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Do We Need A Pro-Choice Litmus Test for Obstetricians?

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Defenders of abortion rights in the United States have faced a demographic paradox over the past decade: although a majority of Americans continue to favor a woman's right to choose, and strong support for this right among young people suggest that public attitudes toward abortion will continue to liberalize, the number of physicians actually performing abortions has steadily ticked downward. The reasons that newly-minted doctors refuse to replace their retiring colleagues in this enterprise include fear of violent reprisal (as evidenced in the high-profile murders of providers David Gunn and Barnett Slepian) and of chronic harassment from groups who believe abortion should be criminalized. While tighter law enforcement, increased training opportunities, and higher reimbursement rates might ameliorate this crisis to some degree, they do not address one of the rarely-mentioned causes of this dire shortage: the underlying problem may be that the pool of potential abortion providers is too small. During my medical training and career as a bioethicist, I have encountered many obstetricians who could never be convinced to terminate pregnancies because they were personally opposed to doing so--often for private religious or philosophical reasons. In short, while part of the shortage may be a result of how our nation treats its providers, another cause of the shortage is how our healthcare system selects who we will train to become future gynecologists and obstetricians. One solution to rectify this "selection effect" is a litmus test for new OBGYNs, requiring that only pro-choice obstetricians be trained until the ongoing shortage of abortion providers is resolved.

Residency positions in obstetrics are a highly-limited resource. The federal government determines the quantity of such training appointments it will finance, effectively creating an artificial shortage of jobs for junior OBGYNs. So while the number of plumbers or bioethics professors is determined largely by the laws of supply and demand, the market place has little to do with the number of obstetricians learning their craft. OBGYN residencies, for all meaningful purposes a prerequisite to practice obstetrics in the United States, are doled out in the context of artificial scarcity--like liquor licenses. As a result, becoming an obstetrician is a privilege, a great public trust held on behalf of the American people. In contrast, the United States Supreme Court has repeatedly made clear that abortion is a fundamental right. One might logically conclude that when the two come into conflict--the right to an abortion and the privilege to practice obstetrics--that our society would uphold the former. So far, alas, this has not been the case.

Almost immediately after the Supreme Court's decision in Roe v. Wade, Idaho Senator Frank Church sponsored a rider to the Health Programs Expansion Act of 1973--now known as the Church Amendment--that guaranteed health care professionals who were opposed to abortion the right to opt out of the procedure. (The Church Amendment technically applied only to institutions receiving federal funds, but today that means nearly all hospitals). A complex web of additional "conscience" laws, at both the federal and state level, have followed. In principle, such freedom of conscience seems highly desirable in a liberal society. As I have written elsewhere, when patients have easy access to alternate providers, there is no reason to force objecting health care practitioners from their jobs. For example, if Wal-Mart has two pharmacists on duty, one who holds religious objections to emergency contraception and the other who does not, it does not seem unreasonable to ask the non-objector to fill such a prescription. Of course, the situation is entirely different when there is only one pharmacist on duty. In the case of abortion, the current shortage of providers justifies a limited waiver of conscience exemptions as applied to the training of new OBGYNs. If we do not act, women may find themselves in a position similar to that of the criminal defendant who in theory has the legal right to counsel, but cannot find any lawyer willing to take her case.

Obviously, it is not realistic to force currently-practicing OBGYNs either to perform abortions or to hang up their forceps. Unless we wish to create a nationwide shortage of all obstetricians, we will have to grandfather in abortion opponents like Tom Coburn and Ron Paul. But that is very different from requiring future OBGYNs to take part in elective terminations during their training--at least as long as the shortage of providers continues. By analogy, we might permit a lone Scientologist to enter a psychiatriac residency program, despite his religious opposition to the pharmacological treatment of mental illness, but we would not allow thousands of Scientologists do so, if the result were a national shortage of prescribers. Otherwise--and I am reluctant to put ideas into the minds of abortion opponents--the most effective way to curtail reproductive freedom in the United States would be to have anti-choice activists enter medical school en masse and later crowd pro-choice physicians out of obstetrics training programs.

I feel strongly that individuals who believe that life begins at conception and individuals who believe that life begins at birth--as well as individuals who believe that life begins before conception or after birth--should have an opportunity to express their ideas in the marketplace. Our society will only achieve meaningful enlightenment through civil discourse. Those individuals who believe I am wrong about these issues should have every right to convince me that my views are mistaken or my values are misguided. However, philosophical disagreement does not give one the right to generate a public health crisis. The courts are a good place to battle over constitutional rights; the wombs of often desperate women are not. So while one has every right to oppose abortion, one should not necessarily have a right to do so while occupying the scarce and precious position of an obstetrics resident that instead could be allocated to a potential provider. We hear much talk in progressive circles about a pro-choice litmus test for future Supreme Court justices. Yet without a pro-choice litmus test for future obstetricians, who serves on the federal bench may no longer matter.