Choice Joyce: October 2015

Choice Joyce

Essays from a pro-choice feminist liberal skeptic infidel activist (and animal lover)

Sunday, October 18, 2015

“Conscientious Objection” in Reproductive Health Care is Immoral and Should Be Abolished

Updated July 2, 2018

The topic of “conscientious objection” (CO) in reproductive health care is a fascinating one that has given me much food for thought. My position on CO is fairly well-developed and I’ve written or co-authored a number of pieces about it. In this piece, I discuss or expand upon a few aspects that have come up in informal discussions with researchers and academics, mostly around philosophical and epistemological issues. 

First, my position on CO

“Conscientious objection” is the refusal by a health care professional (HCP) to provide a legal medical service or treatment for which they would normally be responsible, based on their objection to the treatment for personal or religious reasons.

The majority of so-called “conscientious objection” is exercised today in reproductive health care and is not really about protecting the right to conscience. It’s about a person in a privileged position of authority (there by choice) imposing their personal beliefs on a vulnerable other in a dependent position (not there by choice). That is, physicians have a monopoly on the practice of medicine, and they voluntarily entered a profession that fulfills a public trust. They know they have obligations to provide care to patients without discrimination, and that patients are completely reliant on them for essential health care and can’t go elsewhere. These factors make the exercise of CO in reproductive health care a violation of medical ethics and an abuse of HCPs' position of trust and authority. It is also discrimination because it mostly affects women and the LGBTQ community.

The entire argument for CO in reproductive health care fails once it’s understood that the “conscience” excuse is a subterfuge that justifies class privilege and the “right” to control others. “Conscientious objection” is a propaganda term, not much different than “pro-life” in the abortion debate. CO is actually “Dishonourable Disobedience." It’s really unfortunate that the medical and human rights communities have been bamboozled by the CO term to the extent that allowing CO in reproductive health care is now considered a “consensus” position. They’ve accepted an anti-choice term as the starting point, which is the reason things are in such a mess today in terms of rampant CO abuse around the world and the near-impossibility of regulating and controlling it.

For further information on my position, please check out my previously published articles on CO, summarized and linked at the bottom of this article. (Most are co-authored with my colleague Dr. Christian Fiala of Vienna, Austria.)

Is CO ever justifiable in health care?

There are some valid cases where an HCP may conscientiously refuse to provide a legal treatment that is requested by the patient, but this should be done in the context of honouring their professional obligations and medical ethics. Doctors can refuse treatment on the principle of “beneficence” or “non-maleficence” to ensure the patient is helped or at least not harmed. This only applies in limited circumstances, such as a patient who requests a risky experimental treatment, or a mentally disturbed patient who wants an unnecessary procedure such as an amputation.

We (Dr. Fiala and I) also support refusal by HCPs if they are asked to perform illegal or quasi-legal activities that injure people and violate their rights, such as torture or genital mutilation of children (including circumcision of male infants, which likely has no health benefits but has plenty of harms). Such practices are not legitimate medical treatments and are not requested or needed by the patient; therefore, ethical HCPs should conscientiously refuse to participate in them.

However, these types of refusals are not grounded in the individual personal or religious beliefs of HCPs, so they do not actually qualify as CO as we have defined it.  Virtually all 'personal' CO occurs in reproductive health care (or medical assistance in dying) and does not stem from professional ethics.

This means that  personal conscientious objection to a treatment that a patient requests has no valid place anywhere in health care. Treatment decisions by HCPs must be patient-directed, not self-directed, and must be based on evidence, medical ethics, and professional obligations. If the treatment is legal, within the HCP’s qualifications, requested by a mentally healthy patient, and primarily beneficial (which abortion is), there is simply no excuse to refuse.

Downie and Shaw give an example of a Jewish doctor refusing to operate on a patient with a swastika tattoo. Another example is an abortion provider who refuses to do an abortion on a patient who calls him a murderer and treats him with contempt. It may be easy to sympathize with these doctors' refusals, but they are still not true examples of CO, because where does it end? Individual doctors may have personal moral misgivings on a lot of different things, but in the end, doctors cannot morally judge others and abuse their position of trust and authority by citing CO. Their responsibility is to treat.

What about physician-assisted dying?  Canada's Supreme Court struck down the criminal laws prohibiting this practice in 2015. A fight has emerged, with Catholic hospitals refusing to comply with the requests of terminally-ill patients to end their lives, even to provide them with information. Instead, these hospitals have taken to transferring these patients to another hospital. Unfortunately, this inflicts grave psychological and physical harm on patients who are already in a frail and weakened condition. Public institutions like hospitals should of course have no right to CO, since this can only be an individual right. It also violates the conscience rights of HCPs working at Catholic hospitals who want to provide the objected-to service. It's especially frightening that Catholic hospitals often have a near-monopoly on palliative care, such as in Alberta. In my opinion, special legislation may be needed to force Catholic hospitals to provide assisted-dying services – as well as abortion care and other medically necessary care such as sterilization services. If they refuse, provincial governments should step in and find a legal way to take control of these hospitals and secularize them. It's a radical move, but should be justifiable on the basis that Catholic hospitals are publicly funded, yet are systematically violating patients' rights and dignity and endangering their lives. Further, it's not realistic to defund or close these hospitals, as they are often the only ones in a particular community.

Coming back to why CO is not justifiable in reproductive health care, another reason is because it tends to become too broadly used, with providers citing CO for reasons other than a supposed moral objection, such as stigma, distaste, fear, personal preference, money, etc. I say “supposed” moral objection because the evidence is overwhelming and conclusive that safe legal abortion saves women’s lives and benefits their health and that of their families. The vital public health interests in keeping abortion accessible (as well as contraception) decisively trump any supposed moral concern for fetuses. Actually, I think it can be shown quite persuasively, by citing evidence on anti-choice policies, laws, etc., that anti-choice beliefs in general are not motivated by the desire to “save babies” but by the desire to control women’s sexuality and childbearing role. So treatment refusals in reproductive health care really do come down to harmful gender discrimination (see more below), and are not true CO because they’re based on a false ethical framework. People often assume we should respect the conscience of objectors, but why? I personally have zero respect for their beliefs against abortion because they are illegitimate and harmful. Their "conscience" denies respect to women, violates their rights, and risks their health and lives – all of which is demonstrable, not subjective.

Most anti-choice HCPs would claim they’re motivated by “respect for unborn life” or whatever, but that raises the issue of how we can’t trust peoples’ stated justifications anyway, since one’s personal or religious beliefs cannot be verified or falsified on a rational basis, including how genuinely such beliefs are held. It is also inappropriate and impossible for courts or governments to "decide" whether someone's religious beliefs are valid or sincere. Therefore, one reason that allowing CO is a bad idea is because it leaves us unable to challenge peoples’ justifications – we have to accept them at face value regardless of the harms they may cause to patients.

That said, many personal or religious beliefs are indeed empirically false or unethical in light of scientific evidence or accepted human rights standards (such as the inaccurate belief that some forms of contraception are abortifacients). Any justification of CO should therefore not rely on what individual HCPs claim, but instead on a broader social recognition of the benefits of the treatment in general and the harms of refusal (or perhaps vice versa in some cases). This means that true CO can happen only in unique individual cases as described above, or in cases where the patient would be harmed more with the treatment than without it, or at least not helped (the beneficence or non-maleficence principle).

Finally, on a practical basis, it may be acceptable to tolerate false CO in some limited and temporary circumstances. For example, a hospital may find it has only one objector amongst a larger group of doctors. Rather than fire or transfer the doctor, the hospital might decide to accommodate the objector if it can ensure that no-one is harmed or inconvenienced by it (except perhaps the objector). This does not mean that CO is 'okay' – it's still inherently wrong in principle and should not normally be tolerated. However, private and contingent decisions to accommodate CO on a case-by-case basis could be made by particular institutions, which also reflects the practical reality that things cannot be changed overnight. Indeed, my recommendations for ending CO (below) adopt a long-term, incremental approach, that "grandfathers" in existing objectors. 

Is CO in reproductive health care really discrimination?

Because the vast majority of CO takes place in sexual and reproductive health care, and because this care involves biological gender and sexual aspects that differently affect women, men, and LGBTQ communities in a way that’s not true for most other forms of health care, refusals of treatment constitute discrimination on the basis of sex/gender or sexual orientation. I believe that discriminatory treatment is by definition harmful, and can never be justified by evidence or ethics.

Similarly, HCPs cannot generally refuse to treat black people, gay people, obese people, smokers, injured drunk drivers, or other groups they may disapprove of, because that would be harmful and discriminatory (even if some such groups are not specifically protected under anti-discrimination laws).

Some might claim that discriminating by refusing to treat a class of persons is different than refusing to do a particular treatment like abortion – therefore, CO in reproductive health care is not discrimination. Or at least, the discrimination is an unintended byproduct of the objection to the treatment, and so is too indirect or removed to really be discrimination. However, when that treatment is something only women and some transgender people need, then it is indeed discrimination because it has a discriminatory effect.

The legal definition of discrimination in Canada is not about intention, but effect. The Supreme Court of Canada has defined it as (emphasis added): “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.”

It should also be clear that when objectors are not allowed to refuse treatment, they do not suffer discrimination themselves – they are prevented from discriminating against others. HCPs are free to hold and practice their beliefs in private, but their agreement and obligation to fulfill a public trust means they can’t bring their beliefs into their work and impose them onto patients (as per the principle of “public accommodation”).

Should patients’ rights be “balanced” with providers’ rights?

It’s sometimes implied by CO supporters (academics and doctors) that patients and doctors are on some kind of equal footing, so each bear some responsibility in cases of refusals and we should “balance” their rights. For example, the provider should refer appropriately while the patient is “responsible” for going to another practitioner. Or, the provider and patient have an equal obligation to be “respectful” of diverse views and values. (These examples come from a private email conversation I had in July 2014 with Dr. Owen Heisler, Assistant Registrar of the College of Physicians and Surgeons of Alberta.)

But this is absurd. Patients have an unquestioned right to health care and are in a dependent position with their doctor, so they bear zero responsibility for any supposed moral conflict or its consequences. And the patient’s values are irrelevant – they are there simply to obtain a required medical service, which might even conflict with their own values. The responsibility for CO is 100% on the objector, who should bear the burden of any refusals. Currently however, all or most of the burden falls on the patient, while the objector rarely has to answer for it and often even benefits from the refusal (e.g., by avoiding stigma, or freeing time for more lucrative health care). The harm to patients of allowing CO always outweighs any harm to doctors of disallowing CO – if there even is any.

Organizations and professionals that support CO often confidently state that providers have a right to conscience and patients have a right to health care. (For example, here.)  But which is it? These two things are entirely incompatible because when a provider refuses treatment, the patient has lost their right to health care, period. Giving doctors a blanket right to refuse treatment on questionable CO grounds contradicts the whole purpose of medicine – to care for patients. It usually also violates the fundamental values and policies of the medical organizations that espouse CO, with all their noble talk about physicians’ commitment to patient care and interests, evidence-based medicine, comprehensive care, and so on. But if you allow CO, health care is no longer comprehensive, it’s no longer based on science and evidence, it’s no longer in the patient’s best interests, and doctors are no longer committed to any of the above.

Can we really prohibit CO?

The solutions proposed by the organizations and professionals who want to allow CO, but who are nevertheless well aware of its systemic harms, seem (to me) to be clear evidence of the inherent unworkability and contradiction of allowing CO in the first place. The general objective in these proposals (such as those by Global Doctors for ChoiceFIGO, ACOG, and members of ESC) is to limit the injustice of CO as much as possible by requiring objectors to refer appropriately, impart accurate information on all treatment options, treat patients respectfully, and in urgent situations, provide the treatment they object to if no-one else is around to do it. The problem is that such concessions don’t work very well in practice because they assume that objectors will be rational and agree to compromise their stance against a particular treatment at some point in the process. But why should they, when they’ve already been given the right to practice “faith-based” medicine? It’s impossible to draw a line between that and evidence-based medicine, because they have nothing to do with each other. 

It is difficult for me to understand how medical groups and professionals can clearly see the many problems with CO in reproductive health care, but instead of recognizing that it is fatally flawed, they just want to put band-aids on the serious (often intractable) problems caused by CO, and continue to insist there is a provider’s right to refuse treatment on the supposed basis of conscience. Frankly, I don’t see any reason for this other than to protect the power and privilege of doctors over patients. But doctors are public servants, basically. They are no longer the paternalistic figures whom patients should just defer to when it comes to important life decisions.

I believe that a general ban on CO in reproductive health care is not only the right thing to do, but also would be simpler and much more doable than trying to accommodate and regulate CO on an ongoing basis. Empirically-based criteria could be developed that would be ethical and fair to all parties, with no need to navigate subjective aspects such as trying to decide if an objector’s reasons are valid. It also does not involve “forcing” doctors to do abortions, which is a red herring fear about banning CO. Below is my suggested protocol for carrying it out on an incremental basis:

  1. Disqualify objectors from entering certain disciplines at the medical school level (e.g., all Obstetrics/Gynecology applicants must be willing to provide abortions; all Ob/Gyn and family medicine applicants must be willing to prescribe birth control).
  2. Offer guidance to objecting students in terms of acceptable disciplines or specialties where their objection won’t be a problem. 
  3. At medical schools, provide compulsory training in contraception provision for all students in family medicine, and compulsory training in abortion techniques for all those in Ob/Gyn (and other things like vasectomies etc.).
  4. Include the requirement to participate in abortion in job descriptions at the point of hiring. 
  5. Require existing objectors to enroll in a Continuing Education course or Values Clarification workshop on the need for reproductive health care services (especially abortion) and why women request abortions. Expose them to patients requesting the services, educate them on the negative effects of CO on patients, and provide a clear understanding of their fiduciary duty to patients. This should decrease the number of objectors because many are arguably just misinformed, uncertain, or using the excuse of CO for the wrong reasons. 
  6. For those who continue to object, assist them and incentivize them to move to other disciplines or areas where their objection won’t be a problem. 
  7. Increase the burden on those who want to stay and continue objecting, with the goal of encouraging them to eventually transfer or quit. These measures would become mostly unnecessary over time as CO becomes rarer. For example, medical organizations could: 
a.      Require all remaining objectors to register so they can be monitored.
b.     Require all objectors to file a report every time they refuse services based on their moral or religious objections.
c.      Investigate any inadequate or problematic reports.
d.     Randomly conduct regular audits on objecting doctors.
e.      Discipline those who violate the policy, and develop a more robust disciplinary policy.
f.      Hold objectors financially liable for any harms done to patients.
g.     Prohibit existing objectors from working alone, especially in small communities where they are the only physician.
h.     Allow employers to prioritize hiring of non-objecting physicians.
i.       Pay objecting physicians less (a cut in wages for employed doctors, or a percent reduction in Medicare fees)
8.   To improve public accountability and transparency: 
j.       Medical organizations could make the complaint process easier for patients, including preventing the doctor from learning or discerning the complainer’s identity.
k.     Medical organizations could engage in public advocacy about the right to complain when doctors refuse care or referrals – e.g., create a brochure for doctors’ offices, publish an op-ed, write a position paper for their website, keep a permanent prominent link to it on their home page, etc.
l.       Governments could regulate public health systems to guarantee abortion provision, provide financial aid to hospitals to recruit abortion providers, engage in public education to reduce abortion stigma, implement buffer zones and various security measures to support doctors, and other initiatives.

Over time, such measures should reduce or eliminate the presence of doctors who refuse to deliver health care for which they would normally be responsible. 

Finally, it is crucial to point out that Sweden, Finland, and Iceland already do not allow CO – either it’s generally prohibited, or in the case of Iceland there’s so few objectors that requiring Ob/Gyns to participate in abortion care has not posed any problems. The assumption that CO is legitimate and must be allowed disregards the proven reality that it is indeed possible to disallow CO without any negative impacts on providers. They simply find other jobs or disciplines to work in, and they can be assisted (and even recompensed) to do so.

One might argue that these Nordic countries are a unique and unrepresentative case because they have high degrees of secularism and gender equality, and less abortion stigma. But isn’t that exactly the point? A strong commitment to secularism and gender equality makes CO unnecessary and even unthinkable, as it should be. And that’s really what our end goal should be – not trying to accommodate the ongoing oppression and stigmatization of women under the guise of “conscience.” CO is simply an ideological retaliation against laws that empower women, and it comes mainly from fundamentalist religion. It should not be defended or tolerated. 

(The End)

My previous articles on “conscientious objection”:

‘Dishonourable Disobedience’: Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection. Christian Fiala and Joyce H. Arthur. Woman - Psychosomatic Gynaecology and Obstetrics. December 2014 (first published online March 2014).

Synopsis: A comprehensive paper that uniquely delves into the underlying premises of CO to show that it is fundamentally contradictory and unworkable, and has nothing in common with the military CO from which it is supposedly derived. Current laws and practices in various countries around CO in reproductive health care show that it is frequently abused, with harmful impacts on women's health care and rights. CO in reproductive health is not actually Conscientious Objection, but Dishonourable Disobedience (DD) to laws and ethical codes. It should be dealt with like any other failure to perform one's professional duty, through enforcement and disciplinary measures.

Why We Need to Ban ‘Conscientious Objection’ in Reproductive Health Care. Joyce Arthur and Christian Fiala. RH Reality Check. May 14, 2014.

Synopsis: A criticism of the global consensus by secular medical and health organizations and human rights bodies that “conscientious objection” is a legitimate right of physicians. All such groups that accept CO simply assume without question that health care providers have a right to CO, while they contradictorily often devote considerable discussion and resources to documenting and trying to limit the systemic harms caused by the exercise of CO. Not a single statement, article, report, or study by any group that supports CO can cite any benefits of CO in health care, other than supposedly respecting clinicians’ “right” of conscience. But all groups fail to see that the term “conscientious objection” as applied to refusals of reproductive health care is fraudulent, and not true CO.

The CO debate: ‘Conscientious Objection’ is still dishonourable disobedience, Joyce Arthur and Christian Fiala. Bpas Reproductive Review. July 14, 2014.

Synopsis: A response to our critics, including Global Doctors for Choice. We paraphrase and respond to eight criticisms, most of which we feel ignored or misunderstood our position.

Synopsis:  Policies and practice around “conscientious objection” in reproductive health care in Canada, and a summary of the “Dishonourable Disobedience” paper by Joyce Arthur and Christian Fiala to show what’s wrong with CO.

Synopsis:  A critique of anti-choice views on “conscientious objection”, including in particular the views of the Christian Medical and Dental Society of Canada, which is suing the College of Physicians and Surgeons of Ontario for enacting a policy requiring objecting doctors to refer patients to someone who can provide the services.

Submission #1 to the College of Physicians and Surgeons of Ontario (see No. 731). Joyce Arthur and Christian Fiala. July 31, 2014.

Synopsis: We ask the Ontario College to amend its policy to prohibit or at least strongly discourage the practice of conscientious objection for contraception and abortion services in particular. We also ask the College to implement monitoring and enforcement against those who disobey CO regulations, including disciplinary measures and financial and legal liability for any patient harms. We provide arguments against allowing any degree of CO in reproductive health care, on the basis that it is not genuine CO, is a violation of medical ethics and patients’ right to health care, and is discrimination on the basis of sex. We also provide arguments against the typical compromise that requires doctors to refer appropriately, because it is contradictory, unfeasible, and systematically abused.

Synopsis:  The College’s new draft policy requires objecting doctors to make an “effective referral” to someone who can provide the service. I draw attention to the negative anti-choice reaction to this and the likelihood that most anti-choice doctors will flout the policy because they think referring makes them “complicit.” I urge the College to implement various suggested monitoring and enforcement measures, and to make the patient complaint process more accessible and confidential.

Synopsis: I critique the College’s draft "Conscientious Refusal" policy with similar arguments as in the above submissions to the Ontario College. (While the latter stuck to its “effective referral” policy, the Sask. College caved to anti-choice pressure and weakened its policy so that doctors only need to “make an arrangement” for the patient to see someone who can refer them to someone who can provide the service.)

Yes We Can!  Successful Examples of Disallowing ‘Conscientious Objection’ in Reproductive Health Care. By Christian Fiala, Kristina Gemzell Danielsson, Oskari Heikinheimo, Jens A. Guðmundsson, and Joyce Arthur. Feb 2015. European Journal of Contraception & Reproductive Health Care.  DOI: 10.3109/13625187.2016.1138458.

Synopsis: Three countries – Sweden, Finland, and Iceland – do not generally permit health care professionals in the public health care system to refuse to perform a legal medical service for reasons of CO when the service is part of their professional duties. We investigate the laws and experiences of these countries to show that disallowing CO is not only workable but beneficial for all involved.

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Saturday, October 17, 2015

Study Still Dead After Resurrection Attempt Fails

Published at BMJ Open on October 26.
The version below is longer and uncut.

The August 11 response of Dr. Elard Koch and several co-authors fails to rectify the two major flaws in their study that I exposed in my April 9 rebuttal, and in fact, further confirms those flaws. Their very lengthy response also ignored many of my arguments and repeated many of their disputed points.

This reply explains why those two major errors remain fatal to their study’s conclusions. I then address the question of anti-abortion bias, which I believe played a key role in the flawed design of the study. To be fair, I also address my own biases. Finally, I deal with several ancillary issues arising from Koch et al.’s response (for those interested to read on).

Fatal Flaws Are Still Fatal

My rebuttal had explained that abortion law was not related to abortion practice in Mexico, and that this invalidates the study’s methodology and conclusion. That’s because you can’t hypothesize a possible effect on abortion mortality based on the existence or absence of various legal exemptions across Mexican states, when those exemptions don’t even work. In practice, few Mexican women can access abortions under the legal exemptions. In response, Koch et al. confirmed this flaw by saying: “…between states, legal permissiveness may be the same, but accessibility may differ by multiple unmeasured factors. We do not say nor have we stated that we are using this term as a proxy for greater or less accessibility to pregnancy termination…” But their failure to account for the difference between law and practice is the flaw. Their methodology implicitly assumed that abortion restrictions reflect abortion practice, but since they now concede that’s not the case, their conclusion that maternal mortality is unrelated to the presence or absence of certain abortion restrictions is meaningless.

I had shown that it was arbitrary and erroneous to select, in particular, the legal exemption for abortion in cases of genetic or congenital malformation as the criterion for assigning Mexican states to the categories of “more permissive” or “less permissive” abortion legislation, depending on whether the state had that exemption. The rarity of abortion for fetal abnormality makes this variable useless as a proxy, because the miniscule numbers of maternal deaths that may result would be impossible to detect statistically in order to compare states with and without the exemption. The authors’ only response is to argue that such abortions may be slightly less rare than I claim, based on the low prevalence of Down syndrome at birth in several other countries. But that has nothing to do with Mexico or the fact that abortions for any kind of serious fetal abnormality are in the range of 1% of all abortions in countries where abortion is widely legal. So their error remains, especially since abortions due to fetal abnormality are likely even rarer in Mexico than in western countries because of its restrictive laws, inaccessibility of legal abortion under the exemptions, profound stigma, and physician refusals.

The authors say that exploratory analyses are “valid and valuable tools to avoid an arbitrary categorization.” But somehow, that’s exactly what they ended up with. The authors confirm their flaw by explaining that they selected the legal exemption for fetal abnormality as the main variable because it was the only one that yielded an association with maternal mortality, as well as the only one where the 32 Mexican states had a roughly equal distribution in terms of whether they had the exemption or not. In other words, the variable was arbitrarily selected on the basis of convenience and because it happened to yield an association that I’ve already shown is meaningless. (Correlation does not equal causation.) A random association is easy to find if you conduct a fishing expedition for one amongst a host of variables, but one should not then base an entire study on it and draw conclusions from it.

Author Bias

My April rebuttal in the BMJ Open was incomplete because I removed a section entitled “Credibility of Authors in Question” at the request of the editors. However, the full version had already been published at RH Reality Check and I linked to it in my BMJ Open response. Koch et al. appear to have ignored this version, which also has more links to references.

After reading Koch et al’s reply, it became even more apparent to me that an anti-abortion bias had infected the study’s methodology and conclusion. This bias must be addressed, despite the authors’ efforts to take sanctuary under the mantle of scientific objectivity. In fairness, I will also disclose and attempt to justify my own biases.

Nine out of ten authors of the BMJ Open study had an undisclosed bias because they are signatories to the “Dublin Declaration.” This document denies the need for legal abortion even to save a woman’s life. Further, Koch himself and three of his co-authors were named as “False Witnesses” last year in an investigative series carried out last year by RH Reality Check, because they had “pushed false information designed to mislead the public, lawmakers, and the courts about abortion” in their previous research or public statements. The peer review process for their BMJ Open study failed to catch the substantive errors in the study because neither peer reviewer had expertise in the subject matter, and one (R. Lieva) appears to hold the same anti-abortion bias as the authors.

The study contains repeated citations (over 30) of the authors’ own past research on abortion and lists over a dozen references from Koch and various co-authors (including peer reviewer R. Lieva), as if their work is equally legitimate to mainstream research. The effect is to create a false picture of scientific confusion and conflicting data in the abortion field. This same pattern is repeated in their reply to me, even though several of their studies have been debunked. (Here’s a compendium of rebuttals to their work.)

Koch et al. have gone to great lengths (in this and other studies) to try and show that factors such as access to emergency obstetric care have the greatest apparent impact on maternal mortality, not abortion laws. But their focus on maternal deaths, while important, obscures all the other suffering and harms that criminal abortion laws cause to women, including high complication rates from unsafe abortion (about 159,000 women are hospitalized annually in Mexico). The implication is that we should accept this human cost as long as good health care systems can save women’s lives in the end. Presumably the authors would disagree, and hopefully their implication was unintentional, but it shows what can happen when bias infects a study.

Based on my reviews of the BMJ Open study and previous Koch-led studies on abortion in Latin America, I believe that the underlying, unstated objective of Dr. Koch and at least some of his co-authors is to promote the idea that abortion does not need to be legal. Although Koch et al. pointed out that they made no recommendation in their study on the legal status of abortion, they don’t need to. The anti-abortion movement does it for them by turning their conclusions into political soundbites claiming that legalizing abortion does not save women’s lives. In effect, their studies serve as a dog whistle to anti-choice activists.

Given the overwhelming global and historical evidence of the danger posed to women by criminal abortion laws, any study conducted by Koch et al. that concludes that restrictive abortion laws do not contribute to maternal mortality should be treated with suspicion.

But let me turn now to the question of my own biases, since Koch et al. would presumably claim that I’m the one who’s biased, as well as unscientific. This is apparent from the authors’ near ad hominem treatment of my criticisms, dismissing them as “based largely on personal opinions or speculative assumptions,” and “not scientifically based.” I’m a writer and pro-choice activist, not a scientist. I do not apologize for my impassioned defense of women’s rights and lives, or for my ability to recognize and expose the authors’ co-opting of scientific methods to disguise an anti-abortion agenda. I’ve been monitoring the anti-choice movement for 25 years and Koch’s work for 3 years.

For the record, I did not have “discomfort” with the study’s findings, because I recognized the study methodology and conclusions were deeply flawed. However, I did feel offended by the study. I object to its very premise and even that it was published in a reputable scientific journal where it does not belong. Please allow me to explain.

I have a bias in favour of the belief that women deserve equality, human rights, and dignity. I also have a bias against criminalizing life-saving healthcare that only women need. Should such biases, if expressed, lessen my credibility or weaken my arguments? If so, it must be because it’s still up for debate whether women deserve human rights and freedoms, including the fundamental right to control their fertility. Koch et al. are ultimately relying on the fact that there’s still significant controversy over women’s rights in many countries – especially abortion rights – and it might explain why they were able to publish such a study in the first place.

The clear message of their study – not stated by the authors of course, but spread by the anti-abortion movement – is that it’s not necessary to legalize abortion in order to reduce maternal mortality.

Well, let’s consider this analogy: What if some researchers had conducted a near-identical study with the same methodology, but instead of looking for a random association between restrictive abortion laws and reduced maternal mortality, they looked for a random association between black segregation and improved health outcomes for black people? Would such a study have been published? I think not. But unlike the near-universal opposition to racism in our societies, sexism is still mainstream.

In my opinion, Koch et al’s study in the BMJ Open is not much different from a study that would document good living conditions in black ghettoes in order to leave the impression that it would be justified to keep black people locked up in them. Such a study would be highly offensive, no matter how scientifically conducted. I find it equally offensive when studies do the same thing to support the continued criminalization of women’s healthcare. And I object to reputable journals publishing studies with the premise that depriving women of their rights may not be harmful and could even be beneficial for them. 

Addendum: Ancillary Issues

Unsafe Abortion as a Contributing Factor to Maternal Mortality:

The authors protest my “unsubstantiated and dissociated” suggestion that they are using other contributing factors to maternal mortality as a smokescreen to cover up the effect of unsafe or illegal abortion. Their objection is largely answered by my points above on author bias.

Further, I believe the authors are being disingenuous when they say they want to emphasize the other factors that contribute to women suffering and dying in childbirth from preventable causes. Rather, they appear to be primarily concerned with abortion. Their study’s title begins with “Abortion legislation” as the key factor. The study objective is: “To test whether there is an association between abortion legislation and maternal mortality outcomes after controlling for other factors thought to influence maternal health.” Their press release for the study opens with: “Laws protecting the unborn and therefore, less permissive in regard to abortion, bear a negative …connotation, because induced abortion in clandestinity might increase maternal deaths. However, a new study conducted in 32 Mexican states …challenges this notion…” And most of their other research focuses on abortion.

Of course, many factors contribute to maternal mortality, and many effective ways exist to address it. But as I said in my rebuttal, this range of other factors could swamp the effect of unsafe abortion on maternal mortality rates and make it harder to detect statistically, particularly if a country’s mortality rate from unsafe abortion is relatively low compared to other countries. The study methodology the authors employed was almost guaranteed to find no meaningful association anyway, which allowed them to present their foregone conclusion that abortion laws don’t affect maternal mortality.

Clandestine abortion is still a major cause of maternal mortality in many parts of the world, particularly in Africa and Asia. It is unusual for developing countries with strict bans on abortion to have relatively low maternal mortality rates. In such countries (like Chile and a handful of others in Latin America), other factors indeed play an important role including widespread use of misoprostol – however, maternal mortality would almost certainly be even lower if abortion was legal, safe, and accessible. Regardless, complications from unsafe abortion remain high throughout Latin America and the Caribbean, with over one million women hospitalized annually – 159,000 in Mexico alone during 2009. This demonstrates that restrictive abortion laws continue to pose a great danger to women in Mexico, even if fewer are dying than in the past.

By the way, Koch et al. said they “reanalyzed” the 2012 study by Schiavon et al. that found a significant proportion of maternal mortality in Mexico (7%) was due to unsafe abortion, and claimed it was flawed. But Koch et al. fail to mention that their reanalysis was debunked.

Issues with Vital Statistics for Abortion Deaths:

The authors’ arguments that Mexico does not have a problem with underreporting or misclassification of abortions and associated mortality are unpersuasive. They put a lot of faith in vital statistics from the Mexican government – their only source – but it’s unlikely that government statistics are as robust and accurate as they claim. The authors can only cite their own research as support. I found mentions in several studies (listed below) about the problems of misclassification and underreporting associated with the use of vital statistics when it comes to abortion, even in countries like Mexico that have otherwise high-quality records for maternal mortality.

In settings like Latin America where abortion is mostly illegal and highly stigmatized, women and their families would be more likely to not report or misreport an abortion, and health care personnel would be more likely to misclassify causes of death out of ignorance, fear, or compassion. For example, even with the existence of specific ICD codes for “Abortive Outcomes” (ICD-10 O00 to O08), why should we exclude the possible misclassification of unsafe abortion deaths under the codes for sepsis or hemorrhage in early pregnancy (ICD-10 O20 and O23)?

Vital statistics should not be relied upon alone to determine maternal mortality from unsafe abortion. Reputable studies employ a variety of sources and methods, including studies, hospital data, various types of surveys, and more. For no valid reason, Koch et al. neglect and dismiss these additional methodologies, while their own narrower methodology for estimating abortion incidence has been debunked.

Recent studies on maternal death from unsafe abortion do not support Koch et al’s claim that the rate for Mexico is as low as 3% of all maternal mortality. Before looking at these other figures, it’s important to understand that studies and official statistics on maternal mortality rates and causes do not always distinguish adequately between deaths from induced abortion and spontaneous abortion (miscarriage), or even other “abortive outcomes” such as ectopic or molar pregnancies and other “unspecified” complications. However, we know that maternal deaths from miscarriage, legal abortion, and molar pregnancy are all very rare, at least in settings with reasonable access to health care. While ectopic pregnancies carry a higher risk of death, they are far less common than abortion or miscarriage. Therefore, the majority of officially-recorded abortion deaths in countries with restrictive laws are plausibly due to unsafe induced abortion, including many coded under other “Abortive Outcomes.”

The following studies provide rates of maternal mortality due to abortion in Latin America and/or Mexico. The data for Mexico appear to be sourced from vital statistics only, except for #3, which also cites the WHO Mortality Database (in the study’s Appendix).
  1. The Schiavon et al. estimate for Mexico was 7% for 2008.
  2. A May 2014 global analysis by the World Health Organization (WHO) provided an estimate of 9.9% for Latin America and the Caribbean. For Mexico, the study shows a rate of almost 8% as denoted on a bar graph in the Appendix, page 37.
  3. A September 2014 study by IHME, the Institute for Health Metrics and Evaluation, shows in bar graphs an average rate of about 17.5% for Latin America and the Caribbean in 2013 (Figure 6), and a rate of about 11% for Mexico (Appendix, page 127).
Why are these data from Mexico (7%, 8%, and 11%) higher than Koch et al’s estimate of 3%?  It appears it’s because Koch et al. excluded ICD-10 codes O00, O01, O02, and O08 (respectively: ectopic pregnancy, molar pregnancy, other abnormal products of conception [including missed abortion], and complications following abortion and ectopic and molar pregnancy). Excluding these codes could omit many unsafe abortion deaths that were misreported or misclassified.

Global Rates:  The oft-cited 2008 WHO figure of 13% for global maternal mortality due to unsafe abortion should be retired due to the new WHO analysis (#2 above). That study provides a figure of 7.9% globally for 2003 to 2009, with the reduction due to the use of recent data and improved methods. I would suggest that the reduced figure may also reflect the increased use of safer medical abortion by women in some regions.

Using a somewhat different methodology, the IHME study (#3 above) yields an estimate of about 15% global maternal mortality from abortion in 2013 (see Table 2, page 995). However, that 15% figure includes late maternal deaths (43 days to 1 year after delivery), which the WHO does not include in its unsafe abortion mortality estimate. Excluding late maternal deaths, the IHME figure for global maternal mortality from abortion is actually 18%. The significant variance with the WHO figure of 7.9% is unexplained and it remains unclear which is closer to reality. (The IHME figure is plausible if we hypothesize that the proportion of deaths by unsafe abortion has increased because of far greater reductions in other causes of maternal mortality, compared to unsafe abortion.) An independent review by the Guttmacher Institute (requested by myself) found that the two estimates differed "with respect to data sources used, types of abortions included, analytic methods employed, reference periods to which the estimates refer, and whether adjustments were made for likely underreporting or misreporting of abortion deaths." (Guttmacher Institute, pers.comm, Oct 5, 2015).  [Note: Section in blue added/edited after BMJ Open submission]

Incidence of Unsafe Abortion:  This report was the source for my figures on the significant number of unsafe abortions and complications in Mexico (over a million abortions a year, and 159,000 hospitalizations). These numbers are higher than the estimates from Koch et al. because the latter are based only on vital statistics data, which is insufficient.

Medical Abortion:

The authors state: “It is self-contradictory to say that unsafe abortions have increased substantially over the last decades while observing substantial reductions in deaths from this cause.” Unsafe abortions have increased globally in recent years but not substantially (from 19.7 million in 2003 to 21.6 million in 2008). But in Latin America, unsafe abortions decreased by a third between 1990 and 2008, and maternal mortality went down 70%.

This dramatic reduction in maternal deaths coincides with the widespread availability of medical abortion (using misoprostol) in Latin America over the last two decades. In contrast, maternal mortality from unsafe abortion remains high in regions where misoprostol is not as easily attainable, such as Africa. This suggests that misoprostol plays a significant role in reducing women’s deaths.

Several studies and reports (such as this one) also attribute the reduction in maternal deaths in Latin America to the increased use of medical abortion. This method has largely replaced more dangerous traditional methods, although it can still lead to a high rate of mostly non-lethal complications when used without medical supervision.

Koch et al. are unsatisfied however, and want to see an epidemiologic study with evidence that misoprostol decreases unsafe abortion mortality “independently of other major factors such as access to emergency obstetric care.” This seems to be an unreasonable expectation given the swamping effect those factors would have on the detection of unsafe abortion mortality, especially if the study plugs in artificially low death rates from abortion.

One also wonders at the reluctance of the authors to accept anything but the most rigorous direct evidence for the role of misoprostol in improving the safety of clandestine abortion. Could this be related to Koch et al’s past (discredited) attempts to show that rates of illegal abortion in Latin America have been grossly overestimated? The allegation that the high numbers of illegal abortions are exaggerated or even made-up is common propaganda in the anti-abortion movement. Such a belief would conflict with evidence for a dramatic reduction in maternal mortality due to a switch to a safer clandestine method. Incidentally, it could also motivate anti-abortion researchers to design studies “proving” that restrictive abortion laws don’t increase maternal deaths.

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