Abortion, Physicians, and Changing Jurisprudence. Fasten Your Seatbelts.

Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool below.

Before Roe v. Wade, abortion was legislated by the states. Some states permitted it; others didn’t. After Roe, abortion was available across the country. The Supreme Court ruled states could not legislate against abortion because of a constitutional right to privacy, among other reasons. Roe v. Wade has been litigated repeatedly in the courts. And the Supreme Court has revisited the issue several times.

The makeup of the Supreme Court is changing. Abortion jurisprudence is also likely to change and the issue may revert to the states. If so, what does this mean for physicians who never performed the procedure and never will?

This post takes no position on the Supreme Court’s judgment, now, or in the future. But physicians may get sucked into the drama.

Let me explain.

Today, laws define when an abortion can and cannot be performed. These are artificial guardrails separate from biology. They are merely the rules society has settled on. Yes, some believe abortion in any situation is murder. Others believe abortion in situations other than to save the life of mother is murder. Still others believe abortion in situations other to save life of mother, rape, or incest is murder. Others see no problem with abortion unless and until the child is viable unassisted. And everything in between. Quite a spectrum.

In these situations, “life” is defined differently. To different people, the beginning of life has different meanings.

The law makes such distinctions all the time.

Brain death is not the same as biological death. The law has conflated the two. And as I write, experts from all walks of life are meeting to update the definition of brain death that was codified into law decades ago. Today, not every state treats brain death the same. It’s possible to be alive in one state and dead in another, using each state’s definition of brain death.

The law also arbitrarily defines reaching adulthood at the age of 18. Indeed, we all know some precocious adolescents who act like adults at the age of 14. And we know of others in their 20s who act like infants. Yet the law makes age 18 a hard cutoff. Once an adult, you can vote. Oddly enough, as an adult having reached the threshold age of 18, you cannot purchase alcohol. At 18, you can die for your country by serving in the military but cannot be trusted with a drink.

If the issue of when a fetus is considered a human being is returned to the states, nothing would stop the legislature from defining life as beginning at fertilization. If so, then abortion by medication or surgery is not the only conundrum. IUDs would also be challenging. An IUD prevents an embryo from properly implanting in the uterus, dooming it to death.

Now for a thought experiment. Would IUDs be foreclosed from being sold or implanted in such states? What if the IUD is implanted in a state where it is legal, and that patient moves to a state where it is illegal? Must an OB-GYN who learns of this ask to remove the device? If not, is that physician guilty of some crime? Will there be an obligation to report their knowledge to some authority, similar to reporting that is mandated for prescriptions of schedule II drugs? What if the woman refuses to have the IUD removed? Will that woman be imprisoned to preclude an opportunity for an embryo to form? What if there’s a complication related to the IUD’s removal, an operation the woman never wanted anyway? Any changes needed for fertility clinics?

Today, the vast majority of physicians do not perform abortions. Today, most physicians are not directly responsible for any practical implications from the woman’s decision. I’m not Nostradamus, so I cannot predict the future. And any changes that come may be incremental and not quantum.

Still, if states are allowed to define life as beginning at fertilization, many changes will be thrust upon many doctors. Fasten your seat belts.

What do you think? Let us know your thoughts in the comments below.

Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool below.

Jeffrey Segal, MD, JD, FACS

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.