In their article Objective Standards of Medical Judgment: A Myth of Abortion Law, Graber et al. explore the different legal standards for evaluating if a physician properly offered abortion care under a medical exception to states’ abortion restrictions. Graber et al. explain how the “objective” legal standard, which does not look at the particular judgment of a physician or their subjective “good faith” but instead tries to articulate if a “reasonable physician” would consider the abortion necessary for the life or safety of the patient, is a poor fit for modern clinical decision-making practices. While this piece focuses tightly on the use of legal standards to limit access to abortion care, it should be understood in the broader context of a legal and political environment that is increasingly shifting the locus of medical decision-making power from the medical profession to state actors.

For physicians, a “reasonable” medical recommendation generally is one made in good faith.Reference Morgan ¹ A physician acting “reasonably” would draw on her medical training and experience, not just on her subjective opinion; indeed, Texas defines a “reasonable medical judgment” as one made by a physician who is “knowledgeable about a case and the treatment possibilities for the medical condition involved.” ² But so too would a physician acting in good faith, who would rely not only on her personal views but would inevitably bring to bear her medical background. ³ Major medical associations do not use these legal terms to define the kinds of decisions they make. Instead, they emphasize that medical judgment involves both elements that could be characterized as “reasonable” — including “years or decades of medical education [and] training” and “consisten[cy] with clinical guidance” — as well as elements that are more subjective, including their own experience and “their patients’ individualized needs” and wishes. ⁴ Even the Texas Supreme Court acknowledged in Zurawski that reasonableness and good faith “are not diametric opposites. Presumably a doctor using reasonable medical judgment most often is also acting in good faith. And a doctor acting in good faith presumably often does so by exercising reasonable medical judgment.” ⁵

Although the medical world does not distinguish reasonableness from good faith, Texas does, as do other actors looking to control the practice of medicine. The difference, according to these legal actors, is that good faith can be based on “belief alone.” ⁶ In other words, they suspect that a doctor’s good-faith judgment will be premised on an ideology that conflicts with theirs. The anti-choice Charlotte Lozier Institute argues that medical associations feign misunderstanding of the Texas law “because of a preference for legal elective abortion” that leads them to “sow[] confusion in furtherance of political goals, not patient safety.” ⁷ A lobbyist for Tennessee Right to Life similarly warned against granting doctors more authority because “[o]nce one doctor is let off the hook in a criminal trial, it would be open season for other doctors who wanted to perform bad faith terminations.”Reference Surana ⁸ In their project to constrain the practice of medicine according to an anti-choice worldview, activists advance the narrative that physicians are wily ideologues, who must therefore be reined in with the criminal punishment that health care bans impose on them.Reference Mallory, Chin and Lee ⁹

Abortion is not the only arena in which anti-choice actors accuse physicians of acting based on ideology or personal interest. In support of a ban on gender-affirming care for minors, the state of Alabama claimed that physicians frequently ignore the standards of care set by the World Professional Association for Transgender Health (WPATH), “particularly the parts they view as too conservative.” ¹⁰ According to the state, physicians providing gender-affirming care proceed aggressively with “an absence of surgical standards” because such treatments are “huge money makers.” ¹¹ And in doing so, Alabama says, providers of abortion and gender-affirming care are one and the same: “physicians have jettisoned the WPATH standards in favor of quicker ‘care,’” including one who started providing hormone therapy to minors “after her abortion practice dried up.” ¹² Anti-choice actors thus deride major medical associations as “reflect[ing] ideology more than science” when medical standards of care conflict with anti-choice goals. ¹³

In response to these fears, many states are codifying an “objective” standard to determine whether a patient meets an exception to access banned care. As Graber et al. note, the objective standard is a legal framing and not one that reflects modern clinical practices.Reference Graber, Peterson and Detrick ¹⁴ Indeed, they compellingly argue that using an objective medical standard in these cases would be incompatible with shared decision-making, the pinnacle of patient-centered care.

We are concerned that the shift to “objective” standards is an intentional reassignment of power between the medical profession and the legal system.Reference Shachar, Baruch and King ¹⁵ Rather than defer to the medical profession, the law is designed to second-guess physicians’ expertise by asking whether their decisions are “reasonable.” In doing so, the state takes the decision-making power of what is appropriate care to offer a patient away from the clinician and assigns it elsewhere: to prosecutors through selective enforcement of care bans, to the judiciary hearing cases about whether a particular course of treatment violated the ban, or to regulatory agencies or state medical boards who might publish guidance about what situations qualify for an exception to banned care. This move is in keeping with general attacks on medical and scientific expertise from federal and state governments and courts, including the shift away from deference to agencies on statutory interpretation found in Loper Bright v. Raimondo, 603 U.S. 369 (2024), ¹⁶ the dismissal of experts from federal scientific advisory committees such as Healthcare Infection Control Practices Advisory Committee (HICPAC)Reference Talbot ¹⁷ and the Advisory Committee on Immunization Practices (ACIP),Reference Hughes and Rosenbaum ¹⁸ and the threatened use of Medicaid and Medicare funding conditions to control the scope of medical practice.Reference Shachar, Lynch and Costello ¹⁹ We agree with Graber et al. that physicians should use their voices to speak out and educate the community on the medical decision-making process. But we are concerned that some state and legal actors are intentionally looking to improperly encroach upon the practice of medicine.Reference Baruch, King and Shachar ²⁰