Balkinization: Intimidating Doctors?

Intimidating Doctors?

Mark Graber

The following is an excerpt from a short essay just published in the New England Journal of Medicine. Dr. Michael Green, I should note, is on the board of the journal and a professor of obstetrics and gynecology at Harvard Medical School

"The Intimidation of American Physicians — Banning Partial-Birth Abortion," Michael F. Greene, M.D.

A Dutch oncologist was describing to an audience of American physicians in Amsterdam the circumstances under which euthanasia was performed in the Netherlands at a time when the practice was illegal yet widely used. Each act of euthanasia was reported, after the fact, to the local prosecutor, who investigated the case and routinely declined to prosecute any treating physician who had acted transparently and in the best interest of the terminally ill patient. The American physicians were incredulous that their Dutch colleagues were willing to place themselves at risk for criminal prosecution by providing care that might, on later review, be determined to have violated criminal law. The Americans had no confidence that their own judicial system would judge them fairly under similar circumstances, even if they had acted in good faith and in the patient's best interest.

This lack of confidence that the U.S. judicial system would treat them fairly has cast a pall over those who practice reproductive medicine as they consider the recent decision by the Supreme Court, in Gonzales v. Carhart, to uphold the Partial-Birth Abortion Ban Act of 2003. The ruling creates an intimidating environment surrounding pregnancy terminations at more advanced gestational ages. The decision to pursue a second-trimester abortion is never taken lightly and usually results only after anguished discussions among the patient, her loved ones, and her health care providers. Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill.
Defenders of the law point out that its scienter requirement means that physicians can be prosecuted only if it can be demonstrated that the provider "deliberately and intentionally" delivered a living fetus and performed an "overt act" to kill it. But this protection seems fragile to practitioners. In the situation just described, how would the vital status of the partially delivered fetus be determined, and by whom? The only way to complete the delivery through the incompletely dilated cervix may be to reduce the size of the after-coming head. Would any procedure to accomplish that goal be seen as facilitating the delivery? Or as intentionally killing the fetus? Once the prosecutor knocks on the door, the onus will be on the physician to show that there was no intent to perform a banned procedure. Lacking confidence in the judicial system, physicians may choose to avoid performing second-trimester surgical abortions, thus restricting access to them, perhaps even if the mother's life is in jeopardy.

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Back to my voice. Connect the dots. The legal profession is embarrassed by the antics of the Bush Justice Department. Even conservative experts on the Middle East never endorsed Bush Administration policy in Iraq. The Bush Administration ignores the ever louder scientific consensus that something must be done immediately about global warming to prevent environmental catastrophe. What reasons would doctors have for thinking their profession would be treated with any more respect?

Posted 9:12 PM by Mark Graber [link]

Comments:

A Dutch oncologist was describing to an audience of American physicians in Amsterdam the circumstances under which euthanasia was performed in the Netherlands at a time when the practice was illegal yet widely used. Each act of euthanasia was reported, after the fact, to the local prosecutor, who investigated the case and routinely declined to prosecute any treating physician who had acted transparently and in the best interest of the terminally ill patient. The American physicians were incredulous that their Dutch colleagues were willing to place themselves at risk for criminal prosecution by providing care that might, on later review, be determined to have violated criminal law. The Americans had no confidence that their own judicial system would judge them fairly under similar circumstances, even if they had acted in good faith and in the patient's best interest.

How horrible!

Unlike in the Netherlands where the Dutch prosecutors declined to enforce the law, in the US physicians cannot rely upon the American prosecutors to look the other way.

What is the world coming to?

This lack of confidence that the U.S. judicial system would treat them fairly has cast a pall over those who practice reproductive medicine...

"Reproductive medicine?" Good heavens abortionists think highly of themselves. We are getting into 1984 linguistic territory here. Abortion is all about halting (not assisting) reproduction by killing the resulting children.

The ruling creates an intimidating environment surrounding pregnancy terminations at more advanced gestational ages...Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill.

"should slip out?" What a load.

To get to this point, the abortionist has to dilate the cervix, maneuver the child into the breach position and then pull the child out feet first until only the head remains. This is hardly an accident.

The only way to complete the delivery through the incompletely dilated cervix may be to reduce the size of the after-coming head. Would any procedure to accomplish that goal be seen as facilitating the delivery? Or as intentionally killing the fetus? Once the prosecutor knocks on the door, the onus will be on the physician to show that there was no intent to perform a banned procedure.

Translation into plain English: If the poor persecuted abortionist is forced to tear a hole in the base of the scull of the child and vacuum out the child's brains until she dies, the prosecutor might mistake this as "intentionally killing" the child.

Who could possibly come to such a bizarre conclusion?

# posted by

Bart DePalma : 11:17 PM

"Reproductive medicine?" Good heavens abortionists think highly of themselves. We are getting into 1984 linguistic territory here. Abortion is all about halting (not assisting) reproduction by killing the resulting children.

Do you think there's an "abortionist school" where doctors only learn one technique and then practice it-and only it--the rest of their lives? What a dark world you must live in!

Or might you be reducing their jobs a bit by denying the possibility that the term "reproductive medicine" describes the full gamut of their job activities?

# posted by

PMS_CC : 11:30 PM

I'm with Bart in this case: Judicial fairness rests on their systematically refusing to enforce a law baring doctors from killing patients???? And, of course, let's not forget the flip side of that, which is a fair number of family members complaining that their parents have been murdered by doctors, and finding that the legal system has no interest in pursuing the case. (If you have a policy of not looking when people die under a doctor's care, you've got no way of distinguishing euthanasia from plain old murder.)

"Or might you be reducing their jobs a bit by denying the possibility that the term "reproductive medicine" describes the full gamut of their job activities?"

Oh, come off it: Your average specialist in reproductive medicine has so little interest in performing abortions, that the pro-'choice' movement has developed an interest in laws requiring abortion techniques to be taught, and hospitals to have abortionists on hand. Whole states, we are told, are so devoid of abortionists that interstate travel to obtain them is a necessity. How can there be a shortage of abortionists, and not gynocologists, if abortion is not a medical specialty?

# posted by

Brett : 7:03 AM

Once the prosecutor knocks on the door, the onus will be on the physician to show that there was no intent to perform a banned procedure.

Just curious: How do you think this is going to happen? Enforcement, I mean. Abortions are not, as far as I know, normally videotaped; nor is there a prosecutor or police officer present observing the methodology used. And I'm having trouble even imagining how a prosecutor is going to get probable cause to investigate such a thing, short of an abortion doctor announcing on his website, "I'm going to conduct a partial birth abortion as defined in federal law this Tuesday at 10 a.m., and I'm doing so intentionally."

What am I missing? How is a law that touches only on methodology ever going to be enforced in any way?

# posted by

Stuart Buck : 9:50 AM

L.S.,

(Disclosure: I am Dutch)

I think we can all agree that prosecutors have some latitude in deciding which cases they prosecute. AFAIK, most jurisdictions have some way for victims of crimes to try to override a prosecutor's decision to drop a case, but at least here such attempts are extremely rare, and their success even rarer. (I had to check the Code of Criminal Procedure to see how this works again. It's in art. 12 - 12 l, and it requires a written complaint to the Court of Appeals.)

The decision of the prosecutor will (hopefully) depend to some extent on his sense of priority; the more severe the crime, the higher the percentage of cases that will actually be prosecuted. Normally, one would expect felony cases to be prosecuted as long as there is sufficient evidence. Nevertheless, it is possible that some felonies are considered insufficiently severe to necessitate going to trial in every case. They might be settled with a transaction, which limits the penalty that can result, or they might not be prosecuted at all.

Ideally, one would like for the prosecutor's office to let such an assessment depend on the general opinion in society, and one would like it to be systematic, meaning that there is a stated policy. Such policies are in fact quite common in the Netherlands, dating back to the policy of not prosecuting catholics in the 16th century, and is often a precursor for legalisation. At the moment, such a non-prosecution policy is still in place for marijhuana, which is formally still illegal, just like it used to be in place for many decades for prostitution, euthanasia, and abortion. If a prosecutor were to make an exception to the policy, he would normally be declared inadmissible on the grounds that this is an arbitrary prosecution.

Ultimately, this is a policy not dissimilar to the decision a few years ago to stop prosecuting the numerous drug smugglers who arrived at Amsterdam Airport literally stuffed with dope. There simply weren't enough prisons, prosecutors or judges to deal with them all so the government decided to give priority to catching them and sending them back, while focusing court capacity on the kingpins.

# posted by

martinned : 9:58 AM

Bart,

As I pointed out in a previous thread, there are OB/GYN who perform abortions as part of their practice.

As to Robert's statement about the rarity of doctor's who are willing to perform abortions, it is likely due to Bart's claim of moral persuasion. The sort of moral persuasion that has such doctors working in unmarked buildings that have extensive internal and external video surveillance, as well as buzz in and out of patients, who are shuttled to and from the clinic to avoid their personal cars from being ID'd. All because of the moral persuasion that has threatened such doctors (and their patients) with physical and lethal harm. Swing a big enough stick, and some people duck.

# posted by

Fraud Guy : 10:33 AM

Stuart asks the question that I thought about as well. I don't for one second discount the harmful effects that Carhart II is likely to have down the road on the erosion of reproductive choice rights. But practically speaking, I do wonder if the chilling effect on OB-GYN's does seem to be overplayed a bit, given what seems to be the extreme unlikelihood of prosecution. Am I missing something?

# posted by

Anonymous : 11:04 AM

Just curious: How do you think this is going to happen? Enforcement, I mean. Abortions are not, as far as I know, normally videotaped; nor is there a prosecutor or police officer present observing the methodology used.

Doctors are obligated to record in their surgery notes the exact procedures used. It's not easy to pretend that X was done instead of Y because different drugs and instruments may be used. That leaves the doctor with the option of falsifying the surgery notes in a way that's fairly easy to prove and which could cost him his license, or describing the procedure accurately and thereby admitting to the crime.

In addition, there will be at least one nurse and an anesthesiologist in the room. Maybe no one will complain, but that's putting a lot of trust in others, given the stakes.

# posted by

Mark Field : 12:05 PM

"Once the prosecutor knocks on the door, the onus will be on the physician to show that there was no intent to perform a banned procedure."

Isn't it the prosecutor's burden to prove all of the elements of the crime, including scienter, beyond a reasonable doubt? (In re Winship, etc).

# posted by

Amy K : 12:50 PM

Doctors are obligated to record in their surgery notes the exact procedures used.

But the key question is, who views the notes? And how does the prosecutor get hold of them? Recall that when the government tried to subpoena doctors' records in partial-birth litigation, the doctors and hospitals were successful in blocking the subpoenas on privacy grounds. (See here, for example.)

# posted by

Stuart Buck : 2:47 PM

But the key question is, who views the notes?

Lots of people. The nursing staff, hospital adminstrators, insurance companies, and government regulators, for example.

Recall that when the government tried to subpoena doctors' records in partial-birth litigation, the doctors and hospitals were successful in blocking the subpoenas on privacy grounds.

I doubt that tactic will succeed in a criminal case, especially now that the SCOTUS has upheld the law.

# posted by

Mark Field : 3:10 PM

Lots of people. The nursing staff, hospital adminstrators, insurance companies, and government regulators, for example.

How do you know this? Take the Kansas abortion doctor, George Tiller. Or the Nebraska doctor Leroy Carhart. They're in stand-alone abortion clinics; no hospitals would normally be involved. Not all insurance companies cover abortion.

I know there are government reporting requirements in most states, but as of 1998 at least, the Alan Guttmacher Institute reported that "data on certain procedures—including dilation and extraction, the medical procedure that most closely approximates characterizations of "partial-birth" abortion—are also unavailable because states and CDC collect data under broader categories."

Do you claim that state reporting requirements have changed since 1998, in a way that would allow federal prosecutors to make a case under the current federal law? If so, can you substantiate that claim?

# posted by

Stuart Buck : 5:19 PM

Considering the "natural experiment" that Judge Easterbrook mentioned in his prescient opinion here, it would be interesting to know if there was ever a prosecution of an alleged partial-birth abortion in any of the 10 or so states that banned partial birth abortion prior to Stenberg, but had not been enjoined by a federal court.

# posted by

Stuart Buck : 6:09 PM

Brett,
I'm with Bart in this case: Judicial fairness rests on their systematically refusing to enforce a law baring doctors from killing patients???? And, of course, let's not forget the flip side of that, which is a fair number of family members complaining that their parents have been murdered by doctors, and finding that the legal system has no interest in pursuing the case. (If you have a policy of not looking when people die under a doctor's care, you've got no way of distinguishing euthanasia from plain old murder.)

But they do have a method to distinguish between euthanasia and plain old murder, one of which is if the family comes knocking at the prosecutor's door, it's pretty clear it wasn't euthanasia. The doctor wouldn't/shouldn't have gone ahead if it was controversial with the family.

We have a very bureaucratic system of law and government, where we focus on process over substance. The Dutch have a bit more faith in personal responsibility, community response, and self-regulation than we do. The expect that their prosecutors can show some sense; that if they don't, other lawyers will drum them out; that the community will be on their ass if they don't act properly.

Basically, they have a sense of local consensus that we don't. Instead, we act by regulation. They are a fairly small country, which allows more informal methods of regulation, and informal democracy as opposed to our explicit system.

# posted by

RandomSequence : 7:29 PM

While random sequence is probably right that the dutch rely more on societal consensus than we do in America we really don't do things that much differently. The difference between the US and the Netherlands is just that many people here feel very strongly that assisted suicide is very bad. The idea that prosecutorial discretion isn't just as much a factor in what crimes get charged here is just wrong.

I mean do you really believe prosecutors are going to charge a (white middle class) parent who gives their adult kid a vicodin because they are in pain or gives their them a valium on the plane the same way they will charge less reputable looking individuals trading/selling their pills? Do you believe that prosecutors are no more likely to charge someone for manslaughter if they hit someone with their car because they were getting head or rushing to get to their satanic orgy than if they were horribly tired after working 14 hours to feed their family? I mean cmon you'd have to be crazy to think that a prosecutor's beliefs about whether the offender is just a nice guy trying to do what's right or a no good parasite doesn't hugely influence whether he charges or not.

If you really believed this you couldn't explain the existence of medical marijuana cooperatives or dispensarys in California. The DEA can go after them and they do go after those they think are dispensing for recreational use despite them all being illegal under the same law.

The problem I have with our system is that we pretend we believe that 'the law is the law' instead of applying case by case judgement as to whether something is really worth prosecution despite the huge amount of discretion prosecutors actually exercise. If we really enforced the laws as they were written and every old lady who gave her friend a valium got convicted of the same crimes as the black kid who sold his script the laws would be a lot different. Unfortunately since their is this myth that the law is just the law when a prosecutor fails to show mercy and prosecutes anyway he isn't the subject of public pressure to back off.

The net result of this all is that we lack both forms of structurally corrective pressure on the enforcement of the law. Congress/state legislatures aren't pressured to carefully frame the law to exclude the obviously unfair cases. If we applied the drug laws literally to white middle class people who let their relative have a valium to sleep on the plane pretty quickly the laws would be changed. On the other hand if we accepted that prosecutorial discretion and mercy are essential aspects of the law public pressure would be applied to prosecutors to show mercy in intuitively unfair cases.

# posted by

TruePath : 4:51 PM

logicnazi: "The idea that prosecutorial discretion isn't just as much a factor in what crimes get charged here is just wrong."

But it isn't done as openly. The Dutch have a clear policy of using prosecutorial discretion during a trial period for new laws. They can leave that in place for decades before they actually institute laws on the basis of the results seen in that trial period. And it's not just prosecutors, they also openly trust doctors to act by guideline and consensus, rather than bureaucratic regulation.

Of course, in reality we have a great deal of discretion. But, as far as I know, it's rarely by policy. We lack the kind of consensus that occurs in other countries. It's all done implicitly, which actually invites more abuse and corruption. But I doubt we could do it any other way. In some ways, our mentality is closer to the Russians than many of our allies - process over substance. It's kind of humorous, ain't it?

# posted by

RandomSequence : 9:08 PM

I absolutely agree with that even if the Act prohibits abortion partially, it would result in the entire situation surrounding abortion. I think the Act will be a heavy burden for women who want to have abortion.
I understand that government has the interest to protect a fetus, which is going to be a human being; however, I still believe the rights of women should be respected as well. There are some women who get unexpected pregnant, such as as a result of rape or teenage pregrancy. If there is a burden, or that's to say physician's hesitation to perform abortion, those women's rights will be threatened.
Moreover, the Act regulates so sprecise in one hand, but it's also so ambiguous in another. For example, as Mark Graber states;

physicians can be prosecuted only if it can be demonstrated that the provider "deliberately and intentionally" delivered a living fetus and performed an "overt act" to kill it. But this protection seems fragile to practitioners.

Who decides the physicians performance violates the Act? I think it will surely affect on their decision to perform abortion.
I hope this Act will not result in what I'm predicting.

# posted by

shizutigers : 10:59 PM