Medicolegal Issues

ACOG to legislators: Partnership, not interference

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Federal and state legislators have made numerous attempts to interfere in the patient-doctor relationship in recent years, and ACOG has stepped up to protest



Who’s in charge here?

It’s a legitimate question being asked by more physicians in all areas of the country as they struggle to provide good quality care. Yes, physicians face longstanding payment and coverage issues, regulations, and the insurance bureaucracy. But more and more often, physicians are struggling to care for their patients in the face of legislative interference that reaches right into their exam rooms. Who’s in charge here, indeed?

In this article, I detail several examples of legislative interference and describe the response of the American Congress of Obstetricians and Gynecologists (ACOG). I also detail a very healthy partnership ACOG has undertaken with the US Department of Health and Human Services (HHS) and the March of Dimes to end early elective deliveries before 39 weeks of gestation.

Physician gag law passes in Florida

State lawmakers in Florida have decided that physicians should no longer ask about guns in the home when performing a child wellness exam. The use of bike helmets and exposure to secondhand smoke are childhood health concerns worth mentioning, but the importance of keeping guns unloaded and locked away is not.

Under the Firearm Owners’ Privacy Act, enacted in 2011, physicians in Florida could be fined or imprisoned for initiating this conversation, and could be charged with a third-degree felony punishable by a fine of up to $5 million. Thanks to public pushback, the law was amended to remove the criminal penalty. Instead, patients who feel “harassed” by their physicians’ questions about gun safety can complain to the Florida Board of Medicine, which can take disciplinary action against an offending physician.

In November 2012, ACOG joined an amicus brief in the case of Wollschlaeger v the State of Florida, asking the court to overturn the Florida bill, now known as the “physician gag law,” challenging, in part, the government’s right to interfere with a physician’s freedom of speech.

In another example of legislative interference, energy production politics gets in the way of doctors sharing relevant medical information with their patients. Four states—Colorado, Ohio, Pennsylvania, and Texas—prohibit physicians from disclosing information about exposure to chemicals used in hydraulic fracturing, or fracking. Scientific evidence shows that exposure to the chemicals used in fracking can result in a spectrum of health-care problems, from headaches to cancer. Can doctors talk about this with their patients? Not in these states.

While some states are trying to gag physicians by limiting what they can talk about with their patients, legislators in other states are considering requiring physicians to read, or offer to read, scripts to all patients who might have a terminal illness about end-of-life care options. Laws were enacted in California (2008) and New York (2011) to do just that. ObGyns are too familiar with legislatively mandated scripts; we know how inappropriate they are.

According to the Guttmacher Institute, in 2013, a number of states require abortion providers to read a script or provide written materials to patients seeking abortions; often these scripts contain medically inaccurate information. Twelve states require the physician to “inform” the patient about the ability of the fetus to feel pain, five states require the physician to claim that personhood begins at conception, and five states require doctors to say that abortion increases the risk of breast cancer. Six states require inaccurate information on the effects of abortion on future fertility.1

Serious penalties usually accompany these laws—financial fines, loss of licensure, and jail time. These and other legislative efforts infringe on physicians’ freedom of speech and force physicians to make terrible choices: Do you risk criminal prosecution or do you give your patient scientifically accurate and complete information? Do you adhere to your professional obligation to your patients, and risk putting your professional career on the line?


CLICK HERE to read other insightful articles by Ms. DiVenere.

Women’s reproductive health in the firing line

Nowhere is legislative interference more rampant than in the world of women’s health care. Over the past 2 years, an unprecedented number of bills have been introduced in the US Congress and statehouses restricting access to care for women and placing inappropriate requirements on physicians. The year 2011 was record-breaking in terms of abortion restrictions in the states, with 92 restrictions enacted.

In 2012, 42 states and the District of Columbia enacted 122 reproductive health provisions, one-third of them related to abortion restrictions. Forty-three new laws in 19 states were passed that restrict access to abortion. More than half of these new laws came from six states: Arizona was first with seven anti-abortion restrictions. Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin all had at least three.

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