May 29, 2015 —Summary of "Health Care Justice and its Implications for Current Policy of a Mandatory Waiting Period for Elective Tubal Sterilization," Moaddab et al., American Journal of Obstetrics & Gynecology, March 26, 2015.
"Both oral and written informed consent is the ethical and legal standard for the performance of ... elective tubal sterilization for all patients, regardless of source of payment," but "current health care policy and practice regarding elective tubal sterilization for Medicaid beneficiaries place an additional requirement on these patients and their obstetricians: a mandatory waiting 30-day period," Amirhossein Moaddab, of the Department of Obstetrics and Gynecology at Baylor College of Medicine, and colleagues writes.
The authors explain that the "decades-old" mandatory delay policy was "well intentioned" at its outset, but "has now come to have the effect of restricting women's access to elective tubal sterilization."
According to the authors, their commentary aims to "show that current restrictions are ethically impermissible because they are incompatible with the concept of health care justice in professional obstetric ethics." They write, "Obstetricians therefore should advocate for policy change."
Background on Mandatory Delay Policy
The authors note, "Up until the middle decades of the 20th century, compulsory sterilization programs existed in the United States." According to the authors, these programs "[i]nitially ... targeted intellectually disabled and mentally ill patients," but they also sterilized "many African American women and deaf, blind, epileptic, physically deformed, and low-income women ... against their will."
Moaddab and colleagues explain that the federal government in 1979 enacted well-intentioned legislation "that aimed to enhance women's health rights by regulating the process of consent and documentation before receiving surgical sterilization ... that is publicly funded."
"To this day federal law mandates that appropriate Medicaid consent forms must be signed at least 30 days before the service date and must be completed in their entirety, inclusive of both the woman and her health care provider's signature after disclosure of the risks, benefits, alternatives, and limitations to elective tubal sterilization," the authors write. They note that because "form is valid for 180 days (human pregnancy being approximately 280 days) ... [s]igned consent therefore is obtained after the mid gestation."
According to the authors, an exception to the delay is permitted "if the consent form has been signed and at least 72 hours have elapsed and if the recipient requires emergency abdominal surgery or if the recipient has a premature delivery," the latter of which still requires that the form be signed 30 days prior to the documented or expected due date. Meanwhile, they note that the "[r]isk of maternal morbidity in a future pregnancy is not considered in the federal form."
While the waiting requirement's "initial intent was to protect patient autonomy ... the unintended consequence 4 decades later is restricted access based on source of payment; elective tubal sterilization is readily available to women with a private source of payment but not readily available to Medicaid beneficiaries," the authors write.
They note about half of U.S. deliveries annually are paid by Medicaid and in turn "necessitate" the consent process. Further, they cite research that found that "insurance coverage exceptions, immigration status, and Medicaid sterilization-consent paperwork present potential barriers to obtaining post-partum tubal sterilization, which is one of the safest and most effective methods of contraception." In addition, they cite another study that found the delay policy has led to "up to 62,000 unfulfilled requests for postpartum sterilization, 10,000 abortions, 19,000 unintended births in the subsequent year, and an economically significant public cost of $215 million."
Health Care Justice Ethical Framework
The authors assess the delay policy via an approach "based on the concept of health care justice," which itself "is based on the ethical concepts of medicine as a profession and of being a patient."
According to the authors, "the ethical concepts of medicine as a profession" consists of two commitments from the physician: one "to the scientifically and clinically competent practice of medicine" and another "to the primacy of professional responsibility over self-interest." They write that the two commitments "make the physician a professional, rather than a self-interested practitioner" and "mak[e] it possible for an individual human being to become a patient," in so far as "clinical judgment [is] expected to benefit that individual clinically." Further, the authors note that the concept's "simplicity excludes such criteria as ability to pay" -- or "more precisely the source of payment" -- and "excludes gender as a criterion."
Moaddab and colleagues write that these "ethical concepts of medicine as a profession and of being a patient have important implications for the meaning of the ethical principle of justice in health care." They explain that "the principle of justice requires that like cases be treated alike," which in health care "requires that all patients receive clinical management based on their clinical needs" as "defined by deliberative ... clinical judgment." Similarly, "[h]ealth care justice also protects the informed consent process," which "should not be influenced by ethically irrelevant factors," the authors write.
According to the authors, "health care justice has both deontologic and consequentialist dimensions." The first dimension "appeals to reasons of rightness or wrongness of actions based on the ethical concept of being a patient and professional responsibility to the patient that is independent of consequences," while "[t]he consequentialist dimension ... appeals to the reasons for the rightness or wrongness of actions based on their clinical consequences and the professional responsibility to produce net clinical benefit and therefore to prevent clinically unnecessary harms," the authors write.
According to the authors, the current delay policy "allocate[s] access to [elective tubal sterilization] on the basis of the ability to pay, which is ethically irrelevant to being a patient" and "incompatible with deontologic professional responsibility to and for patients." Similarly, they note that while "[b]oth men and women can choose to undergo elective tubal sterilization," there are "different clinical practices based on gender, which, in this clinical context, is ethically irrelevant to being a patient" and in violation of "health care justice in its deontologic dimension."
Further, citing a separate study, the researchers write that "[t]he effect of current health policy is to increase unnecessarily the clinical risks of an unwanted pregnancy for female patients with public funding compared with patients with other sources of payment." According to the authors, "clinically unnecessary increased risk is incompatible with health care justice in its consequentialist dimension," as are "policies that prohibit tubal sterilization at the time of abortion."
The authors write that, "[f]rom the perspective of health care justice," the delay policy "that was designed to promote health care justice has resulted in policies and practices that, 4 decades later, violate health care justice."
According to the authors, "[a]cess by many women to elective tubal sterilization is based on source of payment, differs from that of men, and entails increased clinical risks of [unintended] pregnancy based on source of payment." The authors call for obstetricians to "invoke health care justice in women's health care as the basis for advocacy for needed change in law and health policy, to eliminate health care injustice in women's access to elective tubal sterilization."