Dobbs v Jackson Women’s Health Organization and doctors’ conscientious commitment to provide abortion

Francesca Minerva, University of Milan 
Alberto Giubilini, University of Oxford 
Most of the time, the type of health care we are legally entitled to coincides with what is considered good medical and medical ethics standards by relevant professional bodies. At the moment, most non-sectarian (e.g. non-religious) mainstream medical organizations in Western countries, as well as the World Medical Association support the provision of abortion care.
The reversal of the 1973 Roe v Wade ruling by the US Supreme Court in the 2022 Dobbs v. Jackson Women’s Health Organization removed the Constitutional protection of women’s right to access abortion services in the US. This decision has resulted in renewed interest in the morality of conscientious commitment by health care professionals to provide abortion care.
Julian Savulescu, National University of Singapore and University of Oxford
Professional organizations often include in their professional codes of practice the professional requirement to operate within the law. This means that a practitioner who acts against the law, but according to what would otherwise be professional standards (e.g. beneficence) is acting unprofessionally and therefore could lose their licence.
(also forthcoming in the Journal of Medical Ethics Blog )
When a law regulates a professional practice that is considered consistent with professional standards, like abortion, the potential for conflict should be acknowledged by the relevant professional organizations. To simply claim that professionals should act within the terms of the law is to refuse to acknowledge the possibility of a conflict between standards of medical ethics and the law. This is a mistake. The role of professional organizations is to regulate professional conduct, not to enforce the law.
The question arises as to what professional obligations healthcare professionals are subject to in such cases, and how professional organizations’ codes of practice should handle such cases. These are the questions we address in our recent article in the Journal of Medical Ethics.
Typically, ethical debates on conscience in health care revolve around the morality of doctors refusing to provide professional services on idiosyncratic personal conscience claims. Here the issue is different in that conscientious doctors, motivated by a commitment to professional values, might want to provide services that are arguably in their patients’ best interest, but that are illegal.
Importantly, that doctors are professionally justified in providing illegal abortions does not mean that they are ethically justified, or that they should be exempted from the legal consequences of acting against the law. The rule of law prevails and legal obligations trump professional ones. However, it means that professional organizations have a duty to support and to not sanction members who act according to professional standards, even if against the law. It is the responsibility of relevant authorities to enforce the law, but it is the responsibility of professional organizations to uphold professional standards.
Udo Schuklenk, Queen’s University
At the moment conscientious commitment claims do not enjoy legal protection. This raises the question how professional organizations should regulate the matter in their professional guidelines and codes of practice, given this lack of legal protection.
The central professional obligation for doctors is to act in the best medical interests of their patients. On the assumption that it is at least reasonable to think that foetuses do not have a moral status that outweighs the value of women’s health and autonomy, the “best medical interest” criterion implies that at very least doctors will be professionally justified in providing abortions to women in jurisdictions where it is illegal, when there is a serious threat either to their life or to their health. As things stand now, professional organizations’ codes recognise the woman as the primary patient, which is consistent with a plausible understanding of the Best Medical Interest standard of professional obligations based on reasonable, defensible ethical arguments.
If we think abortion is in the best medical interest of a woman and considerations of women’s interests trump considerations of a foetus’ moral status, then professional codes should remove the explicit professional requirement to operate within the law in their guidelines on abortion. Also, professional organizations should not punish their members and should indeed lobby to protect them against legal sanctions that pertain to the professional sphere, such as the deregistration of professionals that adhere to good standards of medical ethics.  After all, they were following professional standards, which is the only thing that falls within the area of competence of professional organisations.
However, as Dobbs v Jackson Women’s Health Organization shows, professional and legal expectations sometimes come apart.