Matthew Wynia
September 15, 2022
N Engl J Med 2022; 387:959-961
DOI: 10.1056/NEJMp2210192
Here is an excerpt:
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. 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. 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. Too often, organized medicine has failed to fulfill its duty to protect patients when doing so required acting against state authority. Although there are many examples of courageous individual physicians defying unjust laws or regulations, examples of open support for these physicians by their professional associations — such as the AMA’s offer to support physicians who refused to be involved in “enhanced” interrogations (i.e., torture) during the Iraq War — are uncommon. And profession-wide civil disobedience — such as Dutch physicians choosing to collectively turn in their licenses rather than practice under Nazi rule — is rare.