Impacting the Scales of Justice

News articles began surfacing two decades ago about women—often victims of sexual assault—who were traumatized when they learned they had received, without prior consent, pelvic exams while under sedation for unrelated procedures. In many cases, these exams were done by medical school students as part of their training.

Robbins (who herself has a law degree from Rutgers Law School in Camden) wanted students in her “Legislative Policy and Drafting” course to conduct research on the problem and analyze other states’ legislation. “The students really had influence on the final shape of New Jersey’s law,” Robbins said.

The legislation, signed into law by Gov. Phil Murphy, prohibits invasive medical exams on unconscious patients without their prior written consent. New Jersey Sen. Fred Madden, whose district includes parts of Camden and Gloucester counties, was a primary sponsor of the bill. “The Rutgers students played an instrumental role in this process,” he said. “Their research provided a template for fine-tuning the bill we had introduced. I am truly thankful for the active and conscientious input of the Rutgers Law students.”

Paul Prendergast, a 2019 Rutgers Law who was among the first students in Robbins’ course to take up the issue, was pleased the work resulted in the new law. “It has been a long time coming,” he said. Kate Doyle, a third-year law student who helped shepherd the companion bills through the legislature, agreed. “I’m relieved and happy to see this law on the books,” she said.

Prior Consent Now Mandatory

The new law requires health care providers to get prior written consent for any exam on a patient’s reproductive organs, breasts, or rectum to be conducted while the patient is unconscious. The statute includes an exception in cases of a medical emergency when prior consent cannot be obtained. Health care providers who violate the provisions are subject to professional discipline for professional misconduct.

When testifying to the Senate Health, Human Services, and Senior Citizens Committee in May 2021, Doyle said that accounts of unexpected exams frequently have appeared in major outlets, regional and local newspapers, and across social media. She said that one TikTok video addressing the issue has been viewed more than 1.8 million times. “Some trauma survivors will read these stories about nonconsensual invasive exams, worry this will happen to them, and sacrifice needed health care for fear of being re-traumatized,” Doyle told the committee.

Doyle again testified at a January 2020 hearing of the General Assembly’s Health Committee, revealing that she was a victim of a 2010 sexual assault. When a doctor recommended in April 2021 that she undergo a colonoscopy, Doyle said she sought assurances that she would not receive a pelvic exam while under anesthesia. “I received at best half-answers, so I canceled the procedure,” Doyle testified. “I am living proof that people, especially women, are declining recommended care because they’ve learned about these exams.”

Hurdles Along the Way

The proposed legislation languished for long stretches, in part because statistics on such procedures weren’t tracked, Prendergast said. “There were a lot of hurdles along the way,” he said. Prendergast spearheaded the early effort alongside Lex Wissner and Arthur Murphy, both 2020 graduates of Rutgers Law in Camden, and continued to work on the legislation as an aide to Assemblyman and Deputy Speaker Paul D. Moriarty, one of the bill’s sponsors. Moriarty, who represents parts of Camden and Gloucester County, called the Rutgers Law School students “a valued resource” who proposed amendments that strengthened the bill and addressed important concerns.

In her January testimony, Doyle said that several New Jersey medical school students recently came forward and informed legislators that they had been directed by supervising physicians to perform such exams while patients were sedated. She said she believes that information cinched the legislation’s passage. “The medical students really put themselves out there,” Doyle said.

Madden, who said a constituent brought the issue to the attention of him and fellow legislators of the 4th District, said the law protects survivors of sexual assault as well as medical students who object to performing the exams without patient consent. “The law puts an end to an appalling practice that disproportionately affected people who receive their care from teaching hospitals, where these exams are performed.”

Doyle and Rutgers Law classmates Esmé Devenney and Jackie Manning submitted proposed amendments based on their research of how other states had handled certain sticking points. One amendment stated that violators face professional misconduct proceedings by the New Jersey State Board of Medical Examiners. Another specified that patients must sign a separate form granting consent for examination of anal, breast, and/or pelvic regions. A third amendment dealing with the emergency exception in the law made clear that in those cases, patients must be notified of the procedure afterward. All three amendments were incorporated in the new law.

At its core, the law is intended to “sanctify patient trust,” according to Doyle, who intends to pursue a career in reproductive justice. “It’s not about pointing fingers at doctors.”

Overall, she said the experience was eye-opening. “It really illuminated to me that there are flaws not only in the legal system, but in the legislative process,” she said, adding that she wants to “be a part of improving access to receiving justice in both these systems.”