(July 2018) Provider Conscientious Refusal, Medical Malpractice, and the Right to Civil Recourse

by Jane A. Hartsock

American Journal of Bioethics, 18:7, 66-68
DOI: 10.1080/15265161.2018.1478020

Nelson (2018) argues that where death results from conscientious refusal to provide abortion services in an obstetrical emergency, clinicians and institutions should be held criminally liable for homicide. I wholeheartedly endorse Nelson’s position and add the following additional observations: (1) Clinicians and institutions that decline to provide reproductive health care in accordance with generally accepted standards of care are civilly liable for professional and institutional negligence; (2) state statutes that attempt to obviate clinician and institutional duties to comply with the standard of care violate the Equal Protection clause of the 14th Amendment of the United States Constitution and similar federal statutes violate the 5th and 7th Amendments; and (3) the preceding analysis holds true with respect to a wide range of women’s health care services in addition to abortion, including access to medically indicated birth
control and sterilization, and care and treatment of female survivors of sexual assault, to name just a few in this short response. There appears to be exceedingly little literature exploring this issue, and even less case law, but the 2016 case of Tamesha Means v. United States Conference of Catholic Bishops provides some insight and direction into what such a case might look like.

Source: Read article: American Journal of Bioethics