Feminist blogger denied emergency contraception, gets pregnant (Can she sue, hivemind?)

Last month, feminist blogger Biting Beaver wrote about a nightmarish experience she'd had with a broken condom and a callous medical system that refused to give her emergency contraception over the counter or by prescription.

Instead of getting medical care during the critical 72-hour window of opportunity, BB was stalled, humiliated, scorned, quizzed, and deceived. A nurse tried to tell her that EC was "the abortion pill," and other health care providers grilled her about her sexual history and her marital status. Her pharmacy wouldn't sell it to her OTC, her doctor wouldn't call in a prescription, and the local emergency rooms wouldn't give her a 'scrip because she wasn't raped or married.

Pat yourself on the back, culture of life, Biting Beaver is pregnant and she's getting death threats.

The question on everyone's mind tonight is whether a woman could sue a doctor for denying her EC. BB never got to see a doctor because she got the hermetically sealed medical run-around: Her family doctor told her to go to the ER, but when she called the ERs the nurses discouraged her from coming in to see the doctor. No doubt the entire process was engineered so that no one would be held responsible if BB should end up with a serious medial problem (i.e., pregnacy). BB never got to see a doctor, so no doctor was ever in the position to say "I know you have no contraindications, but I won't give you the medicine."

But suppose a doctor examined a patient and ascertained that she had no contraindications and still denied her EC. Could that woman sue if she got pregnant?

Here's BB's email if anyone wants to help out through PayPal.

[Via Amanda.]

Comments

[ghostcatbce]

Damn right she should get an abortion! Wish I could donate money to this particular cause.

File under things that make you want to puke.

[palamedes]

Time for a big, fat lawsuit....

Pity it couldn't be a class action lawsuit.

[Chris O.]

*shakes head* Honestly, sometimes it is a little hard to remember that these assholes are fellow human beings. Maybe if they treated others as such it would be easier.

[dr2chase]

But fortunately, the NSA is keeping track of all the terrorist emails sent to Ms. Beaver, and and we can expect that the senders will shortly find themselves sent to Gitmo. Right? Or are some terrorists given a pass by our dignified rule-of-law conservatives?

[John Lucid]

The culture of compassionate conservatism to the rescue! It's so nice they could follow up with death threats after medical professionals of their reactionary persuasion wouldn't give her the goddamn prescription. When they request that she die are they also requesting that the fetus die too? Would that make them abortionist wannabes? Do they experience any cognitive dissonance from this? Or is this some form of Jesus-induced dissociative identity disorder?

Whatever it is, this affliction seems to infect the brains of all the torture-loving Christopaths in the world, up to and including Governor-General and Viceroy of America Bush.

[aeroman]

I've got no specific experience or knowledge re: turning down requests for EC scrips, but even aside from that, I'd think that she'd have trouble making an actionable case since she doesn't appear to have been a patient of the various hospitals and only dealt with them over the phone.

[plucky punk]

I think it would be cool to organize a pledge drive where people can pledge a certian amount for each troll comment or hate email she gets.

Kind of turning a negative into a positive. I've emailed BB with the suggestion, I don't want to be too intrusive.

[Lindsay Beyerstein]

Good idea, PluckyPunk. Let me know how you guys want to organize it.

[aeroman]

That's not to say that an actionable case can never arise from phone treatment from a non-doctor. I'm sure there is behavior that could create liability for the hospital.

Also, this is not legal advice, etc etc etc.

Finally, if you want a full treatment of the EC/morality clause issue, I suggest searching a database of legal periodicals, as I know there have been a number of academic treatments of the issue. I'm away from my access to those databases at the moment, but if no one does a search by, say, Monday evening, I'll pop on into HeinOnline and email you some cites.

[plucky punk]

Well, technically it was ginmar's idea, but I volunteered.

[t]

You don't need to consult hivemind, you need to consult a lawyer.

I'm one, she has zero chance of prevailing. Sure she can sue. Anybody can who can file the papers.

People - even doctors - have absolutely no obligation to offer care or treatment to other people except, in some cases, in absolute emergencies.

Finally, even if there was a cause of action, all she has to do is get an abortion which is a few hundred bucks. That is the amount of her "damages."

Next, before adopting her cause, you might want to ask some questions: Do you buy her story?

Finally, check out her website - it shows a cartoon of a beaver gnawing through a wooden penis. She has some serious issues about sexuality and men - so she isn't the poster child for anything except for careless sex.

[paperwight]

Shorter t: Despite my obvious and stated personal animosity toward Beaver, I will pretend to give objective legal advice that precisely lines up with my view of her as a person. No, it's just a coincidence that it worked out that way.

[t]

much shorter paperwight - I don't have any substantive knowledge re the issues here, so I will offer some contrived insults.

[Alon Levy]

Please, cut it out.

[Numad]

I think paperwight's point seemed pretty on target, there.

Articulating the transparent bias after the "expert opinion" instead of the reverse doesn't stop an alert reader from doubting the latter.

[Numad]

Sorry, Alon Levy.

[Alon Levy]

Oh, I wasn't talking to you. I was talking mostly to T and Paperwight.

[Numad]

I shouldn't post just to chime in, in any case, I guess.

[Windypundit]

I don't understand BB's story, can somebody clue me in to what I'm missing?

The condom broke Friday night. She posts on Monday morning that it's all over. Huh? The 72-hour limit is Monday night. She has a whole day yet to try to find a gynecologist or clinic that will prescribe for her. That's enough time to drive to a whole 'nother state. (Also, there's evidence EC will work even 120 hours later.)

I don't know where she lives, but she mentions Columbus in one of her posts. Checking not-2-late.com, I find 3 clinics in Columbus that prescribe EC. Also, www.getthepill.com can provide prescriptions for Ohio residents based on an internet interview.

What am I missing? Is it that taking the time off from work was not worth it given that pregnancy was uncertain? Is there some reason the clinics couldn't have helped her? Are those sites I mention full of crap? Am I revealing my ignorance of birth control technology?

I'm not saying the situation doesn't suck. I'm just surprised that in 21st century America she couldn't find something that worked.

[dan]

(standard caveat: I am a lawyer, but a tax lawyer, which means I don't have any knowledge except what I vaguely remember from torts 8 years ago and cramming for the bar 5 years ago)

I have a lot of trouble believing that BB would have a cause of action in reality, because, as you say, I don't see any duty of care. In the hypothetical, where she goes to a doctor, is examined, doesn't have any counterindications, and doesn't get a prescription...well, I'm pretty sure it would be an uphill battle. The standard is going to be what an ordinarily prudent doctor would have done. That said, it might be really interesting to write a letter to the AMA; professional accreditation organizations have a lot more power in this sort of circumstance, and can really create some trouble for practitioners. And if the AMA censured the doctor, that would really open the door for a malpractice suit.

my turn: ok, so I know her e-mail address, and know that there's a paypal account associated with it. How do I, someone with no paypal account, get a donation to her? I guess the obvious answer is that if I go to paypal and futz around for a while, I'll probably be able to figure it out, but if anyone could save me the futzing I'd appreciate it. And, come to think of it, any idea how much an abortion is likely to cost, anyway?

[Amanda Marcotte]

Windy, the debacle with the EC happened a few weeks ago. BB only now has found out she's pregnant. That's all about right---the period between getting pregnant and knowing it is usually about 2-3 weeks.

[dr2chase]

Dang. So what we need is a Google Maps mashup, like Bikely (www.bikely.com), RouteSlip (roteslip.com), HousingMaps (www.housingmaps.com), or the sea-level-rise flood map (flood.firetree.net) that shows where to go for dogma-free medical care, and the best route to get there. (Is it still dogma-free if the doctor/pharmacist urges you to de-elect Republicans?)

Just trying to be constructive. If better information was available, it would be easier to boycott the yahoos before they can screw you over.

[Lawrence Krubner]

"But fortunately, the NSA is keeping track of all the terrorist emails sent to Ms. Beaver"

Slightly off-topic but consider this sentence, from an old Presidential contender:

"I will not attempt to discover whether legislation is 'needed' before I have first determined whether it is constitutionally permissible."

Wouldn't it be ironic if President Bush ever said anyting like that? Wouldn't it be wholly out of character?

I decided this week that I wanted to know what Republicans used to be like, so I'm reading Barry Goldwater's book, "The Conscience Of A Conservative". How things have changed!

[Sniper]

BB was using birth control and went though hell trying to get emergency contraception when it failed. She was denied and now needs an abortion. This, to t, makes her a poster child for carelessness. Her partner, of course, if just being a guy. No death threats for him! Not even a little chiding or slut-shaming. This has nothing to do with him.

[Jo]

Windy, I'll try to answer some of your questions....

First, remember that the condom broke on a Friday night. There are some women's health clinics that are open on Saturdays, but the problem becomes getting an appointment for EC on a typically *very busy* day. Clinics can't and won't just hand the stuff out.

And yes, that still leaves all day Monday, but...what happens if you're close to the edge on excused absences from work because your kids have been sick a lot?

Maybe you could drive to another state (assuming you won't get into some sort of trouble at work for missing a day) *if* your car is reliable enough to get you there and back.

As for EC working up to 120 post-coitus, yes, there's evidence for that. The difficulty is this: most women's health clinics are run by nurse practitioners and physician's assistants. They don't have an MD on-site, and thus have very strict protocols from which they cannot deviate. 72 hours is the absolute outside limit for every clinic I've ever dealt with, and I worked in women's health for better than a decade.

There are two points here, though, that are more important and that I think you're missing:

First, that obtaining emergency contraception is, for many women, a process of jumping through various hoops. If it's not available in your area without a prescription, you generally have to find a clinic within a distance you can manage, be able to get in, pay a fairly substantial amount of money out of pocket...these can be real barriers for a lot of folks.

Second, Biting Beaver's experience was one of not only being denied care, but of being humiliated and judged for seeking care. This is the more important point: that a woman's decisions on her own health care are subject to refusal by medical professionals, and that they feel justified in setting up a list of qualifications she must meet to get care.

What happened to Beaver is analagous to a middle-aged man presenting with gut pain at an emergency department and being browbeaten and refused care because he didn't eat enough fiber: it's unlikely to kill him, but delayed care will make further, more unpleasant treatment necessary, and make his life harder.

The difference is that nobody would consider judging a non-sexual-health related request in that way. Women, because we're the ones getting pregnant, are geometrically more likely to have to deal with artificial barriers ("Are you married? Are you using birth control?") and real barriers (economic, transportation, geographic) to getting care that should be easy to find.