Friday, December 12, 2008

NEJM to Women: You Can't Handle the Truth! [Serge]

Anyone who needs evidence that doctors do not often make the best logical thinkers need look no further than this amazing article in the New England Journal of Medicine. At issue is the S. Dakota law than mandates that doctors provide to their patients certain information as part of the informed consent process. I must admit that I am uncomfortable with the way part of the law is written, but I am amazed at the objections of the medical community with some if the wording in the statute. To put things in perspective, I am involved in an informed consent conversation with patients between the ages of 15-25 literally every day I am at work. I know a bit about this. Lets see what the NEJM objects to:

The majority in Rounds [the case that declared the law constitutional] dismissed the First Amendment argument by focusing on the statute's inclusion of a definition of "human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation."1 The reference to this definition, the court found, makes the description of the fetus as "a whole, separate, unique, living human being" a biologic, rather than ideological, one.
This is because the description of a human embryo or human fetus as an individual living member of the species homo sapiens is completely true, accurate, and scientifically verifiable. Using the term human being in that context is accurate, and is biological. I'm starting to wonder what the problem is.

But although state legislatures have substantial discretion to define terms used in their laws, they cannot merely use the iteration of definitions to cloak religious, philosophical, or metaphysical language in statutory garments and call it "scientific" or "biologic."
Read that last sentence slowly. Despite the fact that the statute clarifies exactly what it means by a human being, and truthfully states it is a human being that is killed during an abortion, the author seems to believe that the term is really some form of cloaking device for religious (!), philosophical, and metaphysical language! How dare we use scientific truths to cloak our religious ideology and foist it on unsuspecting young abortion patients! Believers of all sorts need to take of the "statutory garments" off of any scientific term we use, regardless of their truth, to reveal the religious or ideological underpinnings.

As a side note, I am a follower of Jesus Christ and an oral and maxillofacial surgeon. Should I be concerned about any cloaked religious meanings when I use the term "third molar teeth" in my consent form? Just asking.

Proof of cloaked meaing in true scientific terms? This should be good...

The dissent in Rounds noted that "human being" has no specific scientific or medical meaning and that its meaning varies with the context. Although it may refer to purely biologic characteristics, especially when distinguishing humans from other species, "it also may be a value judgment, indicating entitlement to the moral or political rights shared by all persons."2 Post notes that the question of "whether the fetus is a human being is thus understood by all sides to the abortion controversy to be an essentially contested moral proposition."4 In its abortion cases, the Supreme Court has shied away from making value judgments related to the term "human being," when life begins, or whether the fetus is a "human life." The Eighth Circuit's position that the use of the definition resolves the ideology question is overly simplistic, at best.
We should worry about cloaked ideology because any term can have different meaings based on context. First, I believe this is wrong. I am unsure of any context in which the basic meaning of "human being" as a member of our species would be incorrect. Granted that some may have used the term inaccurately in the past, but that doesn't make it incorrect to use in any context as long as the term corresponds to an organism of our species.

Secondly lets consider the context in which the term human being is used. It is used in the context of an informed consent discussion. In other words, the context is a doctor stating "this is the thing that I need your permission to cut apart and suctioned out of your body." Why should the accurate biological description of the "thing" be inappropriate?

I could go on further but lets move on a bit...

The requirement that women sign each page of the disclosure document allows them no latitude to decide for themselves how much or little detail they wish to have about the procedure. The requirements of certification and for writing and recording of questions and answers in the medical record will have a chilling effect on open discussions between physicians and patients and are likely to "compel a woman to conform her speech to the state's chosen messages."2
Before I continue let my explain the informed consent process for wisdom teeth surgery, one that most would agree is a far easier decision to make than whether or not to have an abortion. The patient views a flash presentation showing the risks of the surgery, complete with drawn pictures of impacted teeth, the nerve in the jaw, etc. They have to press a button that they understand each aspect before they click to the next one. The have the opporunity to ask questions both to me and in the flash demonstration at any time, and these questions are documented and written in the chart. They then read a detailed 1 page consent form describing all of the risks of surgery and anesthesia (including death) and initial every paragraph. This is not optional - third molar surgery is an elective procedure. I don't know one surgeron that would be willing to cut something out of a patient without the patient knowing what the procedure entails.

So why should it be different for something as potentially life changing as an elective abortion? Regardless of your position on whether abortion should be legal, shouldn't a patient seeking abortion be given the most accurate information possible, or should we claim that they cannot handle the truth and should be protected from knowing what they are consenting to? I think enough of women to believe that they can handle the truth. I wish the rest of the medical establishment did also.


  1. What are your doubts or hesitations about the informed consent law in question, Serge?

    Btw, I was just reading a dreadful philosophy book that tried to say the same thing--that "human being" is really a sneakily religious term. Balderdash.

    And notice it's just supposed to be religious, metaphysical, etc., because the issue is _controversial_. So if we get a society that thinks blacks are not deserving of human rights, voila, calling a black man a "human being" becomes metaphysical or religious! Magic.

    Just an odd point: My daughter had wisdom teeth extracted. I'm sure I had to sign a consent form for it at some point, but I don't remember initialing each paragraph. Come to think of it, my husband drove her to the actual surgery on the day, so maybe he had to do the initialing. But we certainly had plenty of chances to stand around and talk about the panoramic X-ray with the surgeon. I remember that very clearly.

  2. Hi Lydia - its nice to hear from you.

    I'm slightly hesitant about the language of "relationship" in the law, which seem out of place in an informed consent discussion, and I believe is a bit confusing. Also, although I have no question that abortion places a significant risk of depression and suicide on a woman, one can claim the literature is not clear on the topic. I'm a firm believer that we need make sure to not overstate our case.

    There is no legal requirement that a patient initial every paragraph in a consent, but our liability carrier strongly recommends it. I've never had a patient object. It is just odd that the NEJM would complain about signing very page.


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