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Navigating Abortion Discussions as a Physician

Ericka L. Adler, JD, LL.M

Disclosures

August 04, 2022

More than any other time in my recent memory, there are multiple emotional and political "hot topics" affecting Americans across the country. This includes issues such as abortion, vaccine/masking, and gun ownership.

Though most professionals keep their views on these topics private in the workplace, many physicians are forced to confront these subjects daily in the healthcare setting, from patient interactions to discussions among their own colleagues.

Many physician and practice clients have contacted me recently to express concern about how best to address the Supreme Court decision to overturn Roe v Wade. This particular decision by the Court could have a far-reaching impact on clinicians in a wide variety of medical specialties including, but not limited to, obstetrics and gynecology, emergency medicine, and fertility.

We cannot yet know the impact of the Court's decision on medicine and patient rights in this country nor how various states and the executive branch will further address the issues in the years to come. Given the current uncertainty, physicians are in an unenviable position of answering inquiries from patients, caregivers, colleagues, and others as it relates to the practice of medicine.

While some providers will take an active and vocal role in expressing their opinions, many do not wish to do so, and still, others struggle with balancing their personal views with their professional role. There is no one "correct" way for anyone to handle this sensitive topic expect, hopefully, with decorum, professionalism, and respect.

What I have typically suggested as an approach is the following:

Stay up to date with the current laws in your state.

Many state medical societies are doing a great job updating physicians on the state's position on this developing area as well as the impact of any executive orders and federal laws that may apply. Also, many specialty-specific medical boards and organizations are providing excellent up to date guidance as well. Stick with facts when asked questions and admit if you do not have answers.

Follow guidelines provided by legal counsel for your organization, if applicable.

Many hospitals and other facilities are keeping physicians updated on state and federal developments as well the organization's own policies on such issues (many of which already prohibited abortions and certain related activities). For physicians that work in private practices, guidance from healthcare counsel on these sensitive issues is advisable to stay up to date with developments.

Remember to comply with existing laws.

State privacy laws and HIPAA restrictions related to disclosure of patient health information still apply. Physicians should not be tweeting or disclosing patient information in violation of those laws. In addition, existing reporting requirements, waiting periods, and similar limitations still apply until otherwise modified or repealed and should be followed. Physicians can face discipline, termination, and state investigation for violating existing laws.

Rely on facts.

For physicians who are being asked by patients about care decisions, planning, and similar concerns, it is essential that physicians acknowledge the limitations that may have been placed upon their care (if applicable) and to identify concerns for the patients about their care, if appropriate and clear at this time.

Because of the changing landscape on this issue and the daily developments that are occurring, honest sharing of information is ideal rather than speculation or creating fear and uncertainty. Many healthcare organizations are using patient portals and other means to communicate with patients as information becomes available if it relates to the care provided by the particular organization.

For states where specific statutory or legal action has already been taken to limit access to certain services, physicians can and should share more precise and direct information based on available facts.

Avoid engaging with patients, colleagues, and others on personal, political, and social views in the workplace in order to minimize conflict.

Obviously, this will require physicians to use their best judgement. However, clients have reported discussions on this topic devolving into emotional arguments, outbursts, and disruption in the workplace, which is neither appropriate nor in the best interest of patient care.

Most physician contracts specifically require collegial and professional conduct, which means that a physician's behavior can put them at risk for discipline or termination. Physicians wishing to avoid confrontation by others on the sensitive topic of abortion (outside of patient care) can try to respond with "I can only share what I know," or "I will at all times comply with the law/institutional policy," or even "I am not comfortable having this discussion at this time." Some organizations have developed specific guidelines to help physicians in such day-to-day interactions.

Be safe/review security protocols.

Many physicians have expressed concern for their safety from patients and third parties on this heated topic. Practices and institutions should review their security policies on an ongoing basis. As we saw with the COVID/masking issue, there is an unpredictable element of the population that can pose real harm to clinicians in the form of threats and even physical assault.

Know what constitutes emergency medical care.

Some legal changes are putting the burden on physicians to determine when a situation is an "emergency" or otherwise meets conditions of the law. You should discuss with your employer or institution where you provide services if they have developed a uniform approach to these questions. It also is a good idea to consult knowledgeable healthcare counsel or ethical advisors on how to approach these issues.

Be cautious in your discussions.

I recommend that physicians not discuss heated political and social issues on any topic in the workplace unless necessary. You do not know someone else's view or how they will react. Unless relevant to a patient's care or the workplace itself, physicians should politely decline to engage when possible. This can be harder than it seems.

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About Ericka Adler
Ericka L. Adler, JD, LL.M, is a shareholder and health law practice group manager for Chicago-based law firm Roetzel. She has nearly 25 years representing individual providers, physician groups, and other healthcare entities, focusing on regulatory and transactional healthcare law. Adler is also skilled in compliance counseling, handling mergers, sales and acquisitions of healthcare entities, and has deep experience with Stark, Anti-Kickback Statute, and other challenges facing healthcare professionals.

She also works with providers in HIPAA, fraud and abuse, billing audits, government investigations, and contract disputes.

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