if such a policy would save 1 live, 2 lives, 10,000 lives over 10 years?” “What if it turns out that there really is an abortion hating god?” etc.

    I suppose we could stipulate that there’s no legitimate state interest in this case (whether you mean the case of this woman or the case of this entire statute), but I’m not sure that it really advances the discussion to do so.

    Why doesn’t it advance the discussion? Or to put it another way, how does considering in the first instance the possibility of other legitimate interests help us understand the ethical issues? Unless you believe that there could always be a legitimate state interest in such matters (which is a pretty odd position), then it’s worth considering the “clean” case.

    Or just switch to the “punch in the face for informed consent” variant.

    In point of fact, I believe this to be the actual case.

    You could always consider elaborations later.

    As I suggested in a comment elsewhere, it seems that 4 does not entail that there is no informing going on.

    If the doctor tells you they hate you, then there is informing going on, but it is not part of the informing that goes into informed consent.

    I’m not sure why you’re stuck on this. The inform component of informed consent is the sort of informing we can reasonable ask of an arbitrary but well trained health care professional such that that informing supports patient autonomy. Thus, as a carer, I am not obliged to disclose my personal experiences, even if that would help the patient. Similarly, even on topic informing is not appropriate if it diminished the patients capacity to choose (e.g., by overloading them). Since acertaining the degree of informing in individual cases with high degrees of certainty is difficult, we accept “best practice” principles.

    I’m not sure the rest is true; and even if it were true there is no obvious reason why the state could not in theory validly choose to impose a higher standard for informed consent in a particular circumstance.

    You keep going there, but as bare possibility with not reasonable support or even consideration.

    The fact of the anomalous intervention establishes a burden of proof: What’s special about this case that requires radically different forms of informing (e.g., uniform waiting periods; you can come in having had abortions before, being an expert on abortion, having consulted with your therapist, lovers, parents, friends, enemies, etc. and still have to wait 24 hours, “too cool off”)? How do these extra considerations support patient autonomy or, indeed, benefit the patient in any way?

    If the extra stuff does not support patient autonomy and choice consistent with respect for them as adult persons, then it ipso facto is not part of or promoting informed consent. That does not mean that the state might not otherwise intervene; it does not mean that the doctor might not refuse; it does mean that it has nothing to do with informed consent.

    (If we go to problems with legal intervention per se, the case becomes more obvious.)

    I’m not going to respond to any more questions about this of this sort. I personally think you need to recalibrate your investigation because this is bit is just no good.

    I am still not seeing that 4, 6, and 7 are sufficient, without more, to establish this deductively. Maybe you’re right about this.

    4 establishes that there’s no informing, even putative informing (no, the fact that people may not listen or understand is not relevant). 6 establishes that she consents. 7 establishes that there is no medical reason.

    It’s not “deductive” per se, but it doesn’t need to be.

    It seems possible to give valid consent to something that is only legally necessary to achieving an agreed-upon or desired end, even if one is distressed to some degree rather than indifferent, and even if one would not have done so but for the law.

    If if this is possible, it doesn’t seem so on the basis of this case. Add that the women says, “I do not consent to this as part of my medical treatment. I am complying under coercion”.

    I.e., the point is that it’s possible not to consent, yet comply, with something that’s only legally necessary. C’mon! That’s inherent in it being a law backed by state power!

    I think it accomplishes little, though, to say that the procedure “would in most circumstances be a battery”. Any ultrasound would a battery if a legally valid consent were not given

    Eh. You trade too much on the fact that it’s legal, thus not recognized by law as a battery.

    Consider the punch in the face requirement. Or [[TRIGGER ALERT]], an intercourse requirement, whether by a penis or a dildo. Even if these weren’t “legally” battery and rape, it’s clear that that’s what they are.

    Finally, I think it is at least questionable whether the doctor is being “compelled” (in a legally cognizable sense, at least) to perform the ultrasound, as he is arguably not compelled to perform the act to which the ultrasound is made a condition precedent by the statute.

    Yeah, you went here before. I think that the doctor has engaged to treat the patient is sufficient. This is also in the weeds.

    I should think that, at *best*, a transvaginal ultrasound is validly consented to and thus is arguably not any more rape-like than any validly consented-to act of that physical nature. At *worst*, it’s not validly consented to, and it’s at least a sexual battery of some kind. Yet in a particular case, valid consent is either present or absent (according to some agreed standard), and there’s the rub.

    Probably the relevant analogy is being pressured to have sex in a variety of circumstances which diminish the robustness of the consent.

    I’ll add that some rape victims have found upsetting and insulting the comparison of a transvaginal ultrasound hypothetically performed in accordance with an ultrasound law to rape, and although I realize we’re trying to discuss this detachedly and in a semi-private (by web standards) setting, I think it’s worth bearing that subjective sensitivity in mind in developing these arguments.

    Yes, hence my attempt to euphemisize a bit. I apologize to anyone who found it distressing.

    Unfortunately, I do think that if one agrees that it is vaginal penetration under sufficiently diminished consent and otherwise unjustified, then it is rape according to many definitions (including ones I accept). That’s key to why the law is so distressing.

    (I trust it’s unproblematic to think of so called “marital consent” laws as allowing legalized rape. Not every instance of martial sex under such laws would be rape, obviously.)

  3. Bijan Parsia Says:

    At any rate, it might have zero usefulness for this woman’s care, but it does not seem to me that that is a corollary of 7. The requirements of good (or even “best”) medical practice in a given context, for a given medical community, at any given time represent a duty or standard of care – generally a very high one – but they do not represent the maximum standard of care that the law or the medical profession could conceivably impose. Even “best practices” in a field are a compromise of sorts, and do not necessarily encompass all things that would have more than zero usefulness to a patient.

    While I think that 7 (which is stipulated) constitutes some evidence in favor of the proposition that the ultrasound would not be useful for the woman’s care, I think it’s is insufficient to establish it absolutely.

    I missed this bit.

    I guess I need to conceive that there’s always, in some sense, more that you could possibly do. After all, medical care, like all human activities, involves a lot of constraint and uncertainty. Let me reluctantly grant that. (I’m reluctant because I think this is just the wrong place to go, but whatev.)

    However, I think it’s indisputable that this proposal is useless for some woman. I mean, it’s possible that it’d be useful to some woman, but, in terms of bare possibility, it’s possible that it would be of zero use to some woman. (Doesn’t this just illustrate the worthlessness of bare possibility in this context?) The law only allows for forgoing this procedure in select cases which do not, I trust obviously, cover all possible cases where it doesn’t provide any benefit. But now the jig is up, right? I think even the most cursory analysis of abortion and the women who chose it (heck, remember this provision covers non-elective abortion as well!) will show that this provision does not improve their care or autonomy in sufficient numbers to justify the burden. If you go check the guidelines I posted in the prior thread, you’ll see that the medical community has no problem imposing an echo based age determination as part of a standard of care (i.e., in all second trimester abortions).

    So, burden of proof lies on defenders. You can’t rely on the bare possibility that it might help some women in some circumstances to justify imposing the burden.

    If we allow bare possibilities then we have no constraints what so ever. Punching someone in the face just might help them make the right decision, so punching in the face is justified. It’s barely possible!

  4. Nemo Says:

    [Bijan wrote:] Why doesn’t [stipulating that there is no legitimate state interest] advance the discussion? Or to put it another way, how does considering in the first instance the possibility of other legitimate interests help us understand the ethical issues? Unless you believe that there could always be a legitimate state interest in such matters (which is a pretty odd position), then it’s worth considering the “clean” case.

    Perhaps you’re right and this stipulation can help us understand the ethical issues. However, at some point the discussion (not necessarily this thread, but in a broader sense the discussion about the law) has to revisit what was previously stipulated if the conclusions drawn at an interim stage depend on the truth of the stipulated proposition. While I don’t believe that there’s a legitimate state interest in every possible law dealing with such matters, but I think it has been pretty strongly established by the jurisprudence I mentioned earlier that legitimate state interests are present for a law possessing the salient features of our hypothetical law. (Let me stress that that’s not a very hard requirement to satisfy; many unjust and/or inefficient laws have been rationally related to some legitimate state interest.)

    So it simply seemed to me as though we’d be stipulating something it would probably be incumbent upon us to abandon down the road, absent an unforeseeable sea change in “state interest” doctrine.

    [Bijan wrote:] If the doctor tells you they hate you, then there is informing going on, but it is not part of the informing that goes into informed consent.

    Agreed, but that doesn’t aid in establishing that 4 (the woman will not personally see the ultrasound image in any event) entails that there is no informing going on of the kind that is relevant to informed consent.

    Most US states already require, as part of the informed consent process, that a physician disclose to a woman seeking an abortion the physician’s assessment of the probable gestational age of her fetus. Now, even if those requirements weren’t in place, and even if the medical profession did not observe or impose those requirements on itself in a given place and time, I would find it hard to argue that it is not information of a type relevant to informed consent. In fact, the US Supreme Court expressly found in Casey that probable gestational age *is* relevant to informed consent to an abortion, and I’m inclined to agree. It seems to be information of a kind that a person in this patient’s circumstances – whether or not this actual patient – could reasonably find material to a decision on what specific course to pursue. (It also seems that gestational age is relevant to the doctor’s decision-making as well, even if, as we have stipulated, it would not be the profession’s standard practice in this specific case to perform a confirmatory ultrasound.)

    The chief thing our hypothetical ultrasound law does that goes beyond the current requirements in most states is to ensure (except in exempted cases) that the aggregate body of data on which the doctor bases the gestational age assessment includes sonographic data (obtained by whatever method is adapted to the relevant stage of pregnancy). In a given case, this additional data point might contribute only incremental confirmatory value to the estimate of gestational age. In fact, we could reasonably infer from 7 that this will be true in most cases. But that does not mean at all that there is no consent-relevant informing going on when the doctor discloses to the patient a gestational age estimate informed partly by sonographic confirmation.

    [Bijan wrote:] I’m not sure why you’re stuck on this. The inform component of informed consent is the sort of informing we can reasonable ask of an arbitrary but well trained health care professional such that that informing supports patient autonomy. Thus, as a carer, I am not obliged to disclose my personal experiences, even if that would help the patient. Similarly, even on topic informing is not appropriate if it diminished the patients capacity to choose (e.g., by overloading them). Since acertaining the degree of informing in individual cases with high degrees of certainty is difficult, we accept “best practice” principles.

    Britain favours the “reasonable physician” standard of informed consent; in the US a “reasonable patient” standard enjoys more currency. But either way, in coming to proper understanding of the informed consent framework, it’s important to realize that we (society, through the state) don’t and shouldn’t always accept the existing practice standards of the medical profession – even their “best” ones – although prior to the mid-20th century there was virtually slavish deference to that profession’s standards (or lack thereof, depending on the subject matter).

    It is not anomalous in recent decades for the state to intervene either judicially or legislatively to impose “best practices” – a higher standard of care than is currently observed. Sometimes the prescriptions relate to a specific therapeutic context, sometimes they relate to an across-the-board standard. And that goes not just for medical standards generally but for informed consent standards as well. Indeed, contemporary professional standards of informed consent (as observed in the US) to a significant degree have been shaped by state intervention over the last 60 years or so in order impose higher standards of care which had not yet been by the medical profession.

    A seminal court decision from about 40 years ago, reputedly significant in the development of autonomy-centered bioethics in the US, put it this way: “There are, in our view, formidable obstacles to the notion that the physician’s obligation to disclose is either germinated or limited by medical practice … Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”

    [Bijan wrote:] You keep going there, but as bare possibility with not reasonable support or even consideration.

    I’m hopeful that the present comment supplies some of that.

    [Bijan wrote:] The fact of the anomalous intervention establishes a burden of proof: What’s special about this case that requires radically different forms of informing (e.g., uniform waiting periods; you can come in having had abortions before, being an expert on abortion, having consulted with your therapist, lovers, parents, friends, enemies, etc. and still have to wait 24 hours, “too cool off”)? How do these extra considerations support patient autonomy or, indeed, benefit the patient in any way?

    If the extra stuff does not support patient autonomy and choice consistent with respect for them as adult persons, then it ipso facto is not part of or promoting informed consent. That does not mean that the state might not otherwise intervene; it does not mean that the doctor might not refuse; it does mean that it has nothing to do with informed consent.

    I’m inclined to agree with that part, and it helps me to narrow my particular objection here, which I think can be stated thusly: it does not seem to me that, from 4, it follows that the “extra stuff” does not support patient autonomy and choice consistent with respect for them as adult persons. I’ve already shown in an earlier part of this post why there is reason to doubt this with respect to the ultrasound.

    With respect to cooling-off periods, consider this counterexample. You can come into the hospital having donated organs before, being an expert on organ transplants, having consulted with your therapist, lovers, parents, friends, enemies, etc. Yet these days you may encounter a requirement of a cooling-off period before you can donate your kidney, which requirement is increasingly viewed as being properly conducive to patient autonomy and respect. And this notwithstanding that the ethicists and policymakers who endorse such requirements are aware that most donors are already so committed to the procedure before getting involved in the consent process that a waiting period rarely affects their choice.

    Note that none of what I’ve written is a defense of the law as a policy matter. It’s one thing to say that the law is consistent with supporting autonomy-centered informed consent. It’s quite another thing to assert that the state has fixed the standard at the optimal level (or at least at a level that is preferable to the the standard it is replacing). As I mentioned, above, in the modern era the state has a record of prescribing standards of informed consent, with regard both to content and to procedure. In many of these cases, the state has imposed a higher standard than that theretofore observed by the medical profession; in others it’s been a matter of codifying a standard around which some consensus of ethicists and/or medical practitioners has already formed. But as standards of care fall along a sliding scale, and are themselves complex social constructions, any state action in this area is susceptible to arguments that society would be better served by a different standard.

    [Bijan wrote:] If if this is possible, it doesn’t seem so on the basis of this case. Add that the women says, “I do not consent to this as part of my medical treatment. I am complying under coercion”.

    OK, we’ll add that to the stipulation. I’m not really sure what sense to make of the patient’s second sentence. I don’t know what someone in the medical profession would ordinarily do in those circumstances, because of the ambiguity. I suspect that if I were a doctor, I would not perform an ultrasound unless and until I got a clearer expression of consent. If someone were to say to a doctor, “I do not consent to procedure X; I’m signing and giving this hospital consent form to you against my better judgment”, I hope the doctor would not automatically rely on the written consent without further investigation and discussion to ascertain whether there really was sufficiently voluntary consent.

    [Bijan wrote:] I.e., the point is that it’s possible not to consent, yet comply, with something that’s only legally necessary. C’mon! That’s inherent in it being a law backed by state power!

    I certainly agree that it’s possible to submit to a procedure without the frame of mind required to form a valid consent. I think that’s possible whether the procedure is a positive legal obligation (though consent is probably irrelevant there), a prerequisite (as here), both, or neither. Whether has actually occurred in any given case is a highly fact-specific inquiry.

    I wonder whether “comply” is the right word here, since it’s the *doctor’s* conduct that is or is not compliant with the law, and even in a more general sense, the situation of a patient who doesn’t consent *and* doesn’t undergo the ultrasound also conforms to the law. In addition, I’ve come round to thinking that the “legally necessary” characterization is infelicitous (though I previously used the term myself), since it muddies the distinction between a positive obligation and a prerequisite, which I think is worth preserving.

    [Bijan wrote:] Eh. You trade too much on the fact that it’s legal, thus not recognized by law as a battery.

    Perhaps it’s worth emphasizing that nothing in the statute alters what is required in order for an ultrasound not to be legally considered a battery. No special legal protection is conferred on the procedure simply by virtue of it being carried out in the general circumstances contemplated by this statute. The doctor still has to obtain valid consent to the ultrasound.

    [Bijan wrote:] Yeah, you went here before. I think that the doctor has engaged to treat the patient is sufficient. This is also in the weeds.

    If by “treat the patient” you mean perform an abortion, I could concede that the doctor has at some point engaged to do so, but it does not seem to me that we ought to situate that point prior to the doctor’s receipt of the patient’s legal consent to the abortion.

    [Bijan wrote:] However, I think it’s indisputable that this proposal is useless for some woman. I mean, it’s possible that it’d be useful to some woman, but, in terms of bare possibility, it’s possible that it would be of zero use to some woman.

    Sure. But is that really exceptional? The prevailing ethical and legal informed consent models don’t exclude the possibility that informed consent requirements in a given case might actually be of zero use to a particular patient. This is particularly, though not solely, true if by “zero use” we mean “would not have altered the patient’s decision.” And very few if any laws are held to a standard that requires them to be so narrowly tailored that they exclude all or even most cases where they would not provide any individual benefit.

    [Bijan wrote:] I think even the most cursory analysis of abortion and the women who chose it (heck, remember this provision covers non-elective abortion as well!) will show that this provision does not improve their care or autonomy in sufficient numbers to justify the burden.

    It’s possible, though one would have to know in advance what constituted sufficient numbers were. One might argue that someone’s autonomy and care benefit under a higher standard of informed consent even if that benefit is not evidenced by their actually availing themselves of a different course of action than would have resulted under a lower standard. Until they invent autonomometers, this is going to remain subject to reasonable dispute.

    There’s probably some room for argument over whether any of the abortions covered by the law are properly described as non-elective. Some sources offer definitions of elective/non-elective that seem pretty close to the carveouts in the ultrasound law.

  5. Nemo Says:

    Bijan, I realize I haven’t come back around to addressing your invocation of Bernard Williams’ “Jim and the Indians” dilemma. By the end of this post, I hope I’ll have done so.

    If you don’t mind, with some admitted misgivings I’m going to start referring to the doctor as “he”. It’s not that I imagine the doctor as a man, or that I think the doctor is likely to be a man, or has a gendered occupation — but purely to avoid any risk of pronoun ambiguity with the pregnant patient. If you have any objections to my doing so with your hypothetical, just let me know.

    We agree that it’s at least likely and foreseeable that a pattern of noncompliance by the doctor would eventually be detected and punished in a way that would make it unfeasible for him to carry out abortions thereafter. Though there’s certainly a chance that it wouldn’t be, it might sharpen the analysis if we stipulated that this outcome will certainly materialize.

    Based on the principle of supply and demand, this outcome would theoretically exert some upward pressure on the cost (in a broad sense) to other women of procuring a future abortion, which we’ll assume the doctor would regard as a negative thing. This inference is, naturally, based chiefly on the principle of supply and demand. Let’s assume for purposes of this analysis that compliance with the law would not somehow contribute incrementally to an offsetting reduction in natural demand for abortion, although some people have essentially argued that it could (that appears to me to be sufficiently complicated and speculative at this stage that I’d prefer to stipulate a nonzero net increase in cost).

    The extent and effects of that nonzero cost increase in cost are hard to assess. Our particular doctor’s unavailability for abortions shouldn’t have a material effect overall, but we could envision that depending on the circumstances it might have a more material effect in the case of a certain subset of potential future patients (if, for example, he’s currently the only doctor willing to perform abortions for a hundred miles in any direction, and there’s no certain successor to his practice if he were to lose his medical license). For ease, let’s refer to that aggregate future negative effect on other women of the doctor’s non-compliance with the law as N (as in “non-compliance harm”), and we’ll return to it later.

    Turning to the alternative horn of the dilemma you’ve sketched out, let’s consider the possible harms to the patient if the doctor complies with the law. I’ll be talking about gross harms here; there’s no point yet talking about net harm since you and I haven’t come to agreement on whether there could be any gross benefits to the patient of the doctor’s compliance. I’ll propose several scenarios, since there’s more than one way for the doctor to achieve compliance with the law. I’ve omitted any scenario where the patient submits to a transvaginal ultrasound and the doctor performs one under circumstances where he was not reasonably assured that her consent was validly given, because I think it would probably be against the law and thus not a scenario of legal compliance.

    Scenario 1: The doctor offers a medical rather than a surgical abortion, provided that it is not medically contra-indicated in this patient’s specific case. (This appears to be possible under even the early version of the Virginia law, but might not under a different state’s ultrasound law. We never addressed this in the hypothetical; but you might want to change it to specify that the law applies to medical and surgical abortions alike.)

    In this case, the harm to the patient, if any, seems quite small, particularly if she did not attach strong importance specifically to a surgical abortion rather than a medical one.

    Scenario 2: If #1 is unavailable or is unacceptable to the patient, the doctor schedules an abortion during a timeframe when it will be feasible for a transabdominal ultrasound to be used.

    In this case, the patient harm seems to consist primarily in the burden that might arise from any resulting delay past when the doctor would otherwise have scheduled the abortion, plus the cost, if any, the patient incurs for the transabdominal ultrasound. The delay burden is highly fact-specific, but I think Xena did a good job earlier of showing that in assessing the likely range of burdens it makes sense to bear in mind that not having a transvaginal ultrasound is unlikely to block out more than 10 to 14 days as possible dates for the abortion procedure to be performed in compliance with the law.

    With regard to the economic burden of the transabdominal ultrasound, that’s also fact-specific. We obviously would want to take into account the possibility of total or partial reimbursement from public or private insurance reimbursement, as well as the feasibility of the patient being able to procure an ultrasound gratis. Finally, it may also be worth considering that the doctor is capable of agreeing to absorb all or part of this burden. At the very least, it’s not unreasonable to wonder if the doctor should agree to perform this ultrasound at no more than its cost to him rather than at the usual rate. After all, since by stipulation he wouldn’t perform an ultrasound but for the law, he wouldn’t be suffering any lost profits.

    Scenario 3: If #2 is unacceptable to the patient, the doctor does not perform any abortion on the patient.

    In this case, the burden to the patient could be substantial. However, it’s worth questioning how likely this scenario is to arise in practice, and also whether by the time we reach scenario #3 how much of the outcome is properly ethically attributable to the doctor’s decision to comply with the law.

    In any case, regardless of the scenario, let’s refer to the harm incurred by the patient which is caused by the doctor’s compliance with the law as C (as in “compliance harm”), as opposed to N.

    If I’ve understood correctly your intent in analogizing our doctor’s situation to Jim in Williams’ dilemma, I take it that our N corresponds roughly to the shooting death, at the hands of their captors, of the 19 prisoners who would survive if Jim agreed to shoot the 20th prisoner. And I likewise take it that our C corresponds roughly to the shooting death, at Jim’s hands, of the 20th prisoner in order to cause the other 19 to be spared.

    You seem to be suggesting that while you think it could be said in some objective sense that at least in the aggregate N>C, it is still nonetheless ethically tricky for an individual to opt for C.

    I think that recourse to the Williams example is helpful to establishing the existence of the dilemma on some scale. So, well done. But there are plenty of things unresolved in my mind, including many of the questions I’ve already raised. Here are some others:

    A. I think we have a lingering disagreement over the likely scale of C, as well as the doctor’s obligation to avoid bringing it about, whether that duty is different at different points in time, and at what point the duty attaches. The scale of any warranted outrage or moral queasiness is going to depend on such things.

    B. Another concern of mine is that we’ve had to stipulate the heck out of this hypothetical just to get us this far. What that means, I’m not certain.

    C. It seems that the doctor could make a conscious choice that would bring about N, just as foreseeably, but which most people wouldn’t think raised a clean hand. For example, we could imagine him freely choosing – and not as a result of this law or any situation produced by it – to take an early retirement and pursue another vocation (even though, as it happens, he doesn’t want to). Jim, on the other hand, seems to have no conceivable conscious course of action available that would knowingly bring about N and is not ethically problematic. Does that indicate a relevant disanalogousness here? I haven’t yet answered that question to my own satisfaction. But it could indicate something different about the kind and not just the degree of duty, if any, that the doctor has to avoid N.

    Anyhow, Bijan, a while ago you said “My guess is that (psychologically) the way out is to minimize the negative effects of the unnecessary procedure.” Regardless of the extent of the dilemma, I think you’re on to something (leaving aside our disagreement over the significance of the “unnecessary” part). But you suggested that it seemed very difficult to do so. I’d submit that the more one looks at the question, the more ways of mitigating will suggest themselves (I’ve alluded to a few already). Of course, not all of them will be effective or even available in every case, but I think there are ways to work within the law that greatly diminish the likelihood and acuteness of any dilemma by focusing on C. By developing sensible and sensitive policies to address compliance with the law, it seems plausible that a medical practice, naturally in cooperation with its patients, could keep C very low in the vast majority of cases, and to still mitigate C somewhat in other cases.

  6. Nemo Says:

    Is this thread basically over, or are we just at the entr’acte? I suppose we could save it for a rainy day.

    • Bijan Parsia Says:

      Hi Nemo,

      Sorry, I’ve gotten terribly distracted. I’ll take a look when I get a chance and see if there’s any more for me to say. If you wanted to write up a full, bug free analysis, I’d happily publish it.


Comments are closed.

%d bloggers like this: