Medical Boards Must Respond to the Texas Abortion Law

One cannot be a legal vigilante opposing evidence-based care and also have the moral character to be an OB/GYN

By refusing to stay the new Texas law preventing abortion after six weeks, the Supreme Court has effectively overturned Roe v. Wade. The law prohibits most abortions after fetal cardiac activity has been detected, which is around six weeks’ gestation, but it’s effectively a ban because the maternal health clause is challenging to navigate. You can read more about the law here and here. Instead of the District Attorney, the law will be enforced by forced-birth vigilantes, meaning private citizens who are concerned that an abortion after six weeks may have happened. These plaintiffs, who do not need to have any connection to the patient or the provider, can sue anyone they think was involved with the abortion and if they prevail, they get up to $10,000 as well as their legal fees.

What’s worse is there is no way for the defendant to recoup their costs if they are successful in their defense. For example, an abortion is performed at 18 weeks because of ruptured membranes and a fever. This is the recommended treatment as infection in the uterus, chorioamnionitis, must be treated by emptying the uterus. If the provider, and nurses, and other hospital workers who helped are all sued and the judge agrees this was a medical emergent procedure, all those people are out the money they used to defend themselves from the lawsuit.

This is all designed to cause chaos. A partner who drives someone to a clinic for a procedure can be sued. The receptionist who makes the appointment. The doctor. And so on in a tragic game of legal gotcha. In addition to reducing the number of providers willing to offer abortions, this strategy effectively narrows the whisper network, because ask the wrong person how to get help with an abortion and they could turn around and sue for spite. Undoubtedly there will be forced-birthers raising money to help with these lawsuits.

Unfortunately, some of these vigilantes will be doctors. There are plenty of awful, forced-birth OB/GYNs. Right now, you can spread lies about abortion and still somehow have the moral and ethical behavior to be an OB/GYN. There is even an entire organization of OB/GYNs dedicated to spreading lies about abortion and contraception called the “American Association of Pro Life OB/GYNs.” There is nothing pro-life about them, they are forced birth.

What needs to happen today at the American Board of Obstetrics and Gynecology (ABOG), the organization that grants OB/GYNs their board certification, is that the morals and ethics to be an OB/GYN must include not being party in any way to Texas SB8 or any law that interferes with the patient-provider relationship (as it’s only a matter of time before other states enact similar legislation). Simply put, reporting an abortion, a procedure that is considered part of the scope of OB/GYN, to the state is behavior unbecoming to a physician.

(As an aside, a medical board is not the same as the licensing board, even though they sound similar. A medical board grants the speciality certification, such as being qualified to be an OB/GYN or a general surgeon or a pediatrician. The licensing board determines if you qualify to practice medicine in that state.)

What will this accomplish? Having active board certification is a requirement for hospital privileges at most hospitals and often for being paid by insurance. This will hit doctors who report in the wallet. This need not be restricted to OB/GYN, other medical specialty boards can and should do the same. Being a forced birther is not restricted to OB/GYN.

Personally, I think a physician should lose their medical license for reporting someone, but medical licensing boards, which are different from the speciality boards, are often hesitant to act even in cases of egregious medical care, so expecting them to do the right thing here is like hoping you can piss in the wind and it won’t get in your face.

One more thing. ABOG is physically located in Texas. Something I had forgotten but was reminded of by Dr. Jennifer Conti, who is also an OB/GYN.

That’s right, the specialty board that I and other OB/GYNs have to pay every year to maintain our certification is physically located in Texas. In addition, every year thousands of new OB/GYNs must travel to Texas to complete their oral exams, so in addition to fees, they must spend money flying in and out of Texas, pay for a hotel room, and of course pay money to eat. Imagine being an abortion provider and being required to travel to a state that wants to sue and bankrupt you for practicing evidence-based medicine?

At these exams the examiners review a list of cases that we submit to show the scope of our experience. We can be asked to defend any part of our management of these cases. Might being in state where doing an abortion is illegal affect a doctor’s comfort in replying about an abortion-related case?

Asking ABOG to move their offices and exam center is a big thing and may not be the right thing. While boycotts can feel good, they can also penalize people financially who had nothing to do with the legislation. For example, the restaurants around the testing center that get an influx of customers. But we must also consider how uniquely difficult it may be for many OB/GYNs to travel to Texas given SB8. I think ABOG should at least have accommodations for those who feel uncomfortable traveling to Texas.

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I believe the best way that ABOG can step up right now is to declare that it is unethical for physicians to report under Texas Senate Bill SB 8, and that any physician who does will lose their board certification. It is my hope that all medical specialty boards will step up. Not only will this be an important show of solidarity to those who need abortion and to everyone who helps with abortion care, but I am sure there are some awful forced-birth doctors just waiting to file reports. They should know there will be consequences for their unethical behavior.

Below is the letter I sent to ABOG. Feel free to copy and use it or write your own. The email address I used was info@ABOG.org. I will leave the comments open if people want to add the emails for other medical specialties below.

This might seem like a small thing, but a show of solidarity is important and small things eventually add up. And the option of doing nothing is simply unacceptable.

A person who feels it is acceptable to report anyone for helping with an abortion does not have the moral character to be board certified as an OB/GYN.

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To The Board,

Being in good moral and ethical standing is a requirement for maintaining Board Certification in OB/GYN. The new Texas law SB 8 means that any person can sue a physician or anyone who helped a pregnant person obtain an abortion.

Abortion is health care and the American College of Obstetrics and Gynecology (ACOG) states that “Texas SB8 represents a clear attack on the practice of medicine in our country and on decades of established legal precedent. By allowing third-party lawsuits against clinicians, by virtually banning all abortions, and by curtailing the sharing of information and support related to access to vital women’s health care, Texas’s new law creates a coercive environment for patients and clinicians across the spectrum of care and from all corners of the state.”

This litigation is meant to intimidate anyone involved with obtaining an abortion as well as abortion providers, violating the patient-physician relationship. If any physician were to be involved with this reporting they will have interfered with the patient-physician relationship and by definition that is unethical. Interfering with access to evidence-based care, which includes abortion, is also unethical.

I urge you to issue guidelines stating it is unethical for an OB/GYN to participate in Texas SB8 and any evidence of participation will result in revoking of board certification. One cannot be a legal vigilante opposing evidence-based care and also have the moral character to be an OB/GYN.

I look forward to your reply and your immediate action.

Best Regards,

Dr. Jen Gunter MD, FACOG, FRCS(C), NCMP.