Therapeutic abortion, a problem in law and medicine (Part 2 of 2)

Once we got over our initial shock which has been so graphically described to you by my colleague we tried to assess what the results of our study show and we came to these conclusions all of which we think are amply documented by the evidence which we compile on the first place we concluded and I think you'll agree that the results you've been listening to bear us out that there is rather a substantial deviation from the legal norm in prevailing medical practice in this area today. Secondly it's perfectly clear of this deviation this disparity between legal norm and medical practice is not an unwitting disparity. I think that it's pretty amply backed up by our

response showing that 75 percent of the hospitals which we polled fault that they were currently performing therapeutic abortions which did not fall within the legal standard. A further conclusion and one which seems to us to be a very creative forms is the within the medical profession within the group of reputable medical practitioners and we're talking there exists a great disparity in view as to the propriety of performing any given therapeutic abortion. For example our heart rates which we thought was the most clearly justifiable of our cases most all of the hospitals would perform up one would not. Have the rubella case the German measles case shows that not

only does the disparity exist for any given case but it also may exist for that case as between one time and another. As is shown by the fact that medical opinion has gone from 1952 in thinking that this was a good operation performed because the probable incidence of deformity was so heart to the present time where medical opinion on the whole tends to think the operation shouldn't be performed because the chances of getting into form a child are rather low up. Further we found that there is some correlation between the legal Norman and medical practice that is to say more hospitals would perform the clearly legal abortions. In our series then we would perform the clearly illegal. But still not withstanding that correlation a

substantial body of respectable medical opinion supported the performance of therapeutic abortions in cases which cannot be regarded otherwise then it is plainly illegal. Further we found in the answers to was dark again Paul referred to as the mechanical part of our questionnaire. But there's a growing sense in a medical profession that there is on the part of hospitals some institutional responsibility over and above the responsibility of the individual practitioner to see to it that abortions performed in the hospital all meet some standard. And this institutional responsibility is manifested primarily by our finding that the so-called therapeutic abortion committed this group device for passing on the

propriety of an abortion in a hospital has markedly increased in this state in the last 10 years. A study in 1950 showed that 11 percent of the hospitals polled were using the committee device at that time. Our study shows that something in the neighborhood of 60 percent. Eight years later 60 percent of the hospitals are using some variation of the committee device in order to. Have for themselves some group not some institutionalized method of passing on the propriety of cases offered for the performance of a therapeutic abortion. We also found by comparing the rate at which therapeutic abortions. Is performed are performed in various hospitals that.

The hospitals which use the committee device on the whole are somewhat more conservative in the number of therapeutic abortions they perform than are the hospitals which do not use the committee device. Although we didn't really think that the disparity here was a terribly significant. Well I suppose we could have stopped right there. There are the fun there is our summary of them. That's the end of the study. Wisely or unwisely we didn't stop there. We felt that we had some responsibility in the light of what we had discovered to come forward with some suggestion about the state of the law. After all this was essentially for us. For me and my only capacity for

Dr Guinn pill in his legal capacity. This was essentially a legally oriented study so we had the problem for ourselves of saying what to do about all those. It seems to us that when a disparity between legal norms and social conduct such as the one which we think we've uncovered here exists. There are three possible ways to look at it. One is to say let's see what we can do to bring the social conduct and a closer conformity with the legal norm. The second is to do nothing. The third is to see what we can do bringing the legal norm and closer conformity with social conduct.

I'll say just a little in a preliminary way about each of those three approaches. First the possibility of bringing social company here early conduct of reputable members of the medical profession into closer conformity with the standards of the law then they are at the present time. This isn't impossible. In fact it's really pretty easy. If we really mean what our legislation so used to say about the performance of therapeutic abortions if we really mean that we only want to have them perform when it's necessary to preserve the life of a mother it would be a very simple matter. It seems to us to initiate a program of public prosecution which would soon result in a situation where only the hardiest and probably only the

least ethical members of the medical profession dare to perform any abortion which could not plainly be said to be a legal abortion. Juries might not convict but what would that matter. Just the airing of the charges the bringing of the indictment probably be enough to scare off most doctors. If we really. Are serious about legal stand my own feeling is that just stating the matter in those terms indicates the emptiness of that approach. I don't think it's very likely that the district attorney of this or any other county in California is going to initiate any such program in their future. Well if he's not if he's not and I don't think he is and I think you'll agree with me that he's not likely to. Why do anything.

Why Bach. Nobody's been hurt. Or Is anybody being hurt. It seems to last that somebody is being hurt in the first place. Doctors are threatened here with the possibility of criminal prosecution and Turley a matter of prosecutors discretion today and there's no telling when some prosecutor who wants to invoke these provisions of law will bring it on himself to do so. For another thing the innate repression that a set of laws of this kind involves whether they're enforced or no means that the possibility of any given woman in any given situation getting a fair acute abortion is going to be terribly happenstance

that's going to depend really on what hospital she goes to it's probably also again depend on how much money she has which some of us might think is not only way these problems ought to be determined. For another thing the possibility of criminal liability for the doctor carries with it the concomitant possibility that even if he isn't prosecuted criminally he may be liable either to the woman or to her husband or to her parents. Here again the possibilities are largely unexplored but they exist. And I can't help but think that reputable members of the medical profession must find it rather Golding knows that they're immune from criminal and civil prosecution must depend to a large extent. At the present time I'm on a whim and on happenstance. All this relates of course only to the

interest of doctors and their patients. But we would suggest to you that something else and that is the interest of all of us have or ought to have in seeing to it that our law and securely our criminal law which is after all the most pervasive and the most repressed. Body of law that we possess at this body of law. Be as rational as it's possible for us to make it. And it's hard for us to see how when a disparity of this kind exists and goes on unchecked it can be said that our law is in any sense rational. Consequently we submit with some deference but nonetheless some firmness that the third of the three possible positions that I

suggested initially is the route that. Rationally ought to be taken. That is to say we should begin seriously to consider what changes in the law might be desirable in order to bring the law more closely into conformity with the practices of reputable members of the medical profession. I've heard you with any detailed prescription for legislation. Two general approaches are possible. One is to broaden the justification for the performance of a therapeutic abortion that is to say instead of having the present standard of necessary to preserve life we might extend the justification under the statute to

cover at the very least life and health so that there is no longer any question about how far the patient has to be before the operation can be performed. We would probably want to make some special provision for the case of rape which doesn't really fall into any of these medical categories but which presents a situation where I think is the responses to our questionnaire suggested. Most people would find it rather unconscionable that the woman be forced to carry the child to term if she doesn't desire them. Furthermore we think that the idea of necessity is kind of an unrealistic and stringent one and the standard if we were to expand the substantive justifications ought to be counted rather in terms that the operation is medically advisable rather than that it's

necessary. And here provide the opinion of two independent doctors. The attendant Now when we start to talk about providing the opinion of independent doctors we open up another possibility for remedial legislation altogether. And that is the possibility of focusing not on the substantive criteria for the performance of a therapeutic abortion which is essentially what the present legal standard does. And essentially what I've been talking about up to this time by way of remedial legislation. Rather we think it may make good sense to focus on what you might call the procedural Bona finds of the operation. Go back to the differentiation that I attempted to draw at the very outset that the operation was performed in a hospital and it's performed open but it's

performed by a reputable medical man that it's performed after consultation with other doctors. It seems to last that procedural criteria of this kind have a good deal more to do with what society ought legitimately to be concerned than do the substantive criteria of existing law. And so we are led to think that something of this scope might be a desirable experiment here in California based on the experience and data gathered in our study. Permit those hospitals which desire to do so to set up a therapeutic abortion committees of the kind which as we have said are growing in popularity as a device for passing on abortions. Regulate the procedure of these committees quite strictly

require that they be composed of a certain number of doctors covering certain specialties require that they meet regularly that they keep records of their deliberations that they furnish full reports and all that kind of thing. Then go on to provide that if a hospital chooses to adopt the committee device it may register a fact of its adoption with the State Department of Public Health which is already as you may know vested with the power to license and to revoke the licenses of hospitals in the state. Them once a hospital has certified that it has a committee of this kind in existence and that it is complying with the minimal procedural standards that we think should be observed going to provide that any abortion

performed in a hospital having such a committee which is performed in accordance with these minimal procedural criteria as so certified and openly proclaimed to the State Department of Public Health any person who is concerned with the performance of that abortion is exempt from criminal or civil liability. For his part in the performance of the abortion. In conclusion I would say with respect to this proposal which we feel is pretty solidly grounded in the evidence that was brought forward in our study that is the essence of our view that a therapeutic abortion which has been authorized in accordance with these minimal procedural requirements is one which has satisfied any interest which the law is legitimately

concerned to protect and that consequently the performance of the operation ought to be immune from the possibility of criminal prosecution or indeed of civil law. Well if the collective judgment of responsible members of the medical profession. Sitting in a decision making capacity and cognizant of the fact that their record is open to scrutiny favors performance of a therapeutic abortion we believe that as much social control has been exercised as is consistent with a proper review of the function of law as we pointed out our proposal would not beyond any one to use or not to use. The committee device or to perform or not to perform any therapeutic abortion I might say parent the tickly that point that we recognize that opinions vary based on very profound ethical and religious convictions

as to whether any abortions should ever be performed for any reasons at all. And as to that we would say only this. We don't suggest that people adhere to a particular moral standard in this respect ought not to continue to adhere to the standard. But we do suggest is that the law to others the requirement that they can do a standard which they themselves do not believe. So I would go. Are you proposing merely provides an optional magnetism for those who want to employ a mechanism for making a socially important and delicate decision that is far better adapted to making a decision are we believe the clumsy processes of the criminal law go there

and we thing whatever merit our proposal. Like a bank that who. You were.