Sen. Marsha Blackburn (R-Tenn.) took the stage at the "Rally to End Child Mutilation" in Nashville, Tennessee, last month in front of demonstrators, including far-right Proud Boys, to endorse the message that Vanderbilt University Medical Center was maiming children and needed to be stopped.
“To protect our children,” a chorus of state legislators and conservative pundits repeated in turn, they would seek to ban gender-affirming surgeries and hormone therapy for transgender minors. If enacted, Tennessee would become the fourth state in the country to do so.
The Nashville event was part of a larger campaign that has subjected healthcare providers to restrictive new laws, jeopardized their funding and exposed them to violent threats.
The perpetual debate about who gets the final say in clinical decisions is manifesting in new ways as state policymakers enact a patchwork of restrictions or bans on specific treatments related to sex and reproduction to which they have religious, moral or political objections. Practices deemed safe and effective by medical experts are being criminalized by Republican officials who say they are protecting children. As providers grapple with the ramifications of the new legal landscape, some are limiting services, which can harm patients.
In addition to healthcare services for transgender people, access to abortion is being limited, and reproductive rights advocates are concerned that other types of medical care, such as contraception and in vitro fertilization, may be next. Providers are already contending with a wave of bans or restrictions on abortion since the Supreme Court overturned Roe v. Wade in June, ending the federal right to abortion and allowing states to impose new limitations on the procedure or to outlaw it entirely.
Healthcare is heavily regulated and few providers would argue the government has no role to play in overseeing medical practices. Pharmaceuticals and medical devices must meet Food and Drug Administration standards. Hospitals, nursing homes and other providers must abide by safety and quality rules. Medical professionals must be licensed. Many regulations are linked to participation in Medicare and Medicaid, which theoretically is voluntary, and use the lure of government reimbursements to encourage or discourage certain clinical practices.
Bans on trans healthcare or abortion are different, said Mark Silberman, vice chair of the healthcare practice group at the law firm Benesch. “The argument has previously been whether or not it will be paid for,” he said. “But now what we’re talking about is whether or not people will have access to it—and that is a fundamentally different energy level.”
Fourteen states have implemented total bans on abortions and created criminal sanctions for providers who administer them. In Texas, for example, abortion is banned at all stages of pregnancy without exceptions for rape or incest. Performing an abortion in the Lone Star State is now punishable by a life prison sentence and civil penalties that could exceed $100,000.
Most state laws have narrow exceptions for when an abortion is legal, including when a patient’s life is in immediate danger. Yet that policy is forcing clinical teams to determine how close a patient must be to death to lawfully warrant the procedure, creating thorny ethical dilemmas for physicians and their employers.
In Tennessee, where providing an abortion can lead to a 15-year prison sentence, an obstetrician sent a pregnant woman at risk for severe preeclampsia on a six-hour ambulance ride to North Carolina to get the pregnancy terminated before her kidneys failed, the Wall Street Journal reported. In Wisconsin, a woman bled for 10 days in an emergency department after doctors declined to remove fetal tissue related to a miscarriage for fear of criminal prosecution, according to the Washington Post.
Under these conditions, providers are compelled to limit their medical arsenal and practice with targets on their backs. The patients affected by these bans are initiating legal action that has massive implications for physician autonomy. Both of these groups are attempting to convince courts that the medicine’s evidence-based approach, decades of research and patients’ desires should supersede politicians’ opposition to medical services they aren’t receiving.
A dispute over rights
Constitutional questions surrounding patient-provider decisions have circulated for more than a century. But the dispute is intensifying, American Medical Association president Dr. Jack Resneck said in an address about government interference and disinformation before the AMA's House of Delegates on Nov. 12.
“More and more, we are seeing attempts to undermine the work of organized medicine by those who seek to divide,” he said.
Courts presented with the issue have historically attempted to balance patients' and providers' rights with the government's right to act for the greater good, said Christy Tosh Crider, chair of healthcare litigation at the law firm Baker Donelson.
In 1905, the Supreme Court ruled that government-mandated smallpox vaccinations were a legitimate use of state power to protect public health. In 1997, the high court ruled a Washington state ban on physician-assisted suicide was proper, in part because the state had a right to preserve human life. Under "Right to Try" laws for experimental medical treatments, the federal judiciary has repeatedly affirmed an individual right to medical autonomy.
Now, courts are litigating whether trans teens have a constitutional right to access gender-affirming treatment under the equal protection clause of the 14th Amendment. State attorneys general contend laws can regulate these practices through their police powers in the interest of minors. Patients challenging bans argue they have a right to make health decisions independently with guidance from clinicians.
Trade associations and patient advocacy groups are filing briefs in support of patients, citing decades of research and evidence. The U.S. Justice Department maintains the state laws banning or severely limiting abortions conflict with federal statutes that require doctors to provide pregnant patients with medically necessary treatment.
Test cases abound of when a patient’s life is at risk enough to perform an abortion under vague laws and challenging abortion-related prosecutions as further intrusions of the government into medical decisions, Silberman said.
“Sitting down with individual patients and figuring out what their conditions are and figuring out what their treatments should be in alignment with science and with the values of the patient is incredibly complicated. It makes it even more difficult to have politicians that are far away from the exam room or law enforcement officers put themselves on physician's shoulders and try to second guess all that decision-making,” Resneck said in an interview.
Trade organizations representing providers, such as the AMA, the American Academy of Pediatrics and the Children’s Hospital Association, are fighting new laws governing medical practice in court and seeking federal support. They are up against elected officials, predominantly Republican, and conservative political organizations including Americans United for Life, the National Right to Life Committee, Tea Party Patriots and the National Republican Redistricting Trust.
An uncertain legal landscape
Bans stemming from policymakers' moral objection to specific medical practices are clashing with physicians' professional and legal duty to provide quality care to their patients. The conundrum is sparking ethical concerns for providers about whether to treat someone and risk criminal prosecution or follow the law and risk a malpractice lawsuit, said Dr. Matthew Wynia, director of the Center for Bioethics and Humanities at the University of Colorado Anschutz Medical Campus.
Patients with ectopic pregnancies are having to travel great distances for lifesaving abortions. Trans teens in the midst of transitioning are having to halt mid-treatment, which has negative consequences for their mental health.
The decisions clinical teams make in these instances will play out in court over time and reshape the debate over the line between government and medicine unless federal authorities step in, Silberman said. Widespread uncertainty surrounds how the Supreme Court may eventually rule on these issues, given its recent propensity to disregard precedent, he said.
“There is going to be an unfortunate incident where someone is going to make law,” Silberman said. “What terrifies me is that I don’t know which way it’s going to go.”
The AMA's code of ethics states: “When physicians believe a law violates ethical values or is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal duties."
Fulfilling the latter obligation, however, exposes clinicians to severe consequences, which in some states could consist of felony charges, lost medical licenses, fines or some combination of those penalties.
“Physicians are going to be forced into determining how far they will advocate for their patients and at what point that advocacy has to fall aside due to the potential consequences of acting in their patient's best interest,” Silberman said. “As a general rule, those two things should not be at odds.”
Worries about running afoul of the law intensified after former Vanderbilt nurse RaDonda Vaught was convicted of criminally negligent homicide this year for a fatal medication error she made in 2017, Crider said.
“That made this threat of criminal prosecution for mistakes very real. And then you take that and you push forward to what we have seen after [the abortion ruling] with the criminalization of treatment of reproductive health, I think that our providers are now at a real climax of anxiety and just uncertain about how to proceed,” she said.
President Joe Biden's administration proposed restoring sexual orientation and gender identity to the list of protections under the Affordable Care Act’s anti-discrimination rules and has flexed the power of the Health and Human Services Department to increase access to abortion pills and providers.
But the executive branch's stance is determined by who is in charge. President Barack Obama's administration initially included discrimination protections based on sexual orientation and gender identity, only to have President Donald Trump's administration eliminate them a few years later.
“Our government is going to have to make some decisions, particularly at the federal level,“ Crider said. "It will need to come from Congress. In order for it to have teeth it needs to be the rule of law."