The Epstein Health Law and Policy Program

 Unauthorized Pelvic Exams: Public Engagement Initiative

Medical teaching is crucial to our health—training medical professionals to identify normal and abnormal anatomy helps all of us.  Yet some exams are by their very nature intimate and invasive, like teaching medical students how to palpate a woman’s vagina or pelvic region.  Often these teaching exams are performed on women who are admitted for gynecological surgery.  Sometimes, patients tell us, medical students perform pelvic exams for the student’s benefit on women admitted for non-gynecological surgery.

For nearly two decades, Professor Wilson has spearheaded efforts to require express consent for intimate exams when the exams are for the student’s, rather than the patient’s benefit (see “Autonomy Suspended”, “Unauthorized Practice”, and “Using Tort Law to Secure Patient Dignity” for articles addressing this issue).

Teaching medical students to identify abnormalities by probing a woman’s vagina and cervix — without express consent — can be stopped easily. Ten states have now made the practice illegal, including New York, Maryland, Utah, and Delaware in 2019. Others are:

• California

• Hawaii

• Illinois

• Iowa

• Oregon

• Virginia

Yet, the practice persists because the controversy it periodically sparks dies out eventually. And, like clockwork, attending physicians and medical educators resume using women like test dummies — stripping them of the right to decide who touches their bodies.

In the early 2000s, small-scale studies reported that large numbers of medical students were performing exams on anesthetized patients. To understand why, Professor Wilson interviewed faculty at more than a dozen medical schools across 10 states. Four flimsy justifications emerged for dispensing with consent to medical procedures that are done to train aspiring healthcare professionals.

• The first turned informed consent on its head: We cannot ask for consent, teaching faculty claimed, because if we ask, the patient might say no. Of course, removing the opportunity for autonomy because a person might exercise it makes a mockery of personal agency.

• The second excuse rested on a fiction: that women implicitly consented to be used for medical teaching when they accepted care at a teaching hospital. But how many people would know that Beth Israel Deaconess is a teaching hospital for Harvard University, or that Stamford Hospital, 40 miles from Manhattan, is a teaching hospital for Columbia University. Neither name nor proximity would tip off reasonable patients. Indeed, in one study, most elderly patients had no idea they were being treated in a teaching hospital.
  
  Insurance status only compounds matters. Many patients choose network providers for cost reasons, not because they are willing to be subjected to medical teaching.

• Third, medical educators make legal claims about the forms patients sign — that a student’s intimate examination on an unconscious woman is an ordinary component of the surgery to which she consented; and that consent for one procedure encompasses consent for additional related procedures. Any fair reading of these forms is that women consent to procedures for their benefit, not for students’.

• The final excuse would be the most compelling, if true: Not enough women will consent to help train students. Yet, studies refute this. Women routinely consent to pelvic examinations for educational purposes.

Those explanations, and the shocking revelation that women could be used for teaching without even being asked, catalyzed what appeared to be tangible change. In 2003, the Federal Trade Commission heard testimony about non-consensual student exams. In the months leading up to those hearings, the American College of Obstetricians and Gynecologists disavowed earlier guidance that had posited a duty by women to participate in “teaching exams.” After the hearing, the Association of American Medical Colleges announced that unauthorized exams are “unethical and unacceptable."

Recent work has made clear that these laws have not hastened meaningful change.  Medical students have raised concerns about the ethics of not asking. Practicing physicians have questions whether unauthorized practice should be discarded.

And of course, patients have urged lawmakers to put a stop to not asking.

Since January 1, 2019, Professor Wilson and a team of students have been supporting legislative efforts in twenty-four bills across eighteen states. Four have become law in ten months:

• Utah (2019 UT S.B. 188, introduced February 19) [This bill passed both chambers unanimously; the Governor signed the bill Tuesday, March 26, 2019] (Robin’s testimony)

• Maryland (2019 MD H.B. 364, introduced January 30) [This bill has passed both chambers unanimously; the Governor signed the bill Monday, May 13, 2019] (Robin’s testimony to the Maryland General Assembly) (Robin’s testimony to Maryland Governor Larry Hogan)

• Delaware (2019 H.B. 239, introduced June 18) [This bill passed both chambers unanimously; the Governor signed the bill Tuesday, September 10, 2019]

• New York (2019 NY S.B. 1092, introduced January 10) [This bill passed both chambers unanimously; the Governor signed the bill Monday, October 7, 2019] (Robin’s testimony)

As of January 1, 2020, Professor Wilson and her team are supporting stakeholders and lawmakers working on the following bills:

• Arizona (2020 S.B. 1027, introduced January 23) (Ashley Chong’s and Roxana Madani’s Testimony)

• Connecticut (2019 CT S.B. 16, introduced January 11) (Robin’s testimony); (2020 S.B 243, introduced February 24)

  (Ashley Chong’s and Roxana Madani’s Testimony) (Phoebe Friesen’s Testimony)

• Georgia (2019 S.B. 279, introduced April 2)

• Massachusetts (2019 Bill S.1219, introduced January 22)

• Minnesota (2019 SF 2782, introduced April 3)

• Missouri (2019 MO H.B. 486, introduced January 8)

• Nebraska (2019 NE L.B. 735, introduced January 23)

• New Hampshire (2019 NH H.B. 422, introduced January 8; 2019 NH S.B. 117, introduced January 3) (Robin’s testimony)

• Oklahoma (2019 OK H.B. 1452, introduced February 4; 2019 OK S.B. 621, introduced February 4) (Robin’s testimony)

• Rhode Island (2019 RI H.B. 5797, introduced March 1)

• Utah (2019 UT S.B. 188, introduced February 19) [This bill passed both chambers unanimously; the Governor signed the bill Tuesday, March 26, 2019] (Robin’s testimony)

• Texas (2019 TX H.B. 3017, introduced March 4)

• Washington (2019 WA S.B. 5282, introduced January 16) [This bill passed both chambers unanimously on Tuesday, March 10, 2020] (Robin’s testimony) (Ashley Chong’s and Roxana Madani’s Testimony)

• Wisconsin (2020 WI S.B. 635, introduced January 23) (Robin’s testimony)

These bills have bipartisan sponsorship in many states.

For coverage of these reforms, see:

• She didn’t want a pelvic exam but got one anyway while under anesthesia. In many states, consent is not required, Chicago Tribune

• She Didn’t Want a Pelvic Exam. She Received One Anyway, New York Times

• States Move to Protect Anesthetized Women from Non-Consensual Pelvic Exams, Route Fifty

• Bills seek special consent for pelvic exams under anesthesia, Savannah Now

• Pelvic exams performed without patients' permission spur new legislation, ABA Journal

• Med Students Are Doing Vaginal Exams on Unconscious, Non-Consenting Patients, Vice News

• Maryland Gov. Larry Hogan OKs bill requiring pelvic exam consent, The Baltimore Sun

• States seek explicit patient consent for pelvic exams, Bay News 9

• Law Professor’s Scholarship Leads to New Legislation Banning Unauthorized Exams, Washington & Lee

• Are Med Students Practicing on You?, Men's Health

• Commentary: #JustAsk: Stop treating unconscious female patients like cadavers, Chicago Tribune

• The ethics of pelvic exams performed on anesthetized women without their knowledge, Deseret News

• The health reporter is in, Dec. 13, 2018, The News-Gazette

• #MeToo? Some Hospitals Allow Pelvic Exams Without Explicit Consent, Indiana Public Radio

• Some teaching hospitals perform non-consensual pelvic exams, WAND

• #1548: Botanical Art; Unconsented Pelvic Exams; A Police First, WAMC