Noah Feldman, Columnist

Doctors Have the Right to Perform Abortions

That Oklahoma bill criminalizing abortion was unconstitutional, no doubt. But it was unconstitutional in a very interesting way.

May 22, 2016 at 2:30 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Don't forget the doctors.
Photographer: SAUL LOEB/AFP/Getty Images

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On Friday, Oklahoma Governor Mary Fallin vetoed a bill that would have effectively banned abortion in the state. The bill, which would have made performing the procedure a felony, was certainly unconstitutional. But it was unlawful in a very interesting way, because it raised the question of whether the right to abortion belongs to a woman or to her doctor. As it turns out, that question has been an important one ever since Roe v. Wade, a decision that actually emphasizes the rights of the physician.

The landmark 1973 abortion decision has achieved a status that’s extremely rare for Supreme Court cases: Almost every adult American has heard of it, but almost no one has read it. And if you haven’t read it, you shouldn’t feel bad. The content of the decision was essentially superseded by the 1992 case of Planned Parenthood v. Casey.