Texas Abortion Law Creates Ethical Quandary for Doctors

The Texas law banning abortions after six weeks of pregnancy could present a profound ethical dilemma for doctors, who have an obligation to counsel pregnant patients on all their available options even if they don’t perform abortion procedures themselves.

Anyone who “knowingly engages in conduct that aids or abets” an abortion can be held liable under the novel law, which relies on private parties to bring civil lawsuits against violators. It’s a provision that could have a chilling effect on primary care doctors who are ethically and legally required to educate their patients so they can make an informed decision about their own medical care, health lawyers say.

“There’s real problems for the ethical practice of medicine for family physicians and OB-GYNs in Texas now because the aiding and abetting provision is really broad,” said Elizabeth Sepper, a law professor at the University of Texas at Austin School of Law. “Ethical informed consent would require that an OB-GYN or family physician, faced with a woman who had an intended pregnancy she wasn’t very excited about, to present all the options before her, and one of those options would be abortion.”

Gag Rule 2.0

Even if a doctor provided such non-directive counseling before six weeks, they could still be held liable for violating the law if a woman got an abortion in the state after six weeks, Sepper said.

“Perhaps more commonly what they’re going to have is women in front of them, who are beyond the six-week mark just because so few people find out they’re pregnant before then or are able to get in to see a physician,” she said. “Given that reality, what do they tell patients?”

The Texas law, which other states like Florida, Nebraska, and Ohio are looking to copy, has gotten pushback from the American Medical Association and several emergency physician groups, including the American College of Emergency Physicians.

“This significant overreach not only bans virtually all abortions in the state, but it interferes in the patient-physician relationship and places bounties on physicians and health care workers simply for delivering care,” AMA President Gerald Harmon said in a statement.

Health law scholars have likened the law to the Trump administration’s gag rule, which banned federally funded family planning providers that serve the poorest populations from referring clients for abortion. That rule was struck down by multiple courts, and the Biden administration has already issued a proposed rule to withdraw it.

“The Texas law definitely has the same impact to kind of disrupt the physician-patient relationship,” said Seema Mohapatra, a visiting professor of law at the SMU Dedman School of Law.

“That relationship is based on trust and open communication,” Mohapatra said. “Especially when people are in a vulnerable time, you expect your physician to be able to give you non-directive counseling about what your options are, and there’s a question about whether physicians are going to feel comfortable doing that.”

If they aren’t comfortable, Mohapatra added, that could be especially damaging for minority patients already wary of the health-care system.

Freedom to Discuss

The statewide anti-abortion rights group Texas Right to Life said the legislative intent of the law it helped craft was not to regulate the speech of medical professionals, and doctors are not facing a new dilemma.

Even before the May 2021 Texas Heartbeat Act, which the Supreme Court has allowed to take effect, some abortions after 20 weeks where prohibited in Texas, “so doctors have been dealing with this kind of question of what do we talk to our patients about in the case of Texas having a state law other states don’t,” said John Seago, the group’s legislative director.

Seago argues physicians are not obligated to talk to their patients about procedures that are illegal in their jurisdiction but can legally do so because abortions after six weeks are legal in other states.

“They have the freedom to discuss things that are legal in other jurisdictions,” he said. “This law doesn’t prohibit that and doesn’t seek to mandate the speech of physicians.”

The provision, however, isn’t clearly defined, law professors say, and puts general practice doctors like family physicians and gynecologists in a tough spot since women still have a constitutional right to an abortion.

As of today, Roe v. Wade is still good law, Planned Parenthood v. Casey is still good law, said Khiara Bridges, professor of law at UC Berkeley School of Law and faculty director of its Center on Reproductive Rights and Justice. Planned Parenthood upheld the essential holding of Roe that women have a constitutional right to an abortion.

“What this law does is make it dangerous and kind of ill-advised for physicians to counsel their patients about their constitutional rights,” she said. “It makes it ill-advised for physicians to offer, as a form of health care, a service that is still protected under the Constitution.”

Question of Accountability

Because the Heartbeat Act doesn’t define what would constitute aiding and abetting under the law, opponents have criticized it as being overly broad. Seago argues aiding and abetting is already defined by the state’s penal code and doesn’t rope in every possible connection to an abortion.

“Some rhetoric is overblown because judges deal with this every single day about what level of accountability individuals have,” he said.

Giving the address of someone a doctor knows will break the law is different than a doctor who asks their patient if they’ve considered abortion, he said.