Since the issuance of the Dobbs decision, there’s been significant discussion by lawyers, philosophers, healthcare providers and political leaders. The ruling has created uncertainty and confusion for those working in the healthcare space, and as lawyers, we are now being asked to advise our clients on myriad issues ranging from criminal culpability to the tax consequences of providing or paying for reproductive care. At the provider level, the questions we’re being asked are founded on the principle of autonomy. How can I provide appropriate care for my patient? Does my patient have the autonomy to make reproductive healthcare decisions? Is my autonomy as a provider different than it was two weeks ago?
The idea of autonomy is at heart of bioethics and is a foundational principle in clinical ethics and decision-making. And autonomy in reproductive medicine – that of the patient and that of the provider to recommend care for that patient – is now unclear in many states. This also applies to the autonomy of the clinical ethics committee, whose members help patients and clinicians through difficult and highly confidential decisions.
Having served on an ethics consult service and on the clinical ethics committee of an academic medical center for over 10 years, I know firsthand the unique role this committee plays in an institution’s culture and politics. When it comes to the intersection of law, medicine, and ethics, this is the room where it happens.
The ethics committee is often comprised of physicians, nurses, chaplaincy, hospital risk management or compliance, and a clinical ethicist. At some institutions, community members or former patients or parents of pediatric patients may also sit on the committee. Often, it is organized under a charter or as part of the medical staff bylaws, and there are rosters of members, minutes, and records kept of decisions made and consults provided. It is a confidential, but highly documented process.
The American Medical Association Code of Medical Ethics commends use of an ethics committee to guide patients, families, and healthcare professionals during “difficult” and “potentially life-changing situations.”[LG1] Ethics committees, it states, “offer assistance in addressing ethical issues that arise in patient care and facilitate sound decision making that respects participants’ values, concerns, and interests.” In addition to “facilitating decision making in individual cases,” clinical ethicists often participate in policymaking and training, helping bridge the gap and “manage the politics” between providers and hospital administration.
Most health system workforce members know their respective institutions have an ethics service, but few have insight into the ethics consultation process. Any consult involving reproductive issues or therapeutic abortion was likely handled within the four walls of the ethics committee, and depending on the structure of the committee and state law, the associated documentation enjoyed immunity from civil discovery pursuant to state peer review confidentiality laws. At some institutions, when issues related to abortion arise, committee members are given the option to recuse themselves, abstaining for personal reasons. However, in most instances, the entire ethics committee walks through the medical facts of the case and hears from the treating physicians and the consultant who met with the patient and family. The ethicist helps frame the issues, often assessing the “four quadrants” or a variation thereof:
- Respect for Autonomy: right to self-determination, right of the individual patient to make healthcare decisions;
- Beneficence: doing good and preventing harm;
- Nonmaleficence: doing no harm; and
- Justice: how to maximize the benefits to patients and society, with an emphasis on fairness and equality.
If, for example, the patient is pregnant with twins diagnosed with twin-to-twin transfusion, and the medical reality is such that fetal surgery will result in the death of one twin but the lack of intervention will almost certainly result in the death or severe disability of both babies, the ethics consult service may offer support to the family and provider team. The recommendations would be made in keeping with the principles of ethics and the hospital’s overall policy.
Post-Dobbs, depending on the state, this process will need to play out very differently. Healthcare institutions need to consider how the Dobbs decision will affect the role of an institution’s ethics committee and the status of its participating members, as there are increased liabilities and risks associated with participating in any consult involving reproductive healthcare. Healthcare institutions must assess, on a state-by-state basis, the increased risks and exposure to what may be their most confidential and closed-door committee.
Using Texas as an example, 30 days following the issuance of the Dobbs judgment, a trigger law will go into effect that adds a new definition of abortion and the unborn child. This trigger law does not amend or repeal existing civil and criminal penalties for, among other things, “aid[ing] or abet[ting] the performance or inducement of an abortion,” but expands the definition of unborn child to apply to “a human fetus or embryo in any stage of gestation from fertilization until birth.” There is also pending law in Louisiana that would give full rights to embryos, potentially criminalizing in vitro fertilization or the act of reducing a multifetal pregnancy – the latter of which is identified by the American College of Obstetrics and Gynecologists and the Society for Maternal–Fetal Medicine as a decision in need of analysis through an ethical framework or ethics committee.
It’s unclear how restrictive state laws will be applied to a medical situation like the one described above. Institutions must consider the legal impacts of Dobbs and the nature of the consults the ethics service accepts. For our healthcare clients, this may mean revisiting how the ethics committee charters are drafted, whether they still benefit from peer review or hospital committee privilege, and if they are still covered by the hospital’s D&O insurance policy if certain services are criminalized. Depending on state law, medical centers should prepare for grand jury subpoenas, civil investigative demands, or search warrants seeking evidence, proof or other instrumentality of aiding and abetting abortion – which may include the ethics committee’s involvement in a decision about therapeutic termination or referral to another medical center for the same. From committee minutes and agendas to recommendations entered into the electronic medical record, the ethics committee functions as an aggregator of data, and hospitals must plan accordingly.
BakerHostetler is supporting clients through these considerations and can offer guidance as these issues develop. If you would like to speak with a member of the BakerHostetler Healthcare Privacy team, please reach out to Kimi Gordy, a member of the Dobbs Decision Task Force or your BakerHostetler contact.
Kimi Gordy is a partner on BakerHostetler’s Healthcare Privacy and Compliance team and has a master’s in Medical Humanities, with an emphasis in clinical ethics, from the University of Texas Medical Branch. Her bioethics experiences range from perinatal hospice to the care of incarcerated pregnant patients.
 A Practical Guide to Clinical Ethics Consulting, Expertise, Ethos, and Power, Christopher Meyers (2007).
 See generally Tom Beauchamp and James Childress, Principles of Biomedical Ethics, 8th ed. (2019).
 There is a developing issue regarding the applicability of dormant abortion statutes from 1925. West’s Texas Civil Statutes, article 4512.2, et seq. (1974).
 See Texas Health and Safety Code Chapter 170A.
 Texas Health and Safety Code sections 171.201(7), 171.208.
 Multifetal pregnancy reduction. Committee Opinion No. 719. American College of Obstetrics and Gynecologists (2017, reaffirmed, 2020).