Physicians in antiabortion states should pay attention to their Medical licensing boards
21 February 2024
In the past, medical licensing boards were considered relatively boring administrative agencies that handled routine matters, such as disciplining physicians for obvious shortcomings. Today, in antiabortion states, these boards may act as agents for Republican public officials who want to limit the reproductive rights of women and girls and punish them and their physicians if they dare to try to exercise these rights.
Licensing complaints can be filed against any physician who provides abortions or contraceptives, even by nonpatients. Physicians who live in antiabortion states not only have to worry about breaking the law even if they provide reasonable care to women and girls but they must also be concerned about threats to their licenses. This is why many OB-GYNs are concerned about providing care in antiabortion states and some are leaving these states (see also here).
Last year, the Indiana Medical Licensing Board irrationally expanded the definition of “protected health information” under HIPAA for Indiana physician Dr. Caitlin Bernard who provided abortion care to a 10 year old girl raped by her mother’s boyfriend and who discussed this treatment in general terms with a reporter. She was investigated by Indiana Attorney General Todd Rokita, who himself was reprimanded by the Indiana Supreme Court for inappropriate conduct in this case:
The board’s action earned—and merited—national and international scorn among medical and legal ethics experts.
The criticism focused on two areas.
The first was that the information Bernard had disclosed—the age of the patient, the medical procedure and the state where the patient resides—routinely can be found in medical journals and was well within accepted guidelines. Rokita himself had disclosed as much or more information about the little girl during his ceaseless attempts to attract attention from national right-wing media.
The second was that the licensing board is populated entirely with political appointees. These included board members who had made substantial campaign contributions to Rokita and yet chose not to recuse themselves. Source
As I noted, there was no rational basis for the decision of the Indiana Medical Licensing Board to reprimand Dr. Bernard:
This administrative board created a new “Mahler standard” that expands on the HIPAA privacy law which prevents disclosure of “protected health information” that either identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Under the Mahler standard, there is a privacy violation if it “certainly is possible” that information disclosed could identify the patient. This is nonsense legal reasoning that should be overturned.
Of course, the Indiana Medical Licensing Board has no authority or competence to expand the interpretation of the HIPAA law.
…
In effect, Rokita and the State of Indiana are censoring physician speech and attempting to silence pro-abortion rights speech.
State Medical Boards may be used to attack physicians who provide abortions:
In some states, medical boards are being used as the muscle behind new restrictions: Mississippi Gov. Tate Reeves has said that enforcement of his state’s abortion ban would be “done by the State Board of Medical Licensure.” Even though some local prosecutors have pledged not to file criminal charges against those providing abortions, the prospect of medical board discipline alone may be enough to scare doctors away from delivering much-needed care.
That possibility is enough to send a chill through the medical community. “Doctors are rule followers,” says Romanos, in Columbus, Ohio. “When we don’t know what the rules are, we back off.” These days, she’s seeing a tenth of the patients she otherwise would, due to the state restriction banning abortion after fetal cardiac activity is detectable, around the six-week mark of pregnancy. Mother Jones.
In Texas, two lawyers are asking the state medical board to clarify what constitutes a medical exception under the state’s abortion ban. In this case, the Board is being asked to make a political decision because the political branches are unable to do their job:
Following the Texas Supreme Court’s rejection of Dallas resident Kate Cox’s request to terminate a nonviable pregnancy, the Texas Medical Board has been asked to clarify what constitutes a medical exception under the state’s abortion bans, reports the Texas Tribune.
Since the state banned nearly all abortions in 2021, Cox is among dozens of women who say their complicated pregnancies should have qualified them for abortions under the state’s narrow medical exceptions.
Attorneys and lobbyists Steve and Amy Bresnen filed the petition Tuesday, asking the board for “clear guidance” on when an abortion is allowed and to identify steps doctors can take to ensure their decisions comply with the laws.
It’s time for the Medical Board to get off the sidelines. The fact that life-threatening conditions related to pregnancy are driving women out of state for abortion care is not acceptable,” Steve Bresnen said. “The Legislature, the Governor, the Supreme Court of Texas and physicians have asked for clarity and the TMB has the power to give it. There is no excuse for further delay.”
In some antiabortion states, it may be grounds for physician discipline, in addition to being illegal, for a physician to merely suggest that a patient consider getting an abortion, to recommend possible physicians in another state who could provide it or to provide any assistance related to this decision. Physicians in antiabortion states need to consider not only the current laws but also the political views of their Governor (who may appoint the Medical Licensing Board) and their legislature (which can make new laws).
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