My sister Julie was almost out of birth control pills. She had just moved to a new city, so she made an appointment with the only female doctor in her new HMO who could see her before she left town for a business trip. When she requested a refill, the doctor refused for religious reasons. “I don’t prescribe birth control,” she said. “You’ll have to see someone else for that.”
NIFLA v Becerra, a case decided by the U.S. Supreme Court on Tuesday, concerned crisis pregnancy centers, many of which are religiously affiliated. These centers take the opposite tack with their religious views, actively attempting to persuade or prevent women from having abortions. The deceptive practices some of them use to get women in the door led their opponents in this case to dub them “fake women’s health centers.”
In response to concerns about patients being misled, California passed a law that required unlicensed clinics that primarily serve pregnant women to notify women that they are not licensed to provide medical services, and licensed clinics in this category to notify women that the state provides free or low-cost contraception, prenatal care and abortion services.
As a lawyer, I’m interested in the obvious First Amendment issues raised by these situations. But as a medical ethicist, I worry that an outdated image of informed consent is at the heart of the problem.
Traditionally, your right to have the information you need to intelligently refuse or consent to healthcare begins after you become a “patient.” That status starts after you meet with a health care provider.
However, the refusal to provide full medical information or the full range of standard medical care for religious reasons means we need to rethink the concept of “informed consent.” We need to move this principle back in time, so it includes a person’s preliminary decision to consent to becoming a patient of a particular physician or facility.
Individuals and organizations have a right to limit the healthcare they provide based on their religious beliefs. And people who want the full range of healthcare have a right to not become patients of these physicians and facilities.
The California law reviewed in NIFLA v Becerra is a reasonable attempt to insure that women know what kind of facility they are about to consent to become “patients” in. However, the Supreme Court on Tuesday ruled 5-4 that the California law “likely” violates crisis pregnancy centers’ right to free speech, and it remanded the case back to a lower court for a hearing on the evidence.
The NIFLA ruling is surprising, because in the 1992 case of Casey v Pennsylvania, the Supreme Court rejected the free speech claims of physicians and facilities providing abortion, and instead upheld Pennsylvania’s requirement that they tell women about state support for abortion alternatives as part of informed consent for abortion.
In Casey, Justice Stephen Breyer wholeheartedly joined in the Court’s decision. But in NIFLA, the inconsistency drove him to write the dissent: “If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”
The Supreme Court’s double-standard in NIFLA is underscored by Justice Anthony Kennedy, who voted with the majority. He refers to California’s desire to inform women it provides free or low-cost medical care for any reproductive decision they choose as the state’s “preferred message advertising abortions.” This removes any pretense that Kennedy and the three other justices who joined his concurrence are concerned with informed consent.
Instead, it is they who are engaged in viewpoint discrimination, endorsing forced speech of state messages they agree with, and rejecting all others.
Kennedy also tut-tuts about “the history of authoritarian government” imposing messages on its citizens, a comment that feels Orwellian at a time when the current administration has proposed a “domestic gag rule” intended to prohibit doctors in Title X clinics from telling poor women about their legal right to abortion.
Women who unknowingly become patients of physicians or facilities that follow religious restrictions are unfairly forced to waste time and money. In my sister’s case, the doctor still charged her insurance the usual fee for a check-up, and Julie still had to pay the usual co-pay, even though she did not get the legal and standard medical care she came for. The physician gave her no referral; it was up to Julie to take the time to find a second doctor and pay for a second appointment.
Women who unknowingly go to crisis pregnancy centers, or who in the future might have information and services withheld from them in Title X clinics, may also experience unnecessary health risks because information was withheld, or because this unnecessary detour delayed them in getting the standard care they wanted.
Individual and institutional health care providers have First Amendment rights, but those do not include the right to try to trick people into becoming patients.
When I told my sister it was indeed legal for a doctor to refuse to prescribe contraception, she remained angry that she wasn’t told about her doctor’s limitation in advance. “It’s only fair. If a doctor has a religious right to choose what they will prescribe, then every new female patient should be told before making an appointment, ‘This doctor has these restrictions, are you okay with that? If not, here’s an alternate doctor who does not have those restrictions.’ It has to be an equal playing field.”
Pregnant women considering consultations at crisis pregnancy centers deserve the same thing.
Katie Watson is the author of “Scarlet A: The Ethics, Law and Politics of Ordinary Abortion” (OUP 2018), and she is an Associate Professor of Medical Social Sciences, Medical Education, and Ob/Gyn at Northwestern University’s Feinberg School of Medicine.
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