Jurisprudence

How Doctors Can Use Medical Billing to Sabotage Abortion Bans

A woman's legs on a medical chair and a doctor filling out paperwork behind a computer.
A woman, who chose to remain anonymous, talks to Doctor Audrey before receiving an abortion at a Planned Parenthood Abortion Clinic in West Palm Beach, Florida, on July 14, 2022. Chandan Khanna/Getty Images

In January 2003, 39 surgeons in West Virginia went on strike and successfully forced a change in state law. Within weeks, this inspired thousands of doctors in New Jersey to follow suit; they collectively refused to provide medical care, except for emergency services, in order to put pressure on state lawmakers to yield to their demands. Both of these coordinated political actions were illegal. No one was prosecuted for them.

Given that roughly 80 million Americans were uninsured and systematically excluded from medical care in a for-profit system that contributed to tens of thousands of preventable deaths each year, you might expect the striking doctors were trying to ensure healthcare for their patients. If so, you would be wrong. The doctors’ goal in both of these cases was far less principled: they simply wanted to lower the caps on their malpractice liability.

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Although they were not in service of particularly noble causes, these instances of legal defiance underline the fact that while U.S. doctors have historically insisted that healthcare shouldn’t be ‘politicized,’ we have long recognized that healthcare is intrinsically political and have organized accordingly. It’s simply that the causes around which doctors have coordinated our political efforts have almost always pertained to our own financial interests rather than patient-centered issues like universal healthcare access, public health, or patient safety. The same political strategies we’ve used before, however, could easily be used for other purposes more in line with our ethical responsibilities to our patients.

Specifically, as reproductive health care rights are under acute assault across more than a dozen states after five unelected Supreme Court justices overruled Roe v. Wade, doctors in these places could now organize to thwart unjust laws and provide medical care for pregnant people in need. To do so, we might look to the long American tradition of civil disobedience—as well as our extensive power over medical billing.

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In 2005, Robert Macauley proposed in The Hastings Center Report, a leading bioethics journal, that U.S. physicians should engage in civil disobedience to ensure healthcare access for those excluded from care. He argued that doctors have both the practical means and ethical duty to “compel the government to fulfill its obligation of guaranteeing basic health care for all Americans, under threat of medical anarchy,” by which he meant the coordinated billing of medical care for uninsured patients under the names of those with Medicare and Medicaid coverage.

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Macauley wrote:

The threat itself may be enough to force the government to realize that while special interests (like the health insurance industry) have the money, physicians themselves have the power to document and bill and therefore to change the system. For the sake of the tens of millions of patients currently without health insurance, physicians must be willing to risk much of what they hold dear: their reputations, their incomes, their status in society. Only through self-sacrifice will sea change be effected, but with sufficient devotion and commitment, the goal is attainable.

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Two decades later—when more than 31 million Americans remain uninsured, thousands continue to die each month due to for-profit healthcare exclusion, and U.S. doctors are rewarded with the world’s highest physician incomes—the medical profession has yet to take such risks. Now, in the wake of the Supreme Court’s decision on abortion care, the majority of doctors, hospitals, and organizations like Planned Parenthood are not only declining to resist legal restrictions that further deny care to our patients; many are preemptively canceling appointments and denying people abortion care in anticipation of possible future liability.

This behavior is in line with the observations of historian Timothy Snyder, who has written, “Most of the power of authoritarianism is freely given. In times like these, individuals think about what a more repressive government will want, and then offer themselves without being asked. A citizen who adapts in this way is teaching power what it can do.” For doctors in America’s famously hierarchical and risk-averse medical culture, we have long been trained to obey the rules without questioning them; when the rules contravene our mandate to provide care, however, we must check our ingrained impulses.

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Doctors in America now face a choice: we can submit to legal decisions—imposed by an anti-democratic institution—that harm our patients while we enjoy the benefits of complicity with state-sanctioned violence, or we can organize to provide care to our patients while accepting the personal hazards that come with fulfilling our ethical obligations as privileged caregivers.

As moral philosopher John Rawls wrote, in the practice of civil disobedience, “We must pay a certain price to convince others that our actions have, in our carefully considered view, a sufficient moral basis in the political convictions of the community.” By defying the law and aligning ourselves with our patients rather than repressive legal systems, some doctors may incur professional penalties or even criminal prosecution. This may be unavoidable in some cases, but a politics predicated primarily on heroic individual self-sacrifice is not a viable path forward.

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What we need is strategic, organized refusals to cooperate with unjust laws such that we take on risk not as isolated doctors but as coordinated collectives. Work stoppages, which would in many instances not just inconvenience administrators and officials but also harm our patients, are not our only option. In America’s fee-for-service healthcare system that’s been so thoroughly constructed around billing codes, documentary disobedience may be our most effective tactic.

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Rather than recording abortion care under an individual doctor’s name, for example, the entire staff of a hospital or clinic could co-sign in open violation of repressive laws. Alternatively, we could together refuse to document or bill for abortion and prenatal care prior to fetal viability at twenty-four weeks’ gestation, instead filing this care under other medical billing codes and shifting its cost to the rest of our healthcare systems. Going further, to demand changes to unjust laws, we could strategically send public and private insurance systems into chaos within days via organized false billing without ever interrupting delivery of services to our patients. In all of this, we would need to compel our healthcare institutions, which depend on their physician employees and cannot operate without us, to join in refusing to comply with legal obstructions to care.

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Healthcare’s powerful professional organizations, such as the American Medical Association, American Nurses Association, and the American College of Obstetricians and Gynecologists, for example, could use their resources to help organize healthcare workers and issue guidance on how to document care to circumvent individual legal liability insofar as possible. They could also petition private healthcare companies to donate to this cause, put pressure on state medical boards to refuse to pursue punitive measures against doctors and nurses who break abortion laws in service of patient care, and guarantee legal and economic support for healthcare workers if they are legally threatened for providing medically appropriate care.

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With careful preparation, we should challenge those states seeking to criminalize abortion care to prosecute tens of thousands of their doctors and put hundreds of their hospitals out of operation. Dare state governments to bring their entire healthcare systems to a standstill. Make those who would seek to deny abortion care to their constituents face consequences. Few politicians, if any, would see this through if the medical profession used its full power to oppose them. And if they are foolish enough to try and if doctors are committed enough to hold their ethical ground, those politicians would not remain in power for long.

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By embracing a politics of care rather than of compliance, American physicians have an opportunity to rectify our historical failures to show up politically for our patients and for healthcare as a right. We should together heed the advice of Henry David Thoreau, who wrote in On the Duty of Civil Disobedience, “Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight.” The weight of one million American physicians would be considerable.

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