‘Is an abortion medically necessary?’ is not a question for ethicists to answer

Abortion raises many ethical questions. Determining whether an abortion is needed to save a pregnant person’s life or health is not among them. That’s a factual question requiring medical — not ethical — judgment.

Yet in the struggle to provide medically necessary care in a post-Dobbs world, some clinicians and institutions have mistakenly turned to ethics consultants and committees to decide whether a patient’s pregnancy may be terminated.

Take the case of Julie Rhee, an obstetrician-gynecologist in St. Louis who recently spent half a day working to comply with her institution’s new requirement for an ethics committee to sign off on abortions. It was half a day before she could take her patient with an ectopic pregnancy for urgent surgery, half a day in which the patient could have died.

Involving ethics committees in these cases may be well-intended, especially given the threat of criminal prosecution, but it’s misguided and dangerous. Ethics committees should refuse to take part in deciding whether a recommended abortion is legally permissible.

In the era before Roe v. Wade recognized a right to abortion protected by the federal constitution, some hospitals relied on “abortion selection committees” to decide who should have access to “therapeutic” abortion. These committees were presented with requests on the basis of a patient’s suicidality or other psychiatric conditions, as well as other maternal health risks and fetal problems. Committees sometimes decided that patients were “undeserving” of abortion. Their decision-making was rife with opportunities for inconsistency, bias, and discrimination. Hospitals just a few miles from each other could have different standards for approving the procedure, evoking grave misgivings among both physicians and patients.

Today, ethics committees play important roles helping patients, families, clinicians, and institutions navigate and resolve ethical uncertainty or conflict in health care settings. For example, they might provide guidance on questions regarding withdrawal of life-sustaining interventions, decisions for patients who can’t speak for themselves, requests to accommodate religious or cultural differences in the provision of care, and challenges posed by cutting-edge medical technologies.

Ethics committees are not, however, intended to second guess or confirm clinical judgments about abortion or any other medical procedure — or to provide legal cover for institutions. But that’s exactly what they’re being asked to do now.

Nearly all abortion bans, such as the one just signed into law in Indiana, include exceptions that allow abortion if continued gestation would endanger the pregnant person’s life or, in some cases, their health. However, the terms of these exceptions are ambiguous, referring to concepts like “medical emergency,” “death or substantial risk of death,” or “serious risk of substantial and irreversible physical impairment of a major bodily function.” These phrases clearly require interpretation, but whether an individual is at risk of death or permanent impairment is something for a clinician to decide using their expert medical knowledge.

Once that clinical decision is made, there is no role for an ethics committee because there is no ethical ambiguity: It’s ethical to provide care deemed medically necessary and unethical to punish clinicians for providing patients with such care. (The Biden administration has also reminded clinicians that emergency care is required by federal law.)

Ethics consultants and committees should offer their guidance only where there’s an ethical challenge or disagreement. As a matter of principle, then, they should refrain from accommodating individual or institutional requests to weigh in on whether a patient can undergo an abortion that their clinician deems medically necessary.

Instead of calling on ethicists to provide cover for decisions about abortion, institutions should do three things:

• Clarify their own interpretation of applicable laws so their clinicians are not left to guess when time is of the essence.
• Encourage clinicians to get a second medical opinion as to the necessity of an abortion, when time allows.
• Assure clinicians they will provide access to free legal counsel should a prosecutor come knocking.

It’s inevitably risky to provide abortion services in states with restrictive laws and strict plans for enforcement, but institutional efforts may provide some reassurance to clinicians while protecting patients. Meanwhile, states should clarify the scope of their legal exceptions — and better yet, repeal their abortion bans altogether.

Abortion is health care. Like other health care decisions, abortion decisions should be left to patients, their loved ones, and their clinical team. Politicians, judges, and others may seek to intrude on that privacy, but ethics consultants and committees should refuse to go along.

The authors are faculty members in the Department of Medical Ethics and Health Policy at the University of Pennsylvania and senior fellows at the university’s Leonard Davis Institute of Health Economics.