Supreme Court’s abortion decision puts doctors in legal uncertainty : Shots

dr. Kara Beasley protests the destruction of Roe vs. Wade by the United States Supreme Court in Denver, Colorado on June 24, 2022.

JASON CONNOLLY/AFP via Getty Images


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JASON CONNOLLY/AFP via Getty Images


dr. Kara Beasley protests the destruction of Roe vs. Wade by the United States Supreme Court in Denver, Colorado on June 24, 2022.

JASON CONNOLLY/AFP via Getty Images

Historically, doctors have played a large role in the legality of abortion. In the 1860s, doctors worked with the newly formed American Medical Association to ban abortion in the US

A century later, they did the opposite.

In the 1950s and 1960s, when states liberalized abortion laws, “the charge actually came from doctors who said, ‘This is insane, we can’t practice medicine, we can’t use our medical judgment if you tell us that this is off the table. is,” explains Melissa Murray, a law professor at New York University.

Supreme Court ruled in favor of doctors in Roe v. Wade in 1973. The majority spoke of “a woman’s right to choose an abortion in consultation with her doctor,” Murray says.

Yet doctors and patients are virtually absent from the Supreme Court’s latest majority opinion on abortion in Dobbs v. Jackson Women’s Health Organization† According to the opinion, Judge Samuel Alito uses the derogatory term “abortion” instead of doctor or physician or obstetrician-gynaecologist.

Legal experts say this is a major shift in the way the courts view abortion, and creates a dangerous new legal reality for doctors. In states where abortion is restricted, health care providers may be in a position to counsel patients seeking an abortion, including those dealing with pregnancy complications, in a legal context that treats them as potential criminals.

“Alito’s framing is that abortion is and was a crime — that’s the language he uses,” said Mary Ziegler, a law professor at the University of California, Davis. There is no dispute, she says, that “the result of a decision set aside” roe short term will be the criminalization of doctors.”

Roe v. Wade was arts-oriented

Doctors took center stage in the court’s first landmark decision on abortion, Roe v. Wade

“The original roe decision — it was very, very doctor-centered — extremely so,” said Ziegler, who has written extensively on the legal history of abortion. “In the beginning, this was a right that was very much about healthcare and the patient relationship.”

roe and the abortion decisions that came after, such as: Planned Parenthood v. Casey “had the framework that abortion is kind of an individual right, but it’s also health care,” explains Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School.

The court essentially said: “You can put restrictions on abortion services and on the qualifications of health care providers as you do for other types of health care, and as long as they are not so onerous that we think they imply roe and Caseywe’re fine with that,” says Shachar.

State lawmakers seeking to restrict abortion did so using the health care regulation apparatus, she says.

Those restrictions include laws regarding informed consent, waiting times, telemedicine restrictions, clinic prescriptions, hospitalization requirements for health care providers, insurance restrictions, and more.

The attempt to limit abortion through medically unnecessary regulation — “was at the same time, I think, treating abortion as health care and delegitimizing the idea that abortion is health care,” Ziegler says.

These regulations often sought to control the details of how doctors administer abortions more strictly than other fields of medicine, she notes. “The phrasing of the anti-abortion movement was basically, ‘We protect women from the ‘abortion industry’ by regulating the way abortion providers operate.” †

A new legal framework

A more recent abortion decision – Gonzales v. Carhart in 2007 — was a preview of the Supreme Court’s move to defer doctors in the context of abortion, Ziegler says. At stake was the legality of the so-called “partial birth abortion,” a procedure used to perform late abortions, which Congress banned in 2003.

“The battle in that case was over whether doctors should be allowed to determine what this procedure is and whether it is necessary for patients or whether Congress does,” she says. “The Supreme Court in the case is essentially saying that if there is any kind of disagreement about science, lawmakers may cut the ties.”

In dobbs, the Supreme Court’s latest decision on abortion, “it’s an even bigger offense because there’s no pretense to care about doctors,” she says.

Supporters of the dobbs do not view the absence of doctors as an omission. Abortion “really has no place in the practice of medicine,” Dr. Christina Francis of the Association of Pro-Life Obstetricians and Gynecologists to NPR after the decision was released. Her group submitted an amicus brief in the dobbs case, which urged the court to quash Roe to Wade.

In his majority opinion, Alito cites the Mississippi law prohibiting abortion after 15 weeks, which called abortion “a barbaric practice, dangerous to the mother patient and degrading to the medical profession.”

Ziegler says the idea has been seeping into the anti-abortion movement for years “that abortion was not a medicine, not a health care.” She says it was sparked in the 1980s when Bernard Nathanson, a physician who used to perform abortions, underwent a political and religious conversion.

“He wrote this book in the 80s called tear down Americawhat he called a exposé of the ‘abortion industry,’ she explains. “That term really caught on with the anti-abortion movement — that abortion was essentially a profitable industry, kind of like the tobacco industry.”

That idea is still powerful and its influence can be clearly seen in dobbs, she says. Alito’s view reflects the idea that “abortion providers are not doctors in the sense we usually understand — that historically they were considered criminals and what they do is unprotected.”

A ‘brilliant’ omission

Many doctors and legal analysts strongly disagree with Alito’s opinion. Two dozen medical groups, including the American College of Obstetricians and Gynecologists and the American Medical Association, told the court that abortion is an important part of reproductive health care, that it is safe and that doctors should be able to treat patients without government interference.

“I think that not taking into consideration the interests of the pregnant person and of the clinicians treating them [in the majority opinion] was eye-catching,” said Molly Meegan, Chief Legal Officer and General Counsel at ACOG. She adds that the use of the term “abortion” in the opinion was “inflammatory, inaccurate — these are clinicians, these are health care providers, these are medical professionals.”

Harvard’s Shachar disagrees with the “history and traditions” approach Alito used in his analysis to establish that abortion is not a protected right, focusing on 19th-century statutes.

“Medical care just changed so drastically from — bite a bullet and we’ll amputate your leg,” she says. “It’s really shocking to say, ‘We have to take the historical view,’ when we all agree that we want to live in a modern society that has medical care, that doesn’t treat women as chattels.”

Michele Goodwin, who leads the Center for Biotechnology and Global Health Policy at UC Irvine, says: dobbs and state abortion laws now set to take effect select physicians who offer abortions “for disparate treatment among several other types of care.”

“That would be one thing if these were in fact very risky procedures leading to high death rates, but in fact it’s quite the opposite,” she says. Abortion is very safe, she adds, pointing out that pregnancy is 14 times more likely to lead to death than an abortion. That means doctors who perform abortions “are actually absolutely essential in providing reproductive health care,” she says.

The role of doctors moving forward

Doctors who perform abortions are in an incredibly difficult position as they try to navigate the new legal landscape, especially in cases where a pregnant patient is ill or has complications. If you intervene, you risk breaking the law and being charged, losing your medical license and even going to jail. Do not intervene and you risk your patient’s life and possibly sued by the patient or family.

“We hear from our doctors on the ground day and night,” says ACOG’s Meegan. “They’re scared, they’re in an impossible situation and they don’t know how to define laws that happen by the minute.”

dr. Katie McHugh is an OB-GYN who provides childbirth and abortion care at several clinics in Indiana, where abortion is currently still legal. Since the Supreme Court ruling, she has seen a surge in new patients from Ohio, Tennessee and Kentucky for abortion care. She tries to keep up with the laws in these neighboring states to know what she can do for these patients.

“We try to be very, very careful,” she says. “Especially as things evolve, I’m sure I’ve made a mistake. And it’s so scary for me to know that I’m not just concerned about my patients’ medical safety, which I always worry about, But now I’m concerned about their legal safety, my own legal safety.”

“The criminalization of both patients and caregivers is incredibly disruptive to normal patient care,” she adds.

The legal landscape is changing rapidly. Bans come into effect, some have been blocked by judges, and new restrictions are being drafted by state lawmakers. The laws in effect are often confusing and unclear, and doctors warn that this is likely to affect care beyond abortion, including miscarriage care and treatment for ectopic pregnancy and more.

It may be that physician groups like the American Medical Association and ACOG are getting involved in the legal battle here and playing a part in pushing for abortion laws to be liberalized again, just as they did decades ago.

“I think medical associations have a responsibility and an influence that needs to be used now,” Meegan says. She notes that the AMA recently passed a resolution defining abortion as a human right, and that many organized medical groups in various specialties are united in the fight against the criminalization of medical care.

“Recent political and legal mobilizations around abortion have not been led by doctors,” Ziegler notes. “Historically, doctors have been a very important reason why abortion was decriminalized earlier, and if… [they’re] I think you need to potentially have the medical profession more outspoken and united to talk about this than it has been so far.”

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