A New Meaning For Civil Procedure: Are Doctors Willing To Break Laws To Help Their Patients?

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When I hear most people talk about natural law or civil disobedience nowadays, my brain tends to turn off like when a freshly minted guitarist says, “Anyway, here’s Wonderwall.” I’m sure you’ve met the types — the folks who would have you believe that mask mandates are the new slavery or something, as if wearing masks somehow replaced the prison industrial complex. But occasionally, my brain tunes in. When the big stuff, the stuff that really matters hits concrete, words like liberty, care, and righteousness have the potential to stop ringing hollow and start ringing true. The Dobbs decision is one of those mattering moments, and doctors are beginning to put their practice where their mouth is.

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“We docs are rule-followers, [b]ut the one place where we might become rebels is when a state law directly forces us to harm our patients. Hospitals are risk-averse and tightly regulated. Departure from the law can result in lost funding, censure, or discreditation. Nevertheless, hospitals protect undocumented patients from immigration authorities. ERs revive patients who overdose on street opioids without informing the narcotics police. “If a state law today forces us to harm patients by waiting until they are at death’s door before we intervene with life-saving surgery, it is reasonable to debate whether that’s a law we should collectively disobey.” – Matthew Wynia, Director of the University of Colorado’s Center for Bioethics and Humanities

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It is important to remember that doctors aren’t alone in this. Looking at you DAs and hospital in-house counsel. Along with everyone else who has an interest in doing what is right. We’re in one of those odd historical moments where the rule of law is in a precarious position — if you don’t believe me, I’m in good company. But as we think about the rule of law, we should also consider the rule of what’s right. Courts can rule on the constitutionality of laws, but their justness is a different concern altogether. The justness of the laws we live under, much like the legitimacy of the jurists who enforce them, is ours to determine. History will judge our doctors and lawyers on what we did when things really mattered. What will win out? Our zealous advocacy and oaths to do no harm, or the fear that we’ll lose our licenses? Can we stomach practice as usual if it means allowing preventable deaths? Pamela Merritt, the Medical Students for Choice Executive Director, shared the worry that we may go the way of Ireland before specialists begin to stand on their principles. As abortion prohibitions become increasingly draconian, people will die. Full stop.

It is great to see that firms are doing their part to maintain healthcare access for their employees. The danger is that we become comfortable enough to engage with these problems abstractly. It is very easy to distantiate and think that a corporation or firm will fix it; maybe some doctor or lawyer over there will do what needs to be done. But civil disobedience as a practice works best when it is done as a social and collective effort. To the degree that we are involved, we have to respond to the needs before us. It’s either that or future generations will treat us like guitar store employees hearing “Stairway to Heaven” whenever we harp on about the important stuff.

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SHOULD DOCTORS BREAK THE LAW? [The Intercept]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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Abortion, Civil Disobedience, Government, Lawyer Ethics, Legal Ethics, Preventable Deaths