Erin Hawley Wants ER Doctors Like Me to Do What, Now?

Listening to oral arguments on Tuesday in the Supreme Court’s medication abortion case as an emergency room physician who has seen my share of miscarriage management, it was hard to escape a feeling of rage and disequilibrium. Were these abortion opponents really saying what I thought they were saying about how to handle emergency room patients presenting with miscarriages?

First: Pregnancy-related complaints are a leading cause of visits to emergency departments around the country. On almost every one of my emergency department shifts, I care for a patient who is having vaginal bleeding while pregnant or being evaluated for a possible ectopic pregnancy. Unfortunately, patients who are bleeding and pregnant will often learn in my emergency department that their pregnancy has ended, and we will sit and discuss their options, often in consultation with my obstetrics colleagues.

They may need supportive medication or a procedure to help them complete the miscarriage that started before they walked into my emergency department. The care we offer to patients who are miscarrying is consistent, and hopefully offered with compassion. It has no relationship to any action the patient might have taken prior to their time in my emergency department.

This is why I was infuriated when I heard the argument Erin Hawley, the attorney for the respondents in FDA v. Alliance for Hippocratic Medicine, made during Tuesday’s oral arguments. I am not generally in the practice of listening to Supreme Court oral arguments. But given my experience and expertise in women’s reproductive health care, specifically in the care of pregnant patients in emergency departments, I felt it was important to listen to every word.

As Hawley tried to dig deep into the claimed harm to her clients in their caring for patients who had taken a medication to induce their abortion, she veered into territory that blew my mind. She claimed, and, I believe, with a straight face, that her clients couldn’t deliver standard miscarriage care (in this case a D&C) because of the possibility that the patient had taken medication prior to the termination of the pregnancy. It blew my mind because it’s both impractical and impossible for a physician to make that determination in the midst of an emergency care situation. Most importantly, the care itself has no relationship to any abortion at all. The claim she was making was that her clients would be complicit in the abortion by removing fetal tissue, but that isn’t the least bit medically accurate. The case she was discussing, D&C for fetal tissue, has no proximate relationship medically to an abortion, as in such a case an abortion would already be completed and the patient would no be longer pregnant.

I will admit I have not spent a lot of time thinking about conscience-clause objections in health care. I have never seen a fellow emergency physician transfer care to another provider due to a moral or personal belief, but I have heard of nurses asking another nurse to administer a contraception injection, or choosing not to assist in a procedure. I am well aware of physicians who choose to practice medicine in religiously affiliated institutions because they are more comfortable with the scope of procedures offered to patients due to similar moral beliefs. In short, my experience is that while some providers may invoke conscience-clause objections, it is only used to remove them directly from the provision of care of the thing they are opposed to, not all the care ever for that patient.

This is where Hawley’s argument went wildly astray. By arguing that her clients could refuse care to any patient during a course of care because of the possibility that they may have taken a medication that already definitively ended the pregnancy, she opened a Pandora’s box of ways physicians, and other providers, could refuse care to patients, including at least one that is entirely inconsistent with the practice of medicine as I know it. At what point would her clients’ ability to refuse care end? Could they refuse to prescribe pain medication to the patient, or necessary antibiotics well after the pregnancy, because those medications would not have been needed had the miscarriage not occurred? Could they refuse follow-up care for the patient because that care wouldn’t have been needed had the person stayed pregnant? How would they even assess how the miscarriage had happened—whether it was natural or induced by medication—in the midst of a crisis? Would they pause to ask the patient in the middle of the emergency, which is a mind-boggling thought given that the current standard of care includes no such mid-emergency-care detective work? Would such conscious objections apply in other situations? Could ER doctors demand to know the legal status of a gunshot victim before treating them, and then refuse to treat someone who may have taken part in a crime and finds themselves in the emergency room?

The point is this: In 20 years of emergency medicine, I have never asked a patient the history leading up to their visit with the express purpose of withholding the care they need, especially in an emergency. I have never known whether or not the swastika tattoo on an unconscious patient’s arm meant that they would refuse care from me, a Jewish doctor, if they were awake, or asked a driver who had a car accident if they drank a bit too much before they got behind the wheel of the car.

Our foundational mantra in emergency medicine is that we care for any patient, any time, for any reason. A claim like one Hawley makes, that it’s actually just some patients, if we want, and only when we feel good about it, is antithetical to our practice and dangerous for us all.