Physicists are obsessed with a grand unified theory – one model to explain everything in the universe. But so far they have been unsuccessful. The universe is too complex.
Physicists nevertheless continue their pursuit of understanding it, complexity and all. Healthcare law, on the other hand, fails to even begin understanding its underlying complexity. Rather than craft laws to balance all aspects of clinical behavior and its consequences, we have laws that simply restrict one specific clinical act. And by restricting that one act, we produce unintended consequences for every other part of that clinical behavior – causing as much harm as perceived good.
What we restrict usually depends on how we view the clinical matter at hand. Abortion, for example, is seen at times as a scientific or a religious issue, but mostly as a poorly constructed balance of both.
Should abortion laws focus on curbing inappropriate sexual behaviors, protecting the sanctity of human life, or on some combination?
Most abortion laws default to restricting access. But making clinical behavior more difficult does not deter it, it only makes it riskier. State-by-state analyses of abortion rates and varying levels of restrictions show that when one state increases restrictions, abortion rates increase in neighboring states. A single restriction does not alter all the decisions or actions that lead to an abortion. Rather, it leads to a complex mix of unintended consequences.
Most recent abortion laws attempt to target restrictions more clinically, assuming this will reduce the likelihood of unforeseen complications. These laws, called TRAP laws, or targeted restriction on abortion providers, target clinicians or patients by restricting specific clinical acts that take place while performing or receiving an abortion.
In Kentucky, abortion providers must perform a narrated ultrasound for patients considering abortions. The provider describes the fetal heart rate while showing pictures of the ultrasound to the patient. This is now a legally mandated part of getting informed consent. Opponents of the law describe it as unconstitutional, accusing it of targeting women in their most vulnerable moments, exploiting them in moments of heightened vulnerability to deter an abortion.
In this way, healthcare laws are complex. Most healthcare laws attempt to regulate specific clinical actions, but the structure of the laws inevitably leads to a burden, an unintended consequence, somewhere upstream or downstream from that clinical behavior being regulated. Constitutionally sound laws should ideally balance the distribution of burdens with the intent of the law. But the distribution of burdens in healthcare is often multi-factorial and unforeseen.
These distributions should account for actual risks and perceived risks, balancing clinical benefits with clinical risks. The Supreme Court upheld this perspective when it ruled in a case out of Louisiana that abortion providers do not require hospital admitting privileges. The law assumed the complication rates of abortions require abortion providers to have hospital privileges. This makes sense clinically, but if upheld, it would have limited the number of abortion providers in the state to single digits.
The latest challenger to abortion, Dobbs v. Jackson Women’s Health, proposes that the procedure should be illegal if “the probable gestational age of the unborn human” exceeds 15 weeks. This is impossibly difficult to tell and a terrible metric to implement as a law. Who is to determine the probable gestational age when the calculated fetal age is based on the last menstrual period? Ironically, it is the most difficult to identify the fetal age early in pregnancy, when its legality is the most controversial.
It is in this area of uncertainty where we find the most controversial healthcare laws. Those that attempt to regulate areas with greater medical uncertainty give rise to unintended consequences that are often more clinically harmful than in scenarios where less uncertainty exists.
It should come as no surprise that much of the controversy on abortion laws mirrors that of opioid laws – when is a clinical behavior legally permissible? And how can you properly regulate the overall intent of the law by focusing on one act in a sequence of complex clinical behaviors?
You cannot – simply put. So we create abortion laws that scroll over the weeks of pregnancy. It is why opioid prescribing laws struggle to include clinical context when regulating prescribing practices. As a result, we have patients with chronic pain left untreated and patients with substance use dependencies in jails instead of rehabilitation facilities.
Dr. Nora Volkow, head of the National Institute of Drug Abuse, has made a career out of studying addictions. Through her experience in the opioid epidemic, she sees how addiction is a complex medical condition that is about more than opioid prescriptions or illicit drug use. Instead, she studies how addiction is experienced by patients with the medical condition.
While many health policy advocates focus their attention on fentanyl, “the most dangerous opioid”, Dr. Volkow focuses on the unique patterns of drug abuse in patients across the country. She believes funds from opioid settlements should include addiction services for patients struggling with multiple illicit substances, including methamphetamines, given the tendency of many patients who were abusing opioids to switch to methamphetamines in recent years.
Dr. Volkow is among the first to verify these patterns of substitution in drug abusers. It is similar to the pattern of substitution we see among patients seeking abortions. This is no coincidence. When similar undue burdens are placed on patients, regardless of the medical condition, we will see similar unintended consequences – and similar forms of harm to patients.
The gaps in medical logic that appear in both opioid and abortion laws underlie a fundamental problem in regulating complex healthcare behavior through restrictive laws – they do not work.
Instead of crafting laws that address the full scope of clinical behavior, the full complexity, we slap together laws that restrict one action, and assume this is all that is needed.
When the process through which we create healthcare laws is similarly flaw, it only makes sense that we see similar levels of outrage for both issues – abortions and opioids.
