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The institution's principal publication for alumni, friends and physicians.
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  A L U M N I  
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ALUMNI
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AN OVERVIEW OF ETHICAL AND LEGAL ISSUES IN WOMEN'S HEALTH

By Ben A. Rich, J.D., Ph.D., UC Davis School of Medicine Alumni Association Endowed Chair of Bioethics

 "" PHOTO — Bioethics expert Ben Rich
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Bioethics expert Ben Rich
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Across the life span, women's health issues generate challenging ethical and legal concerns. Indeed, previous columns have dealt with some of these, including procreative liberty and ruling of the U.S. Supreme Court upholding the Partial Birth Abortion Ban Act. Unsurprisingly, matters pertaining to reproduction and birth disproportionately affect women, and generate some of the most contentious ethical debate and legal jousting.

Consistent with the emphasis on women's health in this issue of UC Davis Medicine, we will consider some of these issues as they have developed in the United States, but also noting broader concerns about threats to women's health from a global perspective.

Scripting informed consent to abortion

The manifest failure of Roe v. Wade in 1973 to resolve the "abortion wars" has been made abundantly clear most recently by state efforts to regulate the process by which women seek and secure post-coital contraceptive measures or pregnancy termination. The state of South Dakota has actually adopted (and a federal circuit court of appeals subsequently upheld) what amounts to a "script" from which physicians must read as a part of the process of a obtaining woman's informed consent to an abortion. Elements of "the script" include the following statements:

  • Abortion terminates the life of a whole, unique, living human being
  • The pregnant woman has an existing relationship with the unborn human being who is protected under the Constitution that will be terminated by the abortion
  • Risks associated with abortion include depression, suicidal ideation, danger to subsequent pregnancies, infertility and death

In its unsuccessful challenge of the South Dakota statute, Planned Parenthood argued, among other points, that the ontological status of the fetus (addressed in the first bullet point) is not a medical fact but rather a strongly contested moral proposition. It argued that there is no scientific evidence that abortion poses greater risk of depression, suicide or problems with future pregnancies than does carrying the fetus to term.

Addressing purported maternal-fetal conflicts

Even as to women who choose to carry their pregnancies to term, our thinking has evolved considerably about the rights and responsibilities of pregnant women over the last several decades. Twenty years ago, considerable debate existed over "maternal-fetal conflicts" arising out of situations in which pregnant women engaged in behaviors against the advice of physicians that posed risks to the fetus or in which they refused to consent to recommended caesarian sections.

The increasing propensity of some physicians to resort to litigation in an effort to enforce compliance with their recommendations to their pregnant patients prompted one respected legal commentator to entitle her 1986 article in the California Law Review "The Judge in the Delivery Room: The Emergence of Court-Ordered Caesarians."

The question of how far physicians could go in dealing with risky behaviors by pregnant women reached the United States Supreme Court in 2001. The case involved a plan developed in 1989 by the Medical University of South Carolina, in collaboration with state and local law enforcement and social services agencies, to deal with what they considered to be a serious problem of drug use by pregnant women. Women who fit within certain parameters were tested for cocaine when they arrived at the hospital to deliver their babies. Those testing positive were given the choice of enrolling in a substance-abuse program or being arrested. The majority of women affected by this program were poor and African American. The Supreme Court ruled that this conduct constituted an illegal warrantless search and seizure prohibited by the Fourth Amendment to the Constitution.

Reflecting the evolution of opinion, the American College of Obstetrics and Gynecology Committee on Ethics currently recommends: "Court-ordered intervention against the wishes of a pregnant woman is rarely if ever acceptable." Indeed, the Committee goes on to state: "Even in the presence of a court order authorizing intervention, the use of physical force against a resistant, competent woman is not justified."

Discrimination based on the potential to become pregnant

The mere potential of women to become pregnant has been the basis for policies that discriminate on the basis of sex. The Supreme Court ruled that a corporation's "fetal protection policy" excluding female employees from its battery manufacturing operation (unless they had been sterilized) because of the potential risk to a fetus posed by lead exposure violated Title VII of the Civil Rights Act. It ruled that the policy caused disparate impact on women and the absence of any bona fide occupational qualification associated with it.

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Fetal protection regulations also have had an adverse impact on the ability of women to participate in clinical trials because they have been so expansively applied as to exclude all women who could be or might become pregnant during the trial. In 1994, the Institute of Medicine report on women and health research endorsed the inclusion of women, including those who were fertile or even pregnant, in clinical trials. Nevertheless, under current federal regulations, women known to be pregnant may not enroll in clinical trials unless the research is deemed "therapeutic" and the risk to the fetus is minimized or if the risk to the fetus is considered minimal.

Domestic violence

It is estimated that one-in-four women will be victims of domestic violence at some point during their lives. Four million women are abused each year, and domestic violence is believed to be responsible for almost one-in-three emergency room visits by women. The risk of injury from domestic violence increases during pregnancy to the extent that roughly 25 percent of women seeking prenatal treatment are battered. Victims are often reluctant to acknowledge or otherwise reveal the nature of their injuries, so physicians must be knowledgeable and attentive to the warning signs.

The Doctoring curriculum at UC Davis is just one of the ways in which medical students are acquainted with the nature and extent of the problem of intimate-partner violence and provided with the competencies necessary to promptly recognize and properly respond to it.

A global perspective on women's health

The International Federation of Gynecology and Obstetrics published a report in 2000, which identified key ethical issues in women's health from a global perspective.

The first item on the list is female genital mutilation. Despite the absence of any medical justification, the "procedure" has been performed on an estimated 120 million women, with another 2 million women described as "at risk" each year.

The second item is the rampant spread of HIV in women whose economic and/or social status in some cultures prevents them from (safely) refusing or insisting upon protected sexual intercourse. The federation estimates that 10 million women are living with HIV/AIDS contracted through unprotected intercourse.

Finally, the federation highlights the ethically questionable nature of research conducted in underdeveloped countries on the maternal transmission of HIV to children. Women desperate for access to any form of medical attention may be recruited to clinical investigations regardless of the risks posed to them or the fetus, particularly in the placebo arm of the trial. There is the further ethical concern that, for economic reasons, interventions arising out of such research may not be available to those who, as human subjects, facilitated their development.

We have touched briefly upon only a few of the numerous ethical issues within the domain of women's health. Future issues will most certainly afford opportunities to look further at some of the others.

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  "The Doctoring curriculum at UC Davis is just one of the ways in which medical students are acquainted with the nature and extent of the problem of intimate-partner violence and provided with the competencies necessary to promptly recognize and properly respond to it." — Ben Rich  
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