Healthcare is by nature a service to patients, and healthcare laws must balance social responsibility with individual service. Yet most healthcare laws avoid the issue of balance altogether and are fundamentally restrictive. Restricting one specific behavior within a spectrum of complex healthcare behaviors creates unintended consequences that vary depending on the individual and on the interpretation of the law. Abortion, for example, is at times a scientific issue, at others a religious one, but mostly seen as a poorly constructed balance of both. Different conceptual combinations produce different interpretations of abortion laws. Should these laws focus on defining inappropriate sexual behaviors, or on the sanctity of human life, or on some combination?
Most abortion laws default to restricting access. Making a clinical behavior more difficult to accomplish does not deter it, but instead makes it riskier. The overall number of abortions does not decrease, simply the locations where abortions are performed switch from one state to another. State-by-state analyses of abortion rates and varying levels of restrictions show that when one state increases restrictions on abortions, abortion rates increase in neighboring states. Women seeking abortions travel farther for medical care as necessary, which is proven to be less safe for patients. A single restriction does not alter all decisions or actions that prompt a patient to consider abortion. Rather, it makes those decisions and actions more burdensome. In legal terms, it places an undue burden.
Modern abortion laws attempt to militate against these burdens by attempting to target restrictions more clinically. These laws, called TRAP laws, or targeted restriction on abortion providers, target clinicians or patients by restricting specific clinical behaviors that take place during an abortion procedure. The belief is that addressing a specific clinical behavior will affect the overall intent to seek an abortion. But the more restrictive the law, the greater the array of unintended consequences.
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 obtaining informed consent for abortions in the state. Opponents of the law describe it as unconstitutional, accusing the law of targeting women in their most vulnerable moments and exploiting them in moments of heightened vulnerability to deter a potential abortion.
Henry David Thoreau described individuals as “independent entities with rights,” a sentiment codified in modern medical ethics, which define a patient as an autonomous individual who has control over his or her body. This implies an individual’s informed consent in essential terms, a concept to be viewed in its entirety: either you fully consent, or you do not. But mandating a provision, a specific act of narrating the ultrasound, introduces an elemental framework, which means a specific act must be part of informed consent, and that changes its definition. This alters the decision to sign consent for an abortion into a willingness to tolerate the specific act of participating in a narrated ultrasound, an element that may unduly influence the patient who otherwise would have consented.
Another contested TRAP law out of Louisiana is similarly restrictive and produces similar unintended clinical effects. The law requires abortion providers to have hospital admitting privileges when performing abortions in the state, ostensibly to promote continuity of care should a complication arise. But when applied, the law reduces the number of abortion providers in the state to single digits. Proponents of the law advocate for continuity of care, an important concern for any outpatient procedure. Opponents believe the risk of potential complications from a certain number of abortion procedures does not justify a blanket restriction on all abortions.
In healthcare, the distribution of burdens when implementing a law should account for actual risks and perceived risks, balancing clinical burdens with clinical risks. The Supreme Court upheld this perspective when it ruled Louisiana abortion restrictions were unlawful and that abortion providers do not require hospital admitting privileges. The complexity of healthcare creates a burden for patients that most laws seek to simplify or avoid. This tendency only produces additional burdens on vulnerable patients as each attempt to address the burden through law merely recontextualizes it to other aspects of clinical behavior.
This problem is inherent to healthcare. It affects everything from polarizing health issues to ownership of medical data. If we believe patients should have access to data to make their own decisions, then we need to explain the data. But that requires having someone explain the data objectively. And in explaining the data objectively, we need to ensure patients understand the data sufficiently enough to make decisions that account for burdens and risks. On it goes, often with the full extent of clinical consequences not manifesting until much later.