Don't forget the doctors.

Photographer: SAUL LOEB/AFP/Getty Images

Doctors Have the Right to Perform Abortions

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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 The content of the decision was essentially superseded by the 1992 case of Planned Parenthood v. Casey.

When my constitutional law students read Roe v. Wade, they’re almost always surprised by what they find. To a remarkable degree, the opinion is about doctors. The second paragraph sets the tone by saying that abortion is the subject of “vigorous opposing views, even among physicians.” That “even” is telling. Justice Harry Blackmun was setting the stage for his opinion by hinting that, when it comes to abortion, medical expertise should make a difference to our legal thinking.

Soon after, Blackmun tells his readers that alongside Jane Roe, whom we now know was a woman named Norma McCorvey, there was a doctor who was also party to the case -- one James Hubert Hallford, described as “a licensed physician” who “had been arrested previously for violations of the Texas abortion statutes,” and against whom two further prosecutions were then pending.

The opinion later engages in a lengthy description of the history of medical opinion about abortion, with special attention paid to the developing views and policies of the American Medical Association and the American Public Health Association.

When Blackmun gets to the fundamental right to privacy, something even more striking happens. After discussing the medical consequences of not having an abortion and the possibility of distress, Blackmun sums up: “All these are factors the woman and her responsible physician necessarily will consider in consultation.” The theme of consultation with the physician recurs again several times.

In an important sense, Blackmun is describing the privacy right as the right to a private consultative relationship between a woman and her physician on the question of whether to terminate her pregnancy. As he puts it, together “a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy.”

Most remarkably, when describing the right to abortion before viability, Blackmun actually writes: “The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”

At this point in the opinion, the woman is no longer consulting with her physician. Now the physician is consulting with “his” patient. It’s as if the right has shifted entirely to the doctor -- who is assumed to be a man.

Blackmun concludes explicitly that “the decision vindicates the right of the physician to administer medical treatment according to his professional judgment.” In his view, “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”

Feminist scholars have long noticed -- and criticized -- the physician-centered rhetoric and logic of the Roe decision, and with good reason. There is something paternalistic and even subordinating about the notion that an implicitly male physician guides and perhaps controls a woman’s body.

That’s why my students are so surprised. They assume, reasonably enough, that Roe v. Wade is a landmark decision establishing a woman’s right to choose. Instead they find an opinion that transfers responsibility for the woman’s decision from the state to the physician -- with the woman’s control over her own body almost an afterthought by the end of the opinion.

Yet in context, there’s also reason to think that Blackmun, appointed to the court by Richard Nixon as a conservative, might never have written Roe v. Wade if it weren’t for this emphasis on the doctor’s perspective. Blackmun spent nine years, from 1950 to 1959, as full-time legal counsel to the Mayo Clinic. These were his most fulfilling professional years, he later said, better than his time as an appellate judge and later justice. Blackmun had considered medical school as an undergraduate before opting for law. Both professionally and personally, he identified deeply with the medical profession.

Several lessons may be drawn from a close reading of the place of the physician in the Roe v. Wade opinion. One is that especially famous Supreme Court opinions are often more important for what they signify symbolically than for what they actually say.

Another is that transformational ideas like women’s equality don’t come easily in the law, just as they don’t come easily in life. The road to the abortion right was paved with paternalism.

Some observers, myself included, might draw a parallel to Justice Anthony Kennedy’s gay marriage decision, which achieves a wonderful result but does so by validating the rather questionable ideal of marriage as the answer to the problem of existential loneliness.

But a further, final lesson from rereading the Roe decision is that when it comes to abortion, the physician’s rights matter, too. That’s true doctrinally, in the sense that it helps explain why the Oklahoma bill was unconstitutional. But it also matters structurally. Increasingly, new technology makes some early abortions almost physician-free. Yet it remains the case for many women that abortion requires medical participation and monitoring. The right to an abortion requires the right to medical assistance for that right -- the woman’s right -- to be meaningful.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Tracy Walsh at twalsh67@bloomberg.net