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October 07, 2006

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.]

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Comments

"She has some serious issues about sexuality and men - so she isn't the poster child for anything except for careless sex."


She's probably run into males like you. You seem to hate women.

Maybe t and paperwight need to find each other.

They have so much in common.

Just to summarize BB's case: The condom broke on Friday night. She went to sleep, assuming that she could buy Plan B at her local pharmacy the next morning. She called the pharmacy and they told her that they weren't going to stock Plan B until January 1, they urged her to call her family doctor. She called her family doctor, who wasn't seeing patients over the weekend. Her doctor refused to call in a prescription for her. She told BB to go to a local emergency room and get a prescription. So, she started calling emergency rooms on Saturday. Each place she called she got grilled by hostile staff demanding to know all kinds of personal questions like whether she was raped (no) and whether she was married (no). When she told them the truth, the nurses warned her not to bother coming in because none of the doctors on call that weekend would be willing to write a 'scrip for EC. One nurse told her that there was exactly one doctor that writes for EC on call that weekend an his shift was ending. Of course the nurse couldn't promise that she'd get to see a sympathetic ER doc, even if she waited for hours in the emergency room. Of course, if she came in and got turned down, she'd still be out the $100 co-pay and at least a couple of hours waiting. So, she kept calling clinics, hoping that she would find a better option. The clinics weren't open on the weekends, or weren't open on Sundays, or didn't have a doctor on call to write a prescription.

I understand that BB is in Ohio, so I just took a couple minutes to look up Ohio law on the tort of wrongful pregnancy. The most recent case is SCHIRMER v. MT. AUBURN OBSTETRICS & GYNECOLOGIC, 108 Ohio St.3d 494 (2006).

From what I gather from the discussion in this case (and I haven't done comprehensive research on this), Ohio courts have recognized lawsuits for wrongful pregnancy or wrongful birth in two instances: (1) when someone has a sterilization procedure and winds up getting pregnant anyway because of the doctor's negligence; and (2)when the parents of an unhealthy child born
following negligent genetic counseling or negligent failure to
diagnose a fetal defect or disease bring suit for the costs of
having to raise and care for an impaired child, arguing that they
were wrongfully deprived of the ability to avoid or terminate a
pregnancy to prevent the birth of a child with the defect or
disease.

BB's case would be a novel case, but it seems to me (off the cuff) that the precedents are favorable and it wouldn't be ridiculous to think that the courts would throw out her lawsuit if she chooses to file one. I guess it would come down to whether the courts find that health care providers have a duty to provide EC. (I would hope they would so find but I don't know whether there is any precedent anywhere in the country for such a finding.)

Certainly, the failure to provide BB with EC has caused BB identifiable damage beyond just the cost of the abortion. She could also collect for lost wages, emotional distress, and there may also be punitive damages available depending on Ohio law.

I might note for those who seem to think that BB gave up easily, that she DID get EC. It's just that she had to go through tremendous amounts of shit, shaming, humiliation, and great effort, and that because of all of the above, was unable to get the EC until late Monday. EC gets less effective the further off from the contraception failure you get, so the EC failed as well. Had she gotten the EC bright and early Saturday, this would be a very different story.

I re-read the posts that BB wrote about this fiasco and she was able to get the EC that Monday late in the afternoon after an hour-plus drive to a clinic, and take the first pill within the 72 hours of exposure.

But she still got pregnant.

The Plan B website says that it's more effective the sooner it's taken after unprotected intercourse.

At any rate, I'm glad that EC will be available without a prescription come January 2007. However, it will still be within a pharmacist's control, i.e. it will not be sold in stores without a pharmacist. An individual will have to request it "over the counter" from the pharmacist and and will possibly have to show ID for proof of age. It is still a prescription item for girls under the age of 18.

I'm sure we're going to be hearing stories about women who go to their local pharmacy and will run into barriers for purchasing it. Either it won't be stocked, or the pharmacist won't dispense it without some sort of "screening" that reflects his/her own personal morality.

I hate to be pessimistic, but basically I'm bracing for more of the same.


FYI - If anyone wants to help BB out in a material way, go into your Paypal account and click "Send Money." You'd send it to her email account: BitingBeaver [at] yahoo [dot] com.

Thanks, Jo, for the patient explanation. I've never been in that situation myself, so I guess I'm just amazed it's that difficult. I get a dozen emails a day telling me how to get "male enhancement" pills, so I thought that someone would have found a way to make EC as fast as it needs to be to head off what is, for some people, a medical emergency.

At the very least, I would have thought there'd be some sort of woman's network/collective/outreach program that saw a need a filled it. As it turns out, Planned Parenthood is apparently useless. They talk about the importance of rapid EC, but their clinic hours don't do much to help.

(And for the record, I didn't miss the points about having to jump through hoops and being humiliated and judged. I just didn't have any questions about it.)

I only read the linked article and didn't realize she got EC a few hours after that. Just not soon enough...

I first learned about this situation from ginmar's LiveJournal, and have been following it. Now I learn that BB is pregnant. I have posted in my own LJ the information about getting funds to BB, and linked to relevant posts by both BB and ginmar. So far, at least three people have reposted exactly what I posted. Word is getting around.

My husband and I are unable to have children of our own, since I dare not become pregnant (it would be life-endangering, for both me and a fetus). We would happily adopt if BB chose to carry to term. She has chosen otherwise, however, and whether or not we are basically desperate to adopt, we stand by her choice 100%. The choice is HERS. It is not ours. We believe that only she can judge her own situation best, and whatever any woman chooses to do with her own body, we stand by her choice.

Is there any reason to believe that all of this isn't fabricated?

I know that everything you read on the internet is true, and all . . .

"She's probably run into males like you. You seem to hate women."

Oh please, her website features a beaver gnawing through a wooden penis? That strikes you as acceptable?

How about a website that shows some animal gnawing on female genitals - but in a cute and cuddly way, of course.


T, a lot of us have been following BB's work for a long time. She's one of our colleagues in the feminist blogosphere. She posted an invaluable first-person account of what the EC runaround is like, and what the consequences can be.

A lot of people were moved by her story and volunteered to help her out.

One reason her readers were so moved is that she's sticking her neck out. She has been the target of vicious abuse from crazy trolls, including people who tell her she doesn't deserve to live and send her recipes for suicide cocktails. These sick fucks won't just go after BB. They go after women who tell them things they don't want to hear. And so the next woman who doesn't get EC and thinks of sharing her story might remember what happened to BB and just be quiet. So it's important to send a public message of support to BB so that everyone realizes that the psycho trolls are a marginal minority.

The whole issue of medical procedures and conscience leaves me deeply, deeply troubled. On one hand, clearly, a woman should have access to all legally available medical procedures she chooses to employ; on the other hand, I am loathe to let the state tell someone to violate their conscience and (at least as importantly) religious beliefs in such a radical fashion. Quite aside from the legal aspects of this case, I'm not sure I really understand the ethics.

The Republican Taliban Plan for Women?
Barefoot and pregnant for life.

Get used to it, or start a civil war.

Anthony, there was a time when certain doctors "of conscience" refused to give women anesthesia during childbirth because their religious dogma held that God made woman bring forth children in suffering.

(These cranks were a vocal and eccentric minority in the 1840s. Many contemporary religious leaders stepped up to denounce the anti-obstetric anesthesia objection as silly and retrograde, just as many religious leaders today endorse birth control and abortion.)

Suppose some vestiges of this idea survived today. If a doctor refused to give a patient anesthesia for childbirth, wouldn't you be outraged? Wouldn't you demand their medical license.

Medical licensing is a social contract. In the USA, we sign over our consumer power to self-regulating state medical boards. The boards maintain a monopoly on the profession, in conjunction with their counterparts in the medical schools, etc.

We, the citizens, give the medical licensing boards a monopoly over physican-mediated medical and virtually unlimited discretion as to who will enter the medical profession. In exchange, they promise us meticulous quality control (from the MCAT to the USMLE and beyond) and the highest standards of professional ethics. I don't think it's too much to ask someone who asks for the legal sanction to practice medicine to agree to uphold the consensus of their profession regarding medical treatment for all illnesses and potentially hazardous conditions including the potential for unwanted implantation and pregnancy.

Being a health care provider in a modern society is to belong to a privileged monopoly. This is a high status position, not a right. If would-be caretakers want to shirk their usual responsibility, they're lucky if the only consequence they face is civil liability.

An ER doctor who won't prescribe EC is the equivalent of a prosecutor who won't press charges against a rape victim for "personal" reasons. Both should be shunned from their publicly endorsed monopoly and drummed out of their profession.

I think we should put an end to this uncertainty once and for all and introduce legislation declaring that anyone who wants a license to practice medicine must sign on to the recommendations of the medical profession regarding appropriate medical attention following unprotected sex.

Pregnancy is a potentially life-threatening condition and any "doctor" who won't address this condition when it is unwanted doesn't deserve his or her title.

How about a website that shows some animal gnawing on female genitals - but in a cute and cuddly way, of course.

A lot of the porn that you jerk off to serves that purpose, t.

Speaking as someone who's sexuality BB has repeatedly insulted, I'm furious at the idea that *ANYONE* thinks she deserves this.

I'm sending a donation via paypal. If she runs over the amount needed, she can keep what I send and spend it on anti-porn legislation for all I care, whatever makes her feel better.

Maybe the only way Conservative can get it through their thick skulls is by scaring them: If Liberals can't get emergency contraception, they will breed more Liberals.

=my2c

"A lot of the porn that you jerk off to serves that purpose, t."

Okey dokey I think I am done here. Congratulations Dr. Squid, you've succeeeded in being so offensive that I'm leaving.

Good for you.

What an excellent way to get your point across.


Bravo, Dr. Squid! You really got your point across.

Can I put you on retainer? I promise you all the krill you can eat, plus residuals if you'll stick around and fight off the trolls with your fierce jets of ink. How 'bout it, doc?

Wooden sex organs seem to pose a real problem for t...

Wow. The amount of men out there who really seem to hate women absolutely takes my breath away. I read BB's initial post, and I have to say I have run into the same kind of thing where I live. And by that I mean a dismissal of women’s health needs in general. I recently had a problem with high blood pressure that necessitated my calling the emergency room in an effort to determine if medical care was recommended. I was told not to even bother coming in unless my blood pressure exceeded 200/100. I was also told, and I quote “go to bed – you’re up too late and shouldn’t be worrying about any of this.” Really. Like I was a five year-old child. Then the nurse just hung up the phone. Funny thing about that - my husband also has blood pressure issues - and he was recently told by the same emergency room to come in immediately with his pressure running 162/90. I guess it’s more important to treat men with high blood pressure than women.

Now - I live in a rural area. The local hospital and emergency room are it, unless you want to drive for almost an hour. My gynecologist won’t practice there. She sends all her patients into the nearest city – even for emergency medical care. She wouldn’t go into detail – but I got the impression this hospital won’t even perform a D & C following a miscarriage. I do realize these discussions have been limited to BB's specific situation - but there's a great deal that can be said about women's medical care in general. Not to put to fine a point on it - but it sucks big wazzoobies. I thought we had gotten past all this ‘women are worth less than men’ bullshit - but from the discussions here and at BB's site I would say not a damn thing has changed in the last 40 years.

S'ok. I work pro bono.

It does amuse me seeing men's-rights types whine about how put-upon they are when someone takes a symbol of male advantage and turns it on its head. As if we men don't have any advantages.

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

For that one claiming to be an attorney, this is absolute bullshit. You don't work in medicine then because you would know otherwise.


Pregnancy is a potentially life-threatening condition and any "doctor" who won't address this condition when it is unwanted doesn't deserve his or her title.

To further illuminate Lindsay's point: childbirth is by far the most life-threatening event any woman undergoes.

The people in this case, the self-appointed and exceedingly self-assured guardians of virtue, who took control of Biting Beaver's reproduction are complete arrogant, hate-under-guise-of-righteousness pigs. But then, so's our president, our Congress, the people who we are obligated to admire because they made a buck, the greasy religious bastards from both the Crystal Cathedral and from Rome.

That must be the cue someone took to write: "People - even doctors - have absolutely no obligation to offer care or treatment to other people except, in some cases, in absolute emergencies". Well, yeah, completely wrong, but you'll note that the smug, self-assurance in wrongness.

Too much teaching people that Jesus Saves. Too much teaching that morality can be fit on a bumper sticker. Too much Chicken Soup for the Soul simplicity.

Nothing new though. Remember, this is the country where Betrand Russell was denied a teaching position because he didn't meet with our exacting (a)moral standards.

As American as baseball, hotdogs, apple pie and, yeah, being a dickhead.

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