December 18, 2019 5:52PM

Some Thoughts about the Ruckus over the Ohio Abortion Bill

There has been major pushback from many Ob/​Gyn specialists, reacting to a bill introduced in the Ohio State House of Representatives in late November, HB 413, that would outlaw abortion in almost all circumstances. Much of the pushback from the medical profession centers around Section 2904.35 of the more than 700‐​page bill. The section would exempt physicians from prosecution for “abortion murder” or “aggravated abortion murder” for actions leading to the death of a fetus if they:

(A) Using reasonable medical judgment, believe[] it is highly probable that the pregnant woman will die from a certain fatal condition before her unborn child is viable;
(B) Perform[] a surgery, before the unborn child is viable, for the sole purpose of treating the pregnant woman’s fatal condition;
(C) Take[] all possible steps to preserve the life of the unborn child, while preserving the life of the woman. Such steps include, if applicable, attempting to reimplant an ectopic pregnancy into the woman’s uterus.

Many doctors are particularly incensed over subsection (C), which discusses reimplanting the ectopic pregnancy into the uterus. Medical experts have vigorously complained that there is no such procedure. Ob/​Gyn specialist Daniel Grossman of the University of California San Francisco went so far as to call the treatment, initially mentioned in an earlier version of the bill, as “science fiction.” A twitter storm has erupted over this section of the bill. Dr. David Hackney, a Cleveland obstetrician, tweeted:

The new Ohio HB413, p.184: To avoid criminal charges, including murder, for abortion, a physician must “…[attempt to] reimplant an ectopic pregnancy into the women’s uterus” I don’t believe I’m typing this again but, that’s impossible. We’ll all be going to jail.

To be fair, Dr. Hackney is not accurately quoting the legislation. The bill does not state a “physician must attempt to reimplant” the ectopic pregnancy (my emphasis added). Rather, the language states that physicians are exempt from prosecution if they attempt to reimplant the pregnancy “if applicable.” Because medical science has not yet figured out how to reimplant the pregnancy, it is not applicable. At least not yet.

Physicians rightly object when uninformed or misinformed legislators intrude on the practice of medicine and the patient‐​doctor relationship. But legislation such as this also creates medical ethics and medicolegal dilemmas, regardless of where one stands on the abortion issue.

The doctrine of informed consent has been a pillar of medical ethics for almost 100 years, spurred by Mary Schloendorff, who won her case against New York Hospital in 1914 after having a hysterectomy performed on her without her consent. Judge Benjamin Cardozo stated in his ruling on that case:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.

Under the doctrine of informed consent, as a general surgeon, it is unethical—and in almost all states it is illegal—for me to treat or perform a procedure on a patient to which they do not give consent. For example, I cannot perform a lifesaving operation or give a lifesaving blood transfusion to a patient against their will. I can’t even remove a normal appendix from a patient after successfully removing a diseased gallbladder without that patient’s informed consent. An Ob/​Gyn doctor cannot perform a lifesaving operation for ectopic pregnancy if the woman does not grant permission.

For the sake of argument, assume medical science develops a means of reimplanting an ectopic pregnancy into the uterus. And assume all doctors who treat ectopic pregnancy feel competent in performing reimplantation and believe it to be a safe and effective procedure. As with any procedure, it would not be risk‐​free. If a doctor must obtain informed consent to operate for the life‐​threatening ectopic pregnancy, must consent also be obtained for the second operation—the reimplantation? Beyond medical ethics concerns, does a law requiring reimplantation in this situation conflict with existing informed consent law?

One can argue that the law only pertains to the punishment of doctors who fail to perform reimplantation, and that a doctor can refuse to perform the lifesaving ectopic pregnancy operation unless the patient consents to reimplantation. If the patient refuses reimplantation, the doctor is faced with letting the patient die or violating the law and risking a murder charge. And the patient must either consent to reimplantation or risk exsanguinating from a ruptured ectopic pregnancy.

Patient and doctor both have a Hobson’s choice here. The autonomy of both comes under attack.

This is just one of many unforeseen issues that arise when lawmakers try to micromanage the practice of medicine and the patient‐​doctor relationship.