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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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I really don't think that was the point of the post, Kitt. Although he has his own opinions about the morality of the issue, the part about how "doctors have absolutely no obligation to offer care or treatment to other people except, in some cases, in absolute emergencies" was a legal issue, not a moral one. He was merely talking about BB's chances in court if she were to sue. As I am not an attorney, I don't know how accurate this is, but I think the distiction between law and morals is important.

Whoops, that last comment was meant to be directed at Rev. Mykeru, not Kitt. Sorry.

Anthony, I like most Americans, have a crisis of conscience almost everyday. Lots of things I do at my job violate my personal sense of ethics. It's something I struggle with, but nobody cares, because I'm just a working class grunt. I'm not a highly paid professional with a monopoly on dispensing life saving medication that all of a sudden becomes a "crisis of conscience."

These people are not being "forced" to do anything. No one's got a gun to their head, nobody forced them to go into the profession. They're in a place of public trust and if they can't live up to the obligations inherent in that, they need to find a new profession. I don't give a damn about the doctor or pharmacist's conscience, I care about the patient who's being denied necessary care because professionals like having a monopoly and like being highly paid but don't like to suck it up and do their damn jobs or find a new one like everyone else.

Wow. Death threats. This really reinforces the idea that the true face of the anti-abortion movement is an ugly, single man embittered that he can't get laid.
And the women embittered by the fact those are the only men they can get.
When will civilization arrive?

Capodimonte is exactly right. If you have moral, ethical, or religious doubts about your work then you need to find another line of work.

This is especially true if you work in a state-licensed profession. It is the STATE that grants you your license on the condition that you treat all citizens of the state equally. Pharmacists have a monopoly right to dispense drugs, and that is all. They do not get to judge the morals of patients. Nor do doctors. If they do, they break their end of the license contract- their licenses should be revoked.

It is, as someone pointed out, exactly like a prosecutor refusing to press charges on a rapist because his conscience told him the victim was begging for it.

Another example: a defense attorney whose conscience won't allow the defense of guilty clients. It's just too bad, it's your job. You knew it when you took it. Do the job or find another.

Or a state-licensed mechanic refusing to do a smog inspection on imported cars because his conscience requires that he only work on US-made cars.

Or a licensed restaurant owner who refuses to serve black people because her conscience tells her that segregation is necessary and just, and that race-mixing is evil.

This is why we have laws- they act as the conscience of the citizens, precisely because everyone's individual consciences tell them different things and we need common ground if anything is to be done.

By the way, I've had a few such conscience conflicts myself. Years ago, I worked for a small manufacturer in Michigan. The shop had several barrels of highly toxic chemical waste. The shop owner rented a truck and had me deliver it to a self-storage warehouse nearby, where I saw he had dozens more stored. It was unsafe and illegal.

I'm an environmentalist, bright green. So I quit the job that week. I know, I know... I should have reported him as well- but I also have a conscience problem with ratting out my friends, and the boss was my friend.

Life sure is complicated sometimes.

The difference between the toxic waste and denying Plan B or even abortion to an recently impregnanted woman is that it is only the woman and the Zygote/Blastocyst that is affected. Depending on what it is, toxic waste in drinking water can affect thousands of people (particularly pregnant women and the unborn, of course). At the very least it will make an area unsafe for habitation.
One can argue that the termination of a pregnancy will affect the father, too, but a) how does one know if the father wants to keep the child? b) if the terms of intercourse did not involve long term commitment, why should the father have any say? c) returning to the apparent analogy, if all the fish (and thus birds, plants, mammals, etc that depend on the river ecosystem) are killed by pollution, how many more people will be emotionally affected? Shouldn't they just get over it?

Wow - talk about blaming other people for your problems. Oh - I forgot - that's a way of life for you losers.

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.

Your arguments about monopoly licensing largely apply to the governing boards, not to the individual practitioners. A more apt analogy would be lawyers, who may decline to represent a client for any number of odious reasons.

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.

Now, the case of the prosecutor is different, in that he is an employee of the state and expected to be exercising his personal sense of justice-- he's intended to act as an implement of the law. A doctor is not generally in this position in the United States. I wonder if the reasonable expectation of treatment in an ER situation might rise to the level of a similar obligation; one goes to the ER precisely because there is a serious time-sensitive health concern.

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.

I'm not clear that such a consensus exists, with respect to EC and abortion. There is an enormous section of the populace who genuinely believe that the embryo is, for all moral purposes, a human being whose rights we are obligated to protect (and thus subject to the Hippocratic "First, do no harm"). While there is consensus over the legal right to abortion, I don't think our society (and, by extension, the medical profession) has reached a consensus position regarding its morality. I think that has to weigh in our consideration.

Don't get me wrong, I'm not really ready to plunk either way on this, but we're talking about asking someone to commit (in their mind, and to the minds of a large section of society) actions tantamount to murder, and a violation of deeply held (and Constitutionally protected) religious beliefs. I can't bring myself to see it in the stark black and white terms you appear to.

Anthony, would you be equally comfortable letting a doctor keep their license if their religious beliefs prevented them from giving anesthetics to women in labor? Or treating menstrual cramps because those are Eve's Biblical punishment for eating the apple?

IANAL, but I think that BB has no chance of winning a suit; doctors have a duty, if they provide care, to provide medically reasonable care, accurately-represented care, etc--but in most circumstances, they have no duty to provide care. A doctor can with perfect legality drive past an accident with obviously-injured victims; if he's working in an emergency room and they are brought in, he has a duty to take care of them; he has none if they are bleeding to death beside the road. The professional licensing board/ethics committee would be much more likely to be of help.

And there are a significant number of medical practitioners who don't provide anasthesia during labor, because they believe it increases the risks too much; I'm not certain that I would think they should lose their licenses if they had the same practice, but for some odd-ball religious reason.

Sue, find out. If one place tosses it, file in another court. keep doing so until somebody takes up the case. She can fundraise over the internet to cover the costs.

It;s disgusting these medical staffers won't do their jobs. They should be made t osuffer for it personally. They should know that they lack the authority they are asserting, and they have be made to know it to an extent that others will be too terrified to follow their lead.

Sam, you keep using the same bad argument every time we discuss reproductive rights. You bring up a medical reason not to give a particular treatment, and then you say, "If a doctor can withhold X for medical reasons, why not moral reasons?"


Maybe I'm making a bad argument (I do that sometimes), but I think you are misunderstanding me.

No one has any problem with a doctor saying, "In this case, for consensus medical reasons, A is a bad idea; I won't do A." That's not what I'm saying.

There are doctors who say, "Despite the medical consensus that B is fine, I think it's medically dangerous and won't do it." In your view, is that problematic, or an acceptable judgment call?

IF it is an acceptable judgment call, then why (for the exact-same B) isn't, "I think B is morally wrong, and won't do it" any less acceptable? (Given reasonable disclosure criteria--for example, the midwife my wife and I use, who tells everyone at the first pre-natal visit that she doesn't use anasthetics routinely; certainly, that would be a problem if she didn't tell people up front.)

Doctors and other HCPs are supposed to act in the medical best interest of the patient. If the doctor chooses not to give anesthesia in a particular situation, that's fine as long as it's a medical decision about the costs and benefits to the patient herself. It's not okay for the doctor to give (or withhold) a treatment for religious reasons.

Anthony, would you be equally comfortable letting a doctor keep their license if their religious beliefs prevented them from giving anesthetics to women in labor? Or treating menstrual cramps because those are Eve's Biblical punishment for eating the apple?

In general, yes, I would, odious as those beliefs are.

I'll note that those are somewhat different situations than this one-- they are not time critical (or, at least, provisions could reasonably be made before the fact, unlike Biting Beaver's case), second because those are crackpot fringe beliefs (if we are embracing the argument that doctors have an ethical obligation to apply consensus best practices, the establishment of consensus becomes relevant, where it would otherwise not have been), and third because one can't reasonably claim either scenario to be threatening to the patient's life or long-term health.

I would caveat that, I would strongly support regulation requiring them to disclose if they were unwilling to perform a (relevant) medical procedure under ethical grounds-- informed consent certainly applies. I certainly wouldn't hire them for any hospital I would be administrating (as their religious beliefs preclude basic job functions), but I don't think "offer this procedure or lose your license" is appropriate.

That said, if an Ob-Gyn wants to withhold anesthetic from women during childbirth on religious grounds, and the women, fully advised of this beforehand, still wish to employ him as their physician (perhaps he's got the lowest natal mortality rate in the state, or perhaps she shares similar eccentric beliefs), I see no reason why either end of the transaction should be prevented.

Absolutely nightmarish! Too bad she didn't think about it before she spread her legs, eh?

But no responsibility for feminuts!

Hey, rightwingprof:

How did you even get onto a computer? With comments that dumb, I imagine that you would find it hard to breathe, much less straing your mental faculty to turn on a computer and type something. Must have been like straining on the toilet, getting those venomous words out.

Lemme guess, you're also about 17 years old, right? Professor in, what, day camp for a bunch of 12 year olds?

I'm not strictly pro-life, (for example, I wouldn't require someone who had been raped, or who was the victim of incest, or who would suffer serious health problems to carry a pregnancy to term), but this borders on ridiculous, and I'm being charitable about it.
She knew what she was doing when she hopped into bed, she knew there was a possibility that a condom can break, and yet she still made the decision to go ahead with the act.
This is a case where someone fucked up, big time, and she needs to deal with the consequences.
I'm sorry if it's a huge inconvenience, but that's life.
Maybe she'll think things through more thoroughly next time.

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

I know you're gone, dude, but Jeebus -- it's a play on vagina dentata. A myth that *men* originated.

As for the legal questions -- as one of my professors always said, "You can always sue; the question is, can you win?" Given the caselaw cited way upthread by the Happy Feminist, it's at least plausible that she could win something, but as others have said, the big question is what kind of duty of care do the doctors/ERs/staff have?

Might be worth a shot, just to get some discovery on the "criteria" that some of the doctors' offices and ERs mentioned.

Oh, and doctors and hospitals routinely deny care based on religious objections. Remember why Joe Lieberman got the nickname "Rape Gurney Joe?" Because he objected to a proposed state law that would have defunded Catholic hospitals receiving state funds if they didn't provide EC to rape victims (who can't always choose where they're taken).

Ai. Thanks for giving me a clincher, in case in a moment of brain fade I ever felt like voting for him. What's with Joe Lieberman, anyway? And how different is he from the Pat Robertsons of the world?


She knew what she was doing when she hopped into bed, she knew there was a possibility that a condom can break, and yet she still made the decision to go ahead with the act.
This is a case where someone fucked up, big time, and she needs to deal with the consequences.

The President knew what he was doing when he gave the order, he knew there was a possibility that the military exercise would be misinterpreted by one aircraft as an order to nuke Russia, and yet he still made the decision to go ahead with the act. He must now deal with the consequences, instead of using the fail-safe system to recall the plane.

And how different is he from the Pat Robertsons of the world?

He makes the effort to pretend to be a moderate.

I think that BB is full of self-hate at the root of her feelings. However, she had sex and got pregnant. Wow. What a surprise. The only way to not get pregnant is to keep her legs closed. Otherwise, she just comes of as lost and not really understanding life and how it works beyond her world of blogs and 3 babies who got "lucky" that mom wanted them at the time.

If she had more genuine love in her life and knew what that was she might feel differently.

Maybe God will be more merciful with her than she wanted to be with her own baby. I pray so. It saddens me to see another human being more interested in sex and death than the other things that really count. The book of Romans are her only hope.

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