COMMENTARY

Commentary: State Legislatures Are Practicing Medicine Without a License

David A. Grimes, MD

Disclosures

January 22, 2015

Motivated by politics yet unencumbered by medical knowledge, state legislatures have spawned an epidemic of laws interfering with the practice of medicine. Between 2011 and 2013, for example, state politicians passed more anti-abortion laws than had been enacted in the entire prior decade.[1] Although women's health is often the target, these ill-advised laws span many medical disciplines and violate the sanctity of the patient-doctor relationship.

Restrictions on the Rise

This week marks the 42nd anniversary of Roe v. Wade, which struck down state laws restricting access to safe, legal abortion. Abortion has been a favorite target of state legislatures. An ambiguous Supreme Court decision two decades later (Casey v. Planned Parenthood) opened the door to more anti-abortion laws provided that they did not pose an "undue burden."[2] Does having to travel 500 miles for care in Texas pose an undue burden?[3] For women of limited means, the answer is clearly yes. The complete abolition of legal abortion has been a plank in the Republican Party's platform since the 1980s with no exceptions for rape or incest.[4] Indeed, the one statistically significant predictor of passage of targeted regulation of abortion provider laws in the United States is Republican control of the governor's office and both houses of the state legislature.[5]

Thirteen states, for example, force physicians to perform an ultrasound examination before abortion for the purpose of discouraging abortion, not for improving care.[6] The North Carolina ultrasound law was challenged and enjoined as unconstitutional. An appellate court recently upheld the injunction, noting that the state cannot make doctors the mouthpiece for state propaganda.[7]

Nineteen states have outlawed intact dilation and evacuation abortion.[8] The operation is safe and effective.[9] It involves internal podalic version, total breech extraction, and cephalocentesis, procedures described in obstetrical textbooks for centuries but now illegal. Sixteen states require a physician to be present when mifepristone pills are swallowed for abortion,[10] thwarting the growing use of telemedicine in rural America.[11]

Undermining Safe Abortion

Within 2 years of Roe v. Wade, the Institute of Medicine had concluded that legalization of abortion improved the health of American women.[12] These benefits extend to the family and to our nation. Childbearing in the United States is 14 times more likely to result in a woman's death than is abortion.[13] The US maternal mortality ratio is climbing,[14] and the morbidity rate from pregnancy and childbirth hovers around 60%.[15] In contrast, the risk for death from abortion is less than that from an injection of penicillin,[16] and the morbidity is negligible.[17]

Under the false banner of patient safety, politicians are trying to legislate abortion out of existence. The ultimate outcome of such legislation will be to drive women into the back alley once again.[18] The folly of trying to regulate personal behavior was evident in the "Ignoble Experiment" of Prohibition a century ago. The only beneficiaries were criminals.[19]

When Ceausescu came to power in the 1960s, he made abortion illegal in Romania. Women resorted to the back alley once again to control their fertility. Although the birth rate changed little, Romania's maternal mortality ratio rose to the highest in all of Europe.[20]

A Public Health Threat

In response to this epidemic of political intrusion into medical practice, the American College of Physicians[21] proposed guidelines to consider before enacting legislation related to medicine. However, state legislators have no obligation to heed this sound advice; they make the rules. The heads of five medical specialty societies warned of the dangers of political meddling in the New England Journal of Medicine: "Legislators, regrettably, often propose new laws or regulations for political or other reasons unrelated to the scientific evidence and counter to the health care needs of patients."[22] These legislative attacks violate the ethical principles of beneficence, autonomy, and justice. Our obligation to resist them is clear. Misguided politicians pose a public health threat.

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