February 1, 2023

Senator Marsha Blackburn (Republican from Tennessee) addressed the crowd at the “Rally to End Child Mutilation”, Nashville, Tennessee last month. She was joined by Proud Boys to support the message that Vanderbilt University Medical Center was killing children and must be stopped.

“To protect our children,” a chorus of state legislators and conservative pundits repeated in turn, they would seek to ban gender-affirming surgeries and hormone therapy for transgender minors. Tennessee, if the law is passed, would be the fourth such state.

Nashville was just one part of a wider campaign that had imposed new restrictions on healthcare providers, jeopardized funding, and made them vulnerable to violent threats.

The ongoing debate over who is in control of clinical decisions is manifesting itself in new ways, as state policymakers adopt a series of restrictions or bans that restrict or ban specific treatment options related to sex. Republican officials are trying to criminalize practices that are deemed safe and effective but not harmful by doctors. Some providers are restricting services to help patients as they deal with the new legal environment.

Access to reproductive services is not only being restricted for transgender persons, but also access to abortion. Reproductive rights advocates fear that other types such as contraception, in vitro fertilization and contraception may be affected. The Supreme Court’s June decision in Roe v. Wade has led to a number of bans and restrictions being placed on abortion. This effectively ended the federal right to abortion, and allows states to impose new limitations or outlaw abortion entirely.

Healthcare is highly regulated. Very few providers will argue that the government does not have a role in overseeing medical practices. All pharmaceuticals and medical devices must comply with Food and Drug Administration standards. Safety and quality standards must be adhered to by hospitals, nursing homes, and other providers. Licenses are required for medical professionals. There are many regulations that relate to Medicare and Medicaid participation, which is theoretically voluntary. They use the lures of government reimbursements as a way to encourage or discourage certain clinical practice.

Mark Silberman, vice-chair of the healthcare practice group at Benesch, stated that bans on abortion or trans healthcare are not the same thing. “The argument has previously been whether or not it will be paid for,” he said. “But now what we’re talking about is whether or not people will have access to it—and that is a fundamentally different energy level.”

Thirteen states have implemented total abortion bans and criminal sanctions for those who administer them. Texas, for instance, has a ban on abortion at all stages of pregnancy. A life sentence in prison and civil penalties of up to $100,000 are now the punishments for performing an abortion in Texas.

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Most state laws have narrow exceptions for when an abortion is legal, including when a patient’s life is in immediate danger. However, this policy is forcing clinicians to determine the patient’s death threshold to legalize abortion. This creates ethical dilemmas for doctors and their employers.

A Tennessee obstetrician sent an unborn baby to North Carolina in an ambulance to end her pregnancy. She was aware that she could be sentenced to 15 years imprisonment for providing an abortion. reported. Wisconsin: A woman who suffered from a miscarriage was refused the removal of fetal tissue due to her miscarriage by doctors fearing criminal prosecution was left bleeding for 10 days in an emergency room. According to The Washington Post.

Providers are forced to limit their medical options and practice under these conditions with specific targets in mind. Patients affected by these bans are launching legal action which has huge implications for physician autonomy. Both of these groups are attempting to convince courts that the medicine’s evidence-based approach, decades of research and patients’ desires should supersede politicians’ opposition to medical services they aren’t receiving.

A dispute over rights

For more than a century, Constitutional issues surrounding patient-provider decision making have been circulating. However, the dispute is growing, American Medical Association president Dr. Jack Resneck stated during a speech on government interference and disinformation in front of the AMA House of Delegates Nov. 12.

“More and more, we are seeing attempts to undermine the work of organized medicine by those who seek to divide,” he said.

Christy Tosh Crider (chair of healthcare litigation at Baker Donelson) said that courts have tried to balance the rights of providers and patients with the government’s right for the greater good in the past.

The Supreme Court ruled, in 1905, that government-mandated smallpox vaccines were a valid use of state power for public health. In 1997, the Supreme Court ruled that Washington’s ban on physician assisted suicide was legal, partly because the state had the right to preserve human lives. The federal judiciary has consistently affirmed the right to medical autonomy in accordance with “Right to Try” laws that govern experimental medical treatments.

The courts are currently deciding whether trans teenagers have the right to receive gender-affirming treatment as per the Equal Protection Clause of the 14th Amendment. The state attorneys general argue that laws can regulate such practices using their police powers to protect minors. Patients challenging bans argue that they have the right, with guidance from physicians, to make decisions about their health.

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Trade associations and patient advocacy organizations are supporting patients with briefs that cite decades of evidence and research. U.S. Justice Department asserts that the state laws banning abortions or severely restricting them conflict with federal statutes requiring doctors to provide medically necessary treatment for pregnant women.

Test cases abound of when a patient’s life is at risk enough to perform an abortion under vague laws and challenging abortion-related prosecutions as further intrusions of the government into medical decisions, Silberman said.

“Sitting down with individual patients and figuring out what their conditions are and figuring out what their treatments should be in alignment with science and with the values of the patient is incredibly complicated. It makes it even more difficult to have politicians that are far away from the exam room or law enforcement officers put themselves on physician’s shoulders and try to second guess all that decision-making,” Resneck said in an interview.

Trade organizations representing providers, such as the AMA, the American Academy of Pediatrics and the Children’s Hospital Association, are fighting new laws governing medical practice in court and seeking federal support. They are fighting against Republican elected officials and conservative political organisations, including Americans United for Life and the National Right to Life Committee and Tea Party Patriots, as well as Republican political parties like the National Republican Redistricting Trust, Tea Party Patriots, and the National Right to Life Committee.

An uncertain legal landscape

The bans imposed by policymakers on certain medical practices clash with doctors’ legal and professional obligations to provide quality care for their patients. The dilemma is causing ethical concerns for providers regarding whether to care for someone and risk prosecution or follow law and risk a malpractice suit, according to Dr. Matthew Wynia of University of Colorado Anschutz Hospital Medical Campus.

Patients with ectopic pregnancy are often forced to travel long distances for lifesaving abortions. Trans teens who are transitioning have to stop their treatment mid-treatment. This can have negative effects on their mental well-being.

Silberman said that these decisions by clinical teams will be reflected in court and could change the debate about the boundaries between medicine and government. Federal authorities must not intervene. He said that there is a lot of uncertainty about how the Supreme Court will rule on these matters, due to its tendency to ignore precedent.

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“There is going to be an unfortunate incident where someone is going to make law,” Silberman said. “What terrifies me is that I don’t know which way it’s going to go.”

The AMA’s code of ethics states: “When physicians believe a law violates ethical values or is unjust, they should work to change the law. In rare cases where unjust laws are in effect, legal obligations should be superseded by ethical responsibilities.

However, clinicians who fail to fulfill this obligation could face severe consequences. These include felony charges, loss of medical licenses, fines, or a combination of all of these penalties.

“Physicians are going to be forced into determining how far they will advocate for their patients and at what point that advocacy has to fall aside due to the potential consequences of acting in their patient’s best interest,” Silberman said. “As a general rule, those two things should not be at odds.”

Fears of running afoul the law grew after RaDonda Vaught, a former Vanderbilt nurse, was convicted this year of criminally negligent murder for a 2017 fatal medication error. Crider said.

“That made this threat of criminal prosecution for mistakes very real. You take that information and you move forward to see what you have seen. [the abortion ruling] with the criminalization of treatment of reproductive health, I think that our providers are now at a real climax of anxiety and just uncertain about how to proceed,” she said.

President Joe Biden’s administration proposed restoring sexual orientation and gender identity to the list of protections under the Affordable Care Act’s anti-discrimination rules and has flexed the power of the Health and Human Services Department to increase access to abortion pills and providers.

The executive branch’s stance will be determined by the person in charge. In the beginning, President Barack Obama’s administration included discrimination protections for sexual orientation and gender identity. President Donald Trump removed them several years later..

“Our government is going to have to make some decisions, particularly at the federal level,“ Crider said. It will have to be approved by Congress. It must be the rule law in order to have teeth.