Prenatal testing during pregnancy is offered with the goal of identifying medical conditions that affect a fetus. Some of these medical conditions can be treated, other times knowing about the diagnosis in advance will affect how or even when the delivery occurs, and sometimes a condition is identified that leads a woman to choose an abortion. Although women in Pennsylvania, North Dakota, South Dakota, Utah, Idaho, Indiana, Missouri, Minnesota, North Carolina might not get to hear all of their medical information.* (Make sure you read my addendum below). In these standard bearing states for misogyny a doctor is allowed to withhold information that they think could lead to an abortion and not be sued as a result. These are called “wrongful birth laws” and they allow doctors to put their own personal beliefs first, free of legal repercussions. Arizona hopes to be the 10th state to legalize this malpractice (Senate Bill 1359) and it should come as no surprise that Kansas is also considering this legislation.
“Wrongful birth” lawsuits are filed when a woman does not get medical information that had she known about during her pregnancy, would have led her to choose an abortion. When successfully litigated, they typically involved large judgements as the women can sue for the costs of lifelong care for a profoundly disabled child. Historically, these lawsuits have been filed when A) there is a mix up in record keeping and the results of a test are lost or B) a pro-life doctor doesn’t disclose medical information in order to prevent a women from considering an abortion. Both scenarios are bad, but for entirely different reasons.
But it gets better. The Supreme Court refused to hear a challenge to the Pennsylvania law (why this hasn’t been in the news more these past 20 years makes me batshit crazy). Yes, apparently women are not free in this country to receive all of the necessary medical information to make an informed decision. If that doesn’t say war on women, I don’t know what does.
In my opinion, State medical societies should immediately respond with a loud and clear message. That any physician who withholds medical information from any patient based on the physician’s own religious/ethical/personal beliefs will lose their medical license.
This is the thin edge of the wedge. It is a state sanctioned return to the days of patriarchal medicine, you know, when the little lady couldn’t possibly make an informed decision.
This war on women by way of intruding into the practice of medicine (by the party of smaller government, no less) is wrong and must not be tolerated.
Speak up and be heard.
This weekend I plan on writing to the San Francisco Medical Society, the California Medical Board, and the American College of OB/GYN. What do you plan on doing?
One commenter (a lawyer, I assume, and thank you) astutely pointed out that part D of the bill reads as follows:
THIS SECTION DOES NOT APPLY TO ANY CIVIL ACTION FOR DAMAGES FOR AN INTENTIONAL OR GROSSLY NEGLIGENT ACT OR OMISSION, INCLUDING AN ACT OR OMISSION THAT VIOLATES A CRIMINAL LAW.
The commenter suggested that a doctor intentionally keeping back part of the medical record would still be legally liable. But it is never as obvious as that. In my experience, what happens is the screening ultrasound (part of prenatal testing) is ordered later than normal (say after 20 weeks). At this point should a severe anomaly be identified, by the time all the information is available it would be too late to have an abortion. I have seen pro-life physicians order ultrasounds this way and have also seen it happen out of sheer stupidity on the physician’s part. Both of which I think should be considered malpractice, but I guess wouldn’t be if I understand the bill correctly.
It is these”soft calls” that I see the law protecting. I’m not a lawyer, but not telling a patient that she needs to have her prenatal scan done by a specific gestational age if she were to want an abortion based on anomalies is withholding information. There was a well known case where I was a medical student of an OB that talked all his patients out of getting prenatal testing because they were “not reliable.” One woman who believed what he said had a baby with Down syndrome and sued for wrongful life and was ultimately successful. However, technically one could say that prenatal tests are not reliable because they are screening tools and designed to have a significant false positive rate. Under the Arizona bill, that woman might not have a case.
While I agree, doctor’s who get a positive result back and refuse to tell their patients about those test results (i.e. withholding the actual medical record) would not be protected by the bill (although you just never know), I believe that it offers protection to those doctors who perhaps explain tests with less “clarity.” And to me, that’s withholding medical information.
It’s a slippery slope.