Analysis: AMA’s lawsuit seeks to protect patient-physician relationships, free speech
The AMA and two women’s health organizations recently sued the state of North Dakota, claiming North Dakota’s compelled speech laws threaten patient-doctor relationships by “inflicting irreparable harm on patients and forcing physicians to violate their obligation to give honest and informed advice” and breach the First Amendment.
A legal expert told Healio Primary Care the lawsuit may suggest a strategy the medical community feels compelled to take as more state governments involve themselves in health care matters.
Lawsuit centers on science, definitions
The lawsuit stems from two North Dakota laws, according to an AMA press release.
The first, scheduled to take effect on Aug. 1, requires a physician performing an abortion and/or his or her agent to tell the woman seeking the abortion at least 24 hours before the procedure that it may be possible to reverse its effects by using certain medications. This law’s text also states these women must receive information that explains how to obtain additional information and help in finding a medical professional who can help in providing misoprostol and mifepristone. The second law requires physicians to tell patients that abortion terminates “the life of a whole, separate, unique, living human being.”
AMA president Patrice A. Harris, MD, MA, said the society’s lawsuit seeks to preserve basic fundamentals of medicine.
“The patient-physician relationship is the cornerstone of health care, and depends upon honest, open conversations about all of a patient’s health care options. North Dakota’s law undermines this relationship by requiring physicians to mislead and misinform their patients with messages that contradict reality and science. The AMA will always defend science and open conversations about all health care options available to patients,” she said in a press release.
The Red River Women’s Clinic and Center for Reproductive Rights, co-plaintiffs in the AMA lawsuit, said doctors should not be compelled to serve as spokespersons for a state that leans conservative politically.
“Lawmakers are forcing falsehoods and propaganda into the mouths of physicians against their will, effectively forcing them to violate their ethical obligation to do no harm,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, the state’s only abortion clinic, said in the press release. “The First Amendment prohibits the government from hijacking the doctor-patient relationship to advance a political agenda.”
“North Dakota’s laws are forcing us to say things that violate our medical ethics and will soon force us to say things that are simply false and not backed up by science,” Tammi Kromenaker, director of Red River Women’s Clinic, added.
A representative from North Dakota’s attorney general’s office told Healio Primary Care that the complaint was being reviewed and would have no other comment.
Legal merits of the suit
Rebecca B. Reingold, JD, senior associate at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center provided insight on both sides’ arguments.
“The plaintiffs feel that the first law compels physicians to provide information about an experimental practice whose safety and effectiveness is unproven and that does not meet clinical standards. They are likely to emphasize that medication abortion is a safe and effective option during the early stages of a pregnancy and that medication abortion reversals are not supported by credible, scientific evidence,” she said in an interview.
“Conversely, the state of North Dakota — the defendants — likely feel that the state’s interests in protecting potential life and the health of the pregnant woman justify upholding the constitutionality of both laws,” Reingold continued.
“In a previous decision, the U.S. Supreme Court established that protecting potential life and protecting a pregnant woman’s health are permissible justifications for restricting abortions pre-viability, including in the case of a counseling requirement intended to persuade women to choose childbirth over abortion. So, the state of North Dakota may argue that its interest in protecting potential life and/or a pregnant woman’s health serves as an adequate justification for enacting both laws,” she said.
The AMA and other plaintiffs are basing their argument, at least in part, on the 2018 U.S. Supreme Court decision, National Institute of Family and Life Advocates vs. Becerra, Reingold said.
In that case, the U.S. Supreme Court held “that the government cannot regulate the speech of physicians to advance controversial ideas or to discriminate based on the content and/or viewpoint of the speaker,” she said, noting that the AMA, et al, lawsuit may not reach trial.
“The state of North Dakota needs to find a credible expert witness to vouch for the scientific and medical credibility of the medication abortion reversal counseling requirement. When a similar Arizona law was challenged in federal court in 2015, the state had a difficult time finding such an expert and the judge ultimately dismissed the lawsuit,” Reingold told Healio Primary Care, adding that even if the case proceeds at the state level and its outcome appealed, the U.S. Supreme Court may not intervene.
“The current Supreme Court has already declined to grant review of cases involving two different types of abortion restrictions — Alabama’s ban on a certain method of abortion used after the first trimester and Indiana’s ban on abortions performed because of the fetus’ sex, race or genetic anomaly,” she said.
“However, if the case does in fact make it that far, it will be interesting to see whether the Supreme Court will stand by the strong First Amendment protections it afforded speech about abortion in National Institute of Family and Life Advocates vs. Becerra,” Reingold continued.
Justices appointed by Republican presidents filed the majority opinion of the court in the Becerra case. However, one of those justices, Kennedy, has since retired. Healio Primary Care has previously reported how some view the record of his replacement, Brett Kavanaugh, on women’s rights in rulings before he was appointed to the Supreme Court.
Reingold discussed the potential impact of each side winning the lawsuit.
“If AMA and the other plaintiffs win, it would send an important message to other states that have enacted or are considering enacting similar laws and set an important precedent for the courts that may eventually review the constitutionality of those laws at some point in the future,” she said.
“A victory for the state of North Dakota could have devastating consequences for the health of women not only in that state, but also other parts of the country. The experimental practice of reversing medication abortions has not been approved by the FDA and is opposed by the American College of Obstetricians and Gynecologists because it has not been proven safe or effective. Upholding the law that requires a physician performing an abortion and/or his or her agent to tell the woman seeking the abortion at least 24 hours before the procedure that it may be possible to reverse its effects by using certain medications could result in women later relying on that information to undergo this experimental practice and, in the process, being exposed to unknown side effects of an unverified medical procedure,” Reingold continued.
She added that such a mandate “would erode physicians’ ability to exercise clinical judgement, adhere to best practices in medical care, and comply with ethical standards. It could also interfere with women’s decision-making about abortion, introducing shame and stigma into the patient-physician relationship, undermining the trust that is vital to that relationship, and potentially affecting women’s willingness to seek health care.”
AMA lawsuit part of trend
North Dakota’s laws that attempt to control certain components of patient-physician discussions is not unique, Claudia E. Haupt, PhD, JSD, an associate professor of law and political science at Northeastern University School of Law, told Healio Primary Care.
“State legislatures have been increasingly active in trying to tell doctors what they may or may not say to their patients, and this is especially problematic when the speech the state demands contradicts professional knowledge,” she said.
Seven other states — Arkansas, Idaho, Kentucky, Nebraska, Oklahoma, South Dakota and Utah — have passed laws regarding reproduction health rights that resemble North Dakota’s, according to the AMA. All of those states are currently governed by Republicans, as is Florida, which recently sought to intercede in a different area of health care, Haupt noted.
“A law in [Florida] prohibited doctors to ask their patients about gun ownership as a matter of course. The law was struck down as a violation of the First Amendment. So, the question in this and in similar lawsuits is whether the First Amendment provides a shield against state interference that contradicts professional knowledge,” she said.
Haupt noted added that a court ruling against AMA, et al, could do more than affect health care.
“The doctor-patient relationship is based on the idea that the doctor has professional knowledge that the patient lacks. What is good professional advice is for the medical profession to decide, not for the state legislature. The legal framework around the doctor-patient relationship is designed to ensure that the patient receives comprehensive, accurate advice in accordance with the professional standard. Whether a doctor meets the profession's standard of care is how courts determine malpractice liability,” she said.
The National Institute of Family and Life Advocates vs. Becerra case (which itself wasn't actually about professional speech, that is, about professional knowledge or expertise) emphasized that professional malpractice liability and informed consent are firmly rooted in the law,” Haupt added.
Stay tuned to Healio for continuing coverage of this case. For more information concerning political hot topics in health care, check out our Health Care and Politics Resource Center, a compilation of the latest news stories and analysis on health care laws, proposals, regulations and policies in the United States and how they are likely to affect clinicians and patient care. Be sure to bookmark the page for future reference. – by Janel Miller
ABCnews.com. "Interested in the Supreme Court?" Accessed July 6, 2019.
Eligon J and Eckholn E. "New laws ban most abortions in North Dakota." March 26, 2013.
RGA.org. Governors. Accessed July 6, 2019.
Supreme Court of the United States Syllabus. “National Institute of Family and Life Advocates, dba NIFLA, et al. v. Becerra, Attorney General of California, et al.” Accessed July 6, 2019.
Disclosures : Harris is president of AMA, Northup is president and CEO of the Center for Reproductive Rights and Tammi Kromenaker is director of Red River Women’s Clinic. Neither Reingold nor Haupt report any relevant financial disclosures.