Ethical Progress on the Abortion Care Frontiers on the African Continent

The Supreme Court of the United States of America has overridden 50 years of legal precedent and reversed constitutional protections[i] for abortion in the country that were the result of the 1973 landmark Roe v Wade ruling. Pregnant women in the country do not enjoy a constitutional right to abortion any longer. Broadly speaking the result of this ruling results in a split of the country in terms of access to abortion care based on whether a woman lives in a Republican party controlled state or a Democratic party controlled state. The verdict has been widely condemned by associations of health care professionals, medical journals and the like, as much as it was celebrated by religious leaders like the Pope.[ii],[iii] None of that is terribly surprising.

Among secular bioethicists support for liberal access to abortion care has always been strong. The main ethical reasons for this have to do with respecting women’s rights to control over their own bodies[iv], as well as consequentialist ethical reasons that take cognizance of worse health care outcomes for the most vulnerable women in societies where restrictive access to abortion care regimes are in place[v]. The liberalization of laws on abortion, on the other hand, has demonstrably led to improved health outcomes for these women.[vi] The ethical arguments on abortion have been debated endlessly by bioethicists, there is little point in rehashing them here in any great detail[vii].

What is perhaps worth noting is that – unlike in the United States – access to abortion care has become in recent years easier in a number of countries on the African continent, including some of its very poorest. Much of this is the result of the so-called Maputo Protocol, or, more formally, the African Union’s Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.[viii] Since the Maputo Protocol came into effect in 2005, seven sub Saharan countries have taken steps to liberalise their abortion related legislation in order to bring their laws in line with the Protocol. To give just a few examples, since 2012 Benin is permitting abortion care even for economic and social reasons up to the 12^th week after conception. Cape Verde permits abortion on demand up to the 12^th week after conception, too. The Democratic Republic of Congo has taken to publishing the full text of the Protocol in the government gazette, thereby making it law.[ix] The result of this have been truly sweeping changes liberalizing the country’s abortion regime. Sierra Leone’s government introduced a bill in the country’s parliament that would, if passed, decriminalize abortion, and expand access to contraceptives as well as other reproductive health services. While this won’t change the country’s staggeringly high maternal deaths’ rate of around 10% over night, that is a result of unsafe abortion practices, it is an important start to bring about much needed change.[x]

Much more needs to be done on the continent as well as elsewhere in the global south. Access to abortion care is an essential feature of quality reproductive health care, but while it is arguably a necessary condition, it certainly is not sufficient. As Moodley and Akinsooto point out, even in a country like South Africa, with its liberal abortion care regime, ‘there is a need to place more emphasis on the delivery of efficient contraceptive services and reproductive health education for women.’[xi] I’m tempted to add here, ‘and men’. Unsurprisingly, in the United States the same political actors who support the reversal of Roe vs Wade are also keen to make access to contraceptives more difficult.[xii] The legal tool of choice is conscientious objection accommodation.[xiii],[xiv] Women’s health and well-being continue to remain secondary considerations in ideologies that motivate forced birth policy commitments.

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[i] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[ii] Tanne JH. 2022. Roe v Wade: Medical bodies declare support for abortion rights, as doctors and states face confusion. BMJ 378:o1643 https://www.bmj.com/content/378/bmj.o1643 [accessed July 6, 2022]

[iii] Allen EA. 2022. In new interview, Pope Francis talks about Roe v Wade, resignation rumors. The Tablet  July 05. https://thetablet.org/in-new-interview-pope-francis-talks-about-roe-v-wade-resignation-rumors/ [accessed July 6, 2022]

[iv] Thomson JJ. 1971. A Defense of Abortion. Philosophy and Public Affairs 1(1): 47-66.

[v] Perritt J, Grossman D. 2021. The Health Consequences of Restrictive Abortion Laws. JAMA Internal Medicine 181(5): 713-714.

[vi] Moodley J, Akinsooto VS. 2003. Unsafe Abortion in a Developing Country: Has Liberalisation of Laws on Abortion Made a Difference? African Journal of Reproductive Health / La Review Africaine de la Sante Reproductive 7(2): 34-38.

[vii] Chadwick RF, Schuklenk U. 2021. This is Bioethics. Wiley-Blackwell: Chichester: 79-84.

[viii] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa | African Union (au.int)

[ix] J.O. n° spécial du 14 mars 2018-A4_PROTOCOL (ilo.org)

[x] Akinwotu E. 2022. Sierra Leone backs bill to legalise abortion and end colonial-era law. The Guardian July 06. https://www.theguardian.com/global-development/2022/jul/06/sierra-leone-backs-bill-to-legalise-abortion-and-end-colonial-era-law [accessed July 6, 2022]

[xi] Moodley J, Akinsooto VS. 2003. Op. cit.

[xii] Wensel TM, Brown SA. 2020. Contraceptive prescribing and the Catholic pharmacist. Journal of the American Pharmacists Association 60(2): 291-292.

[xiii] Bhakuni H, Miotto L. 2021. Conscientious objection to abortion in the developing world: The correspondence argument. Developing World Bioethics 21: 90-95. https://onlinelibrary.wiley.com/doi/pdf/10.1111/dewb.12302 [accessed July 6, 2022]

[xiv] Villarroel R, Montero A. A critical review of conscientious objection and decriminalisation of abortion in Chile.  Journal of Medical Ethics 44:279-283.

 

Nature Author's Oddball Piece on Bioethics

The journal Nature has published a lengthy Commentary piece by a UK based sociologist on Bioethics (the field, not the journal). It's part of a series of papers marking the journal's 150th anniversary. 

Sarah Franklin, the Commentary's author, apparently undertakes in her actual job research on reproductive sociology, as opposed to bioethics.Her Commentary describes aptly the rise of Bioethics as a consequence of funding generously offered to ELSI academics during the heydays of the Human Genome Project. Her take on bioethics is that we should do away with ethics in the context of biomedicine and replace it with freewheeling societal engagement, no doubt facilitated and led by sociologists like herself. She generally thinks that Bioethics began to wither once the HGP funding fell by the wayside. Franklin also thinks that 

'The stereotype of bureaucratic, box-ticking ethical compliance is no longer fit for purpose in a world of CRISPR twins, synthetic neurons and self-driving cars. Bioethics evolves, as does any other branch of knowledge. The post-millennial trend has been to become more global, less canonical and more reflexive. The field no longer relies on philosophically derived mandates codified into textbook formulas. Instead, it functions as a dashboard of pragmatic instruments, and is less expert-driven, more interdisciplinary, less multipurpose and more bespoke. In the wake of the ‘turn to dialogue’ in science, bioethics often looks more like public engagement — and vice versa.'

This truly amounts to a lovely mix of half-truths and nonsense. What she describes as box-ticking ethical compliance still has its place, of course, in the context of, for instance research clinical trials involving human participants (just check the binding national regulatory framework in your country for that). These documents were written by multidisciplinary teams of ethicists, lawyers, clinicians and patient representatives. Quelle surprise. Bioethicists offered here ethical analysis, input, background papers etc, but they never were the ones who single-handedly could have taken credit for such documents. In that sense, the field never relied on philosophically derived mandates codified into textbook format. I wonder whether Franklin ever had a look into bioethics textbooks. I rather doubt it. 

Franklin is mistaken when she claims that the field is less expert driven. Of course it is expert and expertise driven, even when it comes to AI in medicine (as I write this, significant funding for research precisely in the area of ethics and AI in medicine is made available in pretty much every Western country that I can think of!). It has always been a multidisciplinary field, but a field of multidisciplinary expertise nonetheless. 

An entirely different question, that she conflates with bioethical analysis, is how biopolicy ought to be developed in a democratic society. Bioethicists have never claimed that they ought to have the last word on it. That's not how democracy works. Invariably, on controversial subjects, there would be public consultations by policy makers, and in addition to expert analysis by bioethicists, and others, public opinions would be sought and engaged before eventually a parliament would take a vote on a controversial issue. Incidentally, that is even true with regard to court judgments. The Canadian Supreme Court in its decision on assisted dying took into account both ethical and legal arguments as well as empirical information on Canadians' views on the subject. Again, quelle surprise. 

What is mostly off-base about Franklin's take on bioethics is that she sees apparently no room for ethical analysis and expertise on matters biopolicy when we could have the freewheeling societal dialogue instead that she prefers. Clearly there is no contradiction in having both. The former should hopefully fruitfully inform the latter. 

Unsurprisingly, conservative commentators like the US based creationist 'think tank' Discovery Institute's Wesley Smith claimed that Nature  declared 'Bioethics is Obsolete'. Of course, Nature didn't declare that. A sociologist with no apparent expertise in bioethical analysis declared that in a commentary in the journal. Franklin, of course, has a minor conflict of interest here, depending - as she does - on research funding opportunities also accessed by bioethicists. Wouldn't it be convenient if bioethicists would just step aside for 'one of the world's leading experts on the social aspects of reproductive and genetic technologies, IVF, cloning, embryo research, and stem cells', as she describes herself on her departmental website? Probably, but that's not how that works in the real world. 

I do think that the kind of research Franklin undertakes is valuable. What's odd is that she seems to believe that it is the only thing that there ought to be, certainly bioethics should get out of her way. Editing two mainstream journals in our field, I have little to go by other than article downloads. Readership for bioethics peer reviewed expert content has never been greater. Submissions of papers to the journals have never been higher. None of these are signs of a field in decay. 

Incidentally, a good way to compare the academic relevance and impact of a leading bioethicist vs Franklin is probably citations. So, I checked on google scholar how Sarah Franklin (Cambridge) fares compares to Julian Savulescu (Oxford). 

Franklin citations

2017 - 593 ;  2018 - 668 ; 2019 - 503

Savulescu citations

2017 - 1695 ; 2018 - 2000 ; 2019 - 1750

Why am I thinking that there might just be a little life left in Bioethics?

The funniest thing about Franklin's attack on Bioethics, and Smith's full-throated support of her agenda, is that we see again feminism and conservative anti-choice activism finding common cause. It's not for the first time, it won't be the last time. Let's hope Franklin enjoys her new-found companions. 

2019 Google Scholar Metrics for Bioethics Journals

Quite possibly the below table will be displayed in odd ways on your screen. 

Usual CoI blurb applies. I co-edit two of the journals in this list. List up-dated August 2019. Any mistakes are my own, please alert me if you discover discrepancies between what I am reporting and what you're able to find on google scholar.

                                                                                                                           h5               h5-median

1. Nursing Ethics                                                                              37          51 
2. Science and Engineering Ethics                                                         36           52
3. Journal of Medical Ethics                                                             34          44 
4. The American Journal of Bioethics                                              31        39
5. bmc medical ethics                                                                       30           43 
6. Bioethics                                                                                       25         35 
7. Hastings Center Report                                                                 24          35  
8. Journal of Law, Medicine and Ethics                                                 23         37     
9. Medicine, Health Care and Philosophy                                        23         35
10. Neuroethics                                                                                   19         27
11. Journal of Empirical Research on Human Research Ethics         19          26
12. American Journal of Bioethics Neuroscience                              18            27
13. Journal of Bioethical Inquiry                                                                     18        25
14. Nursing Philosophy                                                                          18      22 
15. Cambridge Quarterly of Healthcare Ethics                                            17          22 
16. Journal of Medicine and Philosophy                                              16          22 
17. Kennedy Institute of Ethics Journal                                                16          22
18. Health Care Analysis                                                                     15       22
19. Public Health Ethics                                                                                 15          19
20. NanoEthics                                                                                               14         20 
21. Theoretical Medicine and Bioethics                                                         14          18 
22. Developing World Bioethics                                                                    13          17
23. Journal of Medical Ethics and History of Medicine                           12         25 
24. HEC Forum                                                                                       12         20
25. American Journal of Bioethics Empirical Bioethics                                12          14 
26. Indian Journal of Medical Ethics                                                     11       17
27. The Journal of Clinical Ethics                                                        11          15
28. Ethik in der Medizin                                                                         9           14
29. Perspectives in Biology and Medicine                                                9        14
30. Narrative Inquiry in Bioethics                                                                8              12
31. International Journal of Feminist Approaches to Bioethics              8         11
32. The New Bioethics                                                                           8            11
33. Ethics, Medicine and Public Health                                                 7           10 
34. South African Journal of Bioethics and Law                                         7            7
35. Christian Bioethics                                                                            5          7
36. Ethics and Medicine                                                                        5             6 
37. Asian Bioethics Review                                                                   4           7
38. JAHR - European Journal of Bioethics                                             4          5
39. Journal international de bioethique                                                  4             5
40. National Catholic Bioethics Quarterly                                              4             5
41. Chinese Medical Ethics                                                                   2             2

*h5-index is the h-index for articles published in the last 5 complete years. It is the largest number h such that h articles published in 2014-2018 have at least h citations each

**h5-median for a publication is the median number of citations for the articles that make up its h5-index

Certainty is not a defensible standard for policy making in the context of assisted dying

I mentioned in a Bioethics editorial a while ago that new frontiers are opening in the assisted dying debate. As an increasing number of jurisdictions decriminalize assisted dying in some shape or form, ethical arguments against all models of assisted dying are seen increasingly as settled in favour of this practice. I suggested in said editorial that the focus of the academic debate has shifted toward a new set of questions: the scope of assisted dying (i.e., who should be eligible), the status of advance directives, and the issue of conscientious refuser accommodation.^[1] It seems my prediction wasn't far off the mark. The Canadian Academies have produced a voluminous expert panel report focusing extensively on scope (mature minors, mental illness) as well as the issue of advance directives. I highly recommend it to your attention.^[2]

Unfortunately, as is so often the case with these sorts of panels, it is unclear how its members were appointed: Why was a particular member appointed and not someone else? What criteria were used to determine who would and who would not be chosen? And, indeed, did the funder of the report, the Government of Canada, have a veto right on particular potential expert members? All of this matters if the sponsor of the report, in this case the Canadian Academies, wants to meet basic standards of public reasonableness and accountability. After all, the Government of Canada is currently defending its restrictive assisted dying legislation in the Supreme Court of Canada. The expert panel was tasked with summarizing the state of knowledge, but not with providing policy guidance to the government. It is not inconceivable that the government hopes to use evidence from these ostensibly authoritative reports in the Court. For that reason alone, transparency about the procedures guiding the appointment of experts drafting reports financed by that same government is important.

The chairperson of the group drafting the report on mental illness and assisted dying, Kwame McKenzie, made a statement to Canadian news media in support of current government policy that excludes competent people who suffer from refractory mental illness from access to assisted dying. He reportedly cautioned that ‘no one can be completely certain that a mentally ill patient is never going to get better’.^[3] Which takes me to the actual topic of this blogpost: certainty as a standard for health policy making. Complete certainty, if that were ever possible in the context of health and disease, where most decision making is based on probability as opposed to certainty, might be a defensible threshold if nobody were harmed by the implementation of such a high standard. If the setting of a high standard were cost neutral, there would be no good reason not to have such a standard.

Of course, in the real world, such an elevated standard comes at a cost. A high price is paid by those patients who have decisional capacity and live with refractory mental illness that renders their lives not worth living to them, who would avail themselves of assisted dying if it were available to them.^[4] Regulatory attempts influenced by Dr McKenzie's demand for certainty would result in a restrictive eligibility policy harming precisely those patients who will, in reality, never get better. It is uncontroversially true that that is the case for many patients, particularly those suffering from refractory depression. Dr McKenzie's take is identical to the policy favoured by the government sponsor of this report. High suicide rates among this particular group of patients suggest that many of these patients vote with their feet while well intentioned experts and policy makers implement policies that are detrimental to what is arguably in their best interest.^[5]

Ultimately, policy makers implement legislation aimed at overriding competent patients’ choices simply because they disagree with their choices. The justification for such strong paternalistic action rested so far on vacuous labels, such as ‘vulnerability’, under the cover of which individual agency was removed wholesale from a whole class of patients with legal capacity. This is now apparently complemented by demands for certainty. If medical practice and health policy depend on certainty as a conditio sine qua non, going forward, no further regulatory action can be taken on any subject. In fact, the current assisted dying legislation, as it requires that death of the assistance‐seeking person is ‘reasonably foreseeable’, would have to be reconsidered, given that we can never be certain that death would actually be forthcoming. The decriminalization of the possession and use of cannabis in Canada, that was recently legislated by the Government of Canada, would have to be reconsidered, because we cannot be certain what the consequences of that will be for a whole range of issues. 

The lesson to be taken from the demand for certainty is this: mentally ill people with legal capacity are treated unjustifiably as special cases by mental health experts and policy makers. They are being stigmatized in the name of protecting them. Strong paternalism is inflicted on them in ways that would not be considered acceptable in a liberal, modern 21st century society if it affected others who
have legal capacity, but are not afflicted by the mental illness label.

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[1] Schuklenk, U. (2017). New frontiers in end‐of‐life ethics (and policy): Scope, advance directives and conscientious objection. Bioethics, 31, 422–423.

[2] Canadian Academies. (2018). Medical assistance in dying: Expert panel on medical assistance in dying. Ottawa. Available at: https://www.scienceadvice.ca/reports/medical‐assistance‐in‐dying/ [Accessed Jan 6, 2019].

[3] Harris, K. (2019, Jan 3). The next frontier in the right to die: advance requests, minors and the mentally ill. CBC News. Available at: https://www.cbc.ca/news/politics/maid‐assisted‐death‐minors‐mental‐illness‐1.4956388 [Accessed Jan 6, 2019].

[4] Rooney, W., Schuklenk, U., & van de Vathorst, S. (2018). Are concerns about irremediableness, vulnerability, or competence sufficient to justify excluding all psychiatric patients from medical aid in dying? Health Care Analysis, 26, 326–343.

[5] Schuklenk, U., & van de Vathorst, S. (2015). Treatment‐resistant major depressive disorder and assisted dying. Journal of Medical Ethics, 41, 577–583.