“In some cases, the law mandates conduct that is ethically unacceptable. When physicians believe a law violates ethical values or is unjust they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal duties.”
Code of Medical Ethics of the American Medical Association (AMA)
What should medical professionals do when a law requires them to harm a patient? This question has become a pressing one as physicians grapple with the implications of state laws banning abortion. When these laws directly and immediately threaten the health of patients, should physicians collectively disobey them — that is, should they engage in professional civil disobedience?
The Mississippi law at issue in the recent Supreme Court case Dobbs v. Jackson Women’s Health Organization called elective abortions carried out after 15 weeks of gestation “demeaning to the medical profession.” The majority of justices agreed, claiming that the state’s law banning such abortions would preserve “the integrity of the medical profession.” Yet major U.S. medical groups have since argued that it’s the Court’s decision in Dobbs that demeans and threatens the integrity of the profession, since laws banning abortion can compel doctors to choose between harming patients and breaking the law.
The AMA called Dobbs “an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient–physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.” The American Academy of Family Physicians wrote that the decision “negatively impacts our practices and our patients by undermining the patient–physician relationship and potentially criminalizing evidence-based medical care.” The American College of Physicians stated, “A patient’s decision about whether to continue a pregnancy should be a private decision made in consultation with a physician or other health care professional, without interference from the government.” And the CEO of the American College of Obstetricians and Gynecologists called Dobbs “tragic” for patients, “the boldest act of legislative interference that we have seen in this country,” and “an affront to all that drew my colleagues and me into medicine.”
Medical organizations are rarely so united. Yet even many physicians who oppose abortion recognize that medically nuanced decisions are best left in the hands of individual patients and their physicians — not state lawmakers. Abortion bans are already pushing physicians in some states to wait until patients become critically ill before intervening in cases of ectopic pregnancy or septic miscarriage, among other problems.1
Beyond issuing strongly worded statements, what actions should medical organizations take in the face of laws that threaten patients’ well-being? Should they support establishing committees to decide when a pregnant person’s life is in sufficient danger to warrant an abortion? Should they advocate for allowing patients to travel elsewhere for care? Or should they encourage their members to provide evidence-based medical care, even if doing so means accepting — en masse — fines, suspensions of licensure, and potential imprisonment? How long could a dangerous state law survive if the medical profession, as a whole, refused to be intimidated into harming patients, even if such a refusal meant that many physicians might go to jail?
There are several arguments in favor of professional associations supporting civil disobedience by their members. First, collective civil disobedience by a professional group would avert the most common and powerful criticism leveled against civil disobedience, which is that it could lead to anarchy.
Civil disobedience is a “public, nonviolent, conscientious yet political act contrary to law,” carried out with the aim of bringing about a change in an unjust law.2 But respect for laws is necessary to maintain a civil society. Having each person choose which laws to obey and which to disobey is a recipe for chaos. The most well-known proponents of civil disobedience — Henry David Thoreau, Mahatma Gandhi, Martin Luther King, Jr. — all took seriously the threat of unrestrained disregard of laws under the guise of civil disobedience. In his 1963 Letter from Birmingham Jail, King argued that people must respect just laws, but he also wrote, “law and order exist for the purpose of establishing justice,” and he agreed with St. Augustine that “an unjust law is no law at all.” He described a “moral responsibility to disobey unjust laws” and laid out criteria to help people decide when laws, such as those upholding racial segregation, are sufficiently unjust as to warrant open disobedience. Gandhi was even more worried about chaos and launched hunger strikes to rein in his own supporters when he believed they had gone too far in their disobedience of laws.
But professional civil disobedience poses little threat of anarchy. Unlike a situation in which each person decides whether to obey or disobey a law, a professional group’s deciding together, after frank and rational debate, to support disobedience of an unjust law might eventually reinforce social cohesion, elevate trust in the profession, and help communities avoid tragic errors. Professions, after all, are expected to protect vulnerable people and core social values.3 Such a decision would still be contentious, however. Civil disobedience is nonviolent, but it elevates and highlights conflict and often leads to violence against people disobeying the law.4 Professional civil disobedience would undoubtedly require tremendous courage.
Proposing professional civil disobedience of state laws prohibiting abortion might seem naive. Historically, physicians have rarely been radical, and most have conformed with bad laws and policies, even horrific ones — such as those authorizing forced-sterilization programs in the United States and Nazi Germany, the use of psychiatric hospitals as political prisons in the Soviet Union, and police brutality under apartheid in South Africa.
We will never know what might have happened if Soviet psychiatrists had collectively refused to participate in putting political prisoners in psychiatric facilities, or if the physicians of apartheid South Africa had refused to file false reports on prisoners who were injured or murdered by the police. But when a society takes a wrong turn and medical professionals go along, mistrust in medicine grows and either social change must be driven by other groups or the society fails.
Additional arguments in favor of professional associations formally supporting members who disobey unjust abortion laws include the assertion that professional “conscience” protections should apply equally to physicians refusing to participate in abortions and those who are compelled by conscience to provide abortion care.5 Providing care that directly protects patient health is also the surest way to limit harm to patients from these laws; there may be harm to future patients if multiple physicians have their licenses revoked or are jailed for civil disobedience, but the needs of hypothetical future patients shouldn’t outweigh the needs of real patients facing danger today. Finally, professionally sanctioned, open, and large-scale acts of civil disobedience might in the end be less risky for doctors than strategies involving professional groups trying to help members work around unethical laws or individual doctors acting surreptitiously against a law or taking a stand alone.
A thoughtful debate over whether and how to embark on a path of professional civil disobedience will take time and commitment. Physicians will need to bring specific proposals to their professional associations for ways to assist members who disobey unjust laws, including providing legal, financial, and social support. But I believe now is the time for these conversations to begin. Professional civil disobedience may be what is required to repair the moral fabric of our country and the integrity of our profession, which have been so injudiciously ruptured by the Supreme Court.
Funding and Disclosures
Disclosure forms provided by the author are available at NEJM.org.
This article was published on August 24, 2022, at NEJM.org.
1. Arey W, Lerma K, Beasley A, Harper L, Moayedi G, White K. A preview of the dangerous future of abortion bans — Texas Senate Bill 8. N Engl J Med 2022;387:388-390.
2. Lyons D. Civil disobedience. In: Mandle J, Reidy DA, eds. The Cambridge Rawls lexicon. Cambridge, United Kingdom: Cambridge University Press, 2014.
3. Wynia MK, Latham SR, Kao AC, Berg JW, Emanuel LL. Medical professionalism in society. N Engl J Med 1999;341:1612-1616.
4. Chenoweth E. Civil resistance: what everyone needs to know. New York: Oxford University Press, 2021.
5. Harris LH. Recognizing conscience in abortion provision. N Engl J Med 2012;367:981-983.
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