Ethical and Legal Issues in Perinatology

Key Points

In Roe v. Wade (1973), the U.S. Supreme Court determined that a fundamental “right to privacy existed in the Fourteenth Amendment’s concept of personal liberty” that is “broad enough to encompass a woman’s decision whether or not to terminate a pregnancy” before fetal viability without state interference.
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the U.S. Supreme Court reaffirmed the “core” of Roe v. Wade and ruled that before fetal viability, states cannot “unduly burden” a woman’s decision to terminate a pregnancy (i.e., although consent and waiting periods may be constitutionally acceptable, states cannot regulate abortion in ways that will actually prevent women from obtaining them).
Roe and Casey are critical to understanding the rights of obstetricians, which are derived from the rights of their patients, because they are the major sources of law regarding how far states can go to regulate decisions made in the obstetrician-patient relationship.
Roe has been the source of political controversy since it was decided in 1973. Congress has enacted the Hyde Amendment every year since the mid-1970s, prohibiting the use of federal funds for almost all abortions, and its constitutionality has been upheld by the U.S. Supreme Court.
The Hyde Amendment was the basis for another similar amendment, the Dickey-Wicker Amendment, which prohibited the use of federal funds for human embryonic stem cell research and was the basis for a temporary injunction that prohibited the NIH from funding such research in 2010 (overturned in 2011) under the Obama administration’s human embryonic stem cell research rules.
To protect patient privacy and autonomy, no information obtained in genetic counseling or screening should be disclosed to any third party without the patient’s authorization.
Self-determination and rational decision making are the central purposes of informed consent, and information on recommended procedures, risks, benefits, and alternatives should be presented in a way that furthers these purposes.
The fetal-maternal relationship is a unique one that requires physicians to promote a balance of maternal health and fetal welfare while respecting maternal autonomy. Obstetricians should not perform procedures that are refused by pregnant women, although reasonable steps to persuade a woman to change her mind are appropriate.

Reproductive Liberty

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Although only about one in four pregnancies ends in elective abortion, abortion has been the most controversial and political medical procedure in the United States for the past four decades.
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The U.S. Supreme Court ruled that corporations could have religious beliefs and that these beliefs could permit them not to include some birth control methods (that the corporation inaccurately thought induced abortion) in the health insurance plans of their female employees.
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It is essential that obstetricians have a clear understanding of Roe and its enduring influence on patient rights—especially reproductive liberty, medical practice, and politics.
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Pregnant women still have a constitutional right to abortion because the fetus is still not a person under the Constitution.
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The Court held that women have a constitutional right of privacy that is fundamental and “broad enough to encompass a woman’s decision…to terminate her pregnancy.”
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The viability of a specific fetus remains a matter of medical judgment to be determined by the attending physicians in a manner consistent with good and accepted obstetric practice.
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By the end of the 1980s, a pattern in Court decisions could be discerned in which abortion regulations that (1) significantly burdened a woman’s decision; (2) treated abortion differently from other, similar medical or surgical procedures; (3) interfered with the exercise of professional judgment by the attending physician; or (4) were stricter than accepted medical standards were struck down by the Court.
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After Casey, Roe stood for the proposition that pregnant women have a “personal liberty” right—“privacy” went unmentioned—to choose to terminate their pregnancies before the point of viability and that the state cannot “unduly burden” such a right by erecting barriers that effectively prevent the exercise of that choice.

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