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How Medical Ethicists See the Proposed 'Gag Rule' on Abortion Referrals in Government-Funded Clinics

Pacific Standard spoke to secular and religious ethicists about the controversial proposal.
A Planned Parenthood in Chicago.

A Planned Parenthood in Chicago.

The Trump administration has proposed controversial new rules for clinics that get federal grants for providing reproductive care to low-income Americans. Among the proposed guidelines: Doctors and nurses can't refer a patient to abortion services unless the patient comes in saying she has already decided to have one. Even then, clinicians may only—and only if they choose to—"provide a list of licensed, qualified, comprehensive health service providers (some, but not all, of which also provide abortion, in addition to comprehensive prenatal care." And "[t]he list shall not identify the providers who perform abortion as such."

Reproductive rights advocates are calling it a gag rule. Ahead of the rule's publication, the White House argued it's not. Either way, because it describes in such detail what clinicians can and can't say to their patients, Pacific Standard wondered how it might intersect with the medical ethics doctors follow when laying out their patients' options.

We asked several ethicists to respond. Below are excerpts from our conversations.

Nancy Dubler, Adjunct Professor at the NYU Langone Medical Center Division of Bioethics

As a consultant on bioethics issues, what's your response to the proposed rules?

Your obligation, as a physician, is to the well-being of your patient. Your obligation is to provide the patient with all of the information about possible interventions that are relevant to the patient when making a decision.

[The rule] assumes that a woman who comes to a clinic knows that she is pregnant and what she wants. But many women who didn't choose to become pregnant may discover, at this first appointment, that they are pregnant. Therefore, you would think that a clinic that proposes to care for women would then want to have a physician who would provide, to the woman, all of the information that she would need to make a choice about whether and how to proceed.

What Title X does, in this new guise, is to intrude the federal government into the core of the doctor-patient relationship and deform that discussion so that it is guided not by the needs, wants, and desires of the woman, but by the some abstract notion of the appropriateness of abortion. That's pretty powerful for a government that says that it wants to do away with regulation.

They are trying to take the notion of a woman's federally protected—increasingly less so, but still protected—right to have an abortion and denigrate it as an inappropriate tool for family planning.

The rule talks frequently about not treating abortion as a "family planning" method. Do you think that it isn't? Abortion does help people control the timing and number of their children.

There are different ways of planning for your family. I think the majority of them are morally uncomplicated. The use of contraception is, for me, a morally uncomplicated matter. It's not for the Catholic Church, but I didn't notice that the government was run by the Catholic Church, the last time I looked.

Given the amount of debate in this country about it, abortion is obviously morally controversial. That's not to say that I don't support a woman's right to an abortion. I do, 100 percent, to the legal limit, and I think that limit is being attacked in an unconscionable way. But it is more morally complex, so I put it on a lower level of family planning and I want to keep it within a woman's reproductive right, but I want to discourage it as a method of family planning.

If this rule goes into effect, how should Title X clinicians handle the ethical conflict between what the rule requires and their duty to tell their patients about all of their options?

I would argue that any organization receiving Title X funds would have to have a large poster on the front that says: "Please note that under the terms of Title X services, this clinic is not able to discuss matters of abortion or refer anyone to an abortion."

Nancy Berlinger, Scholar at the Hastings Center, a Non-Profit Bioethics Research Center

What is your response to the proposed guidelines?

In ethics and under law, patients have rights to information about their own health care. The idea is that this is you. You're owed this information and, further, you need this information in order to make a decision about your health care.

I think the larger concern is: Are you allowed to talk about this as a potentially medically appropriate option, so that a woman could make an informed choice? Let's say a woman has just been confirmed to be pregnant and she's expressing concern about, "Oh, this was unplanned," something like that, would you be allowed to even mention that this was an option?

If an individual doctor or nurse objects to participating in abortion or even talking about abortion, he or she can withdraw from that, saying either "I'm going to step away from this" or "I'm not going to get a job there." The language is being used about 'protections,' but it doesn't seem that women are being protected. They're getting less information and potentially diminished access to services.

Title X supports contraceptive services, cervical cancer screening, STD testing—very straightforward reproductive health care for about four million patients, nationally, at about 4,000 clinics. If the gag rule forces a clinic that provides abortions to close because it's lost its Title X funding stream, this means less access to health care for low-income women. Patients with insurance and other resources, out-of-pocket resources, have options. They can go to a provider that takes private insurance, but patients who rely on the safety net or who live in rural areas with few providers, don't have those options. So that tends to be a big concern, that the blow of this falls very heavily on low-income women who use Title X clinics.

Barbara Golder, Editor-in-Chief of Linacre Quarterly, the Official Journal of the Catholic Medical Association

As a Catholic bioethicist, what do you make of the proposal?

Catholic bioethics says the dignity of the human person at whatever stage is primary. That's what drives our bioethics and, therefore, protecting the human person that is not capable of protecting himself is primary. Abortion is therefore not medical care, let alone basic medical care. Therefore there's no problem in having a rule that says: "This isn't medical care. We're not offering it."

There are always competing principles and you can't satisfy them all at the same time, so what we tend to do, in bioethics, is narrow it down to the disqualifying principle, the one where if this isn't met, we can't do this. The disqualifying principle is different in secular reasoning than it is in religious reasoning. The disqualifying principle for the people who were telling you that this is unethical and therefore cannot be done is the freedom of the provider to speak about options. The disqualifying principle for the Catholic bioethicist, for example, is: Does this require me to be complicit in an act that takes a human life? Two different principles, two different answers.

What about the argument that this rule is unfair because it disproportionately harms vulnerable, low-income women?

If you're talking about distinguishing among things that are morally equal, that might hold some merit to me, but when we're talking about destroying an innocent human life, that argument falls short. Moreover, I think another fundamental question we haven't asked as a society is: What is the role of government in this? How much and how far should government go in providing health care?

Maybe then in a perfect world, you would want to see some law that restricts access to abortion among higher-income women too?

You know what I would like to have? I want a world in which abortion is not so much illegal as unthinkable. You don't get that just through laws. And the reality of the world is, people with more money always have more options than people that don't. But I would like women of all kinds to see life in the womb as a gift, as vulnerable and to be protected as a positive thing in their lives.

These conversations have been edited for length and clarity.