Physicians will be deprived of their constitutional right to practice ethical medicine and, in turn, patients’ health will be endangered if a federal appeals court doesn’t uphold a district court decision that stopped a Montana law from infringing on their rights.
In an amicus brief, the Litigation Center of the American Medical Association and State Medical Societies urges the 9th U.S. Circuit Court of Appeals to uphold a permanent injunction that prevents Montana officials from enforcing a 2021 law that would bar physicians and other health professionals from knowing the vaccination status of employees or patients if they refuse to answer questions about vaccination status or immunity passports.
Montana H.B. 702—passed in the wake of COVID-19, but applying to all vaccines—would expose patients and health care workers to vaccine-preventable diseases for merely seeking medical care and would “impede physicians from caring for their patients according to ethical standards, including those set forth in the Code of Medical Ethics,” says the amicus brief filed in the case, Montana Medical Association et al. v. Knudsen.
“The right of qualified physicians to practice their profession is a liberty interest, protected by the Due Process Clause [of the 14th Amendment]. A state cannot revoke or reduce that privilege without a compelling cause. No such compelling cause exists here,” the brief tells the court
Further, the brief says, the law “places physicians in an intolerable bind: they must choose between being faithful to their patients and their professions or conforming to a law that serves little or no purpose in a doctor’s office.” And it “strips physicians of the essence of their practice, the privilege of placing service to patients above interests that the politics of the moment may find attractive.”
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
An ethical bind
With “first, do no harm” at the heart of the Hippocratic Oath, it stands to reason that everyone working in the health care system should get vaccinated for preventable diseases.
H.B. 702 “forces physicians to violate that core ethical principle and thus compromise their professionalism by exposing the most vulnerable patients to infectious diseases when those patients appear for office visits,” the brief says.
Meanwhile, statements throughout the AMA Code of Medical Ethics make clear that physicians must protect their patients. A few examples:
- One of the principles of medical ethics says that while caring for a patient, the physician must regard responsibility to the patient as paramount.
- Opinion 8.4, “Ethical Use of Quarantine and Isolation,” says physicians should take appropriate protective and preventive measures to minimize transmission of infectious diseases from physician to patient.
- Opinion 8.7, “Routine Universal Immunization of Physicians,” says that during outbreaks of a disease where there is a safe, effective vaccine physicians’ responsibility may extend to requiring immunization of their staff.
While Montana lawmakers are not constitutionally required to adhere entirely to the AMA Code of Medical Ethics, the brief says the core principle of placing patients first—above political goals unrelated to health care—should be protected.
The brief notes that if the court reverses the district court’s decision and the law again applies to physician offices, physicians who follow the law wouldn’t be practicing unethically if they were making the best of circumstances the legislature imposed.
“The point is that the law places physicians in an intolerable bind: give up the core ‘do no harm’ mandate or cease practice altogether,” the brief says.
A protected constitutional right
The Due Process Clause of the 14th Amendment protects a citizen’s right to earn a livelihood without state governments placing undue or repressive restrictions on them.
It’s a principle that “should certainly apply to physicians” who want to adhere to their profession’s core ethical standards, the brief says. Being prevented from practicing ethically impacts them, their patents, the medical profession as a whole and “in some sense, society’s fundamental democratic values and well-being.”
The brief says the law “shows the readiness of Montana lawmakers to sacrifice the health of patients with deficient immune systems in the service of the political cause of the moment. The Fourteenth Amendment does not allow it.”
