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Copyright 1996 David C. Reardon. Excerpted with permission for from Making Abortion Rare, published by Acorn Books, PO Box 7348, Springfield, IL 62791-7348 for internet posting exclusively at www.afterabortion.org. All Rights Reserved.

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CHAPTER FOUR
THE KEY IS IN ROE


A political strategy is meaningless if the legislation it achieves is struck down by the courts. While it may eventually be possible to overturn Roe v. Wade, our strategy must not depend on this. Instead, we are better served by looking at Roe and the subsequent abortion decisions more carefully to see how their nuances can be turned to our own advantage. By working with these precedents, rather than against them, we can pass laws which are within the bounds allowed by Roe for protecting women from dangerous abortions. 

Furthermore, by carefully defining the issue as one of protecting women's health interests we can confidently predict the Court's reaction. First, since the Court has already ruled on these issues pertaining to women's rights and the doctor's duties, the judicial principle of stare decisis would require them to uphold our pro-woman statutes. In short, the Supreme Court has already painted itself into a corner; we just haven't taken advantage of it, yet. Second, any attempt by the Justices to void our pro-woman statutes would clearly place them in the position of protecting abortionists at the expense of women, a position which would outrage the middle majority whose sympathies are for women, not abortionists. Third, moderates on the Court would welcome a "face saving" way to get out from under the abortion issue without actually overturning Roe. Our pro-woman laws open the door for curtailing abortion on demand without requiring the Court to actually admit its errors. 

Putting Roe in Context

The Roe decision was clearly results oriented. Determined to respond to the necessities of the time, which included exaggerated fears of a "population explosion," environmental degradation, the rise of a welfare state, the emancipation of women, and sexual license, the Court abandoned normal principles for judicial methodology and constitutional interpretation. With an amazing resolve, and no intellectual restraint, the Justices' pulled the "right to abortion" out of a vague "right to privacy," which itself lay in the shadowy "penumbra" of the Bill of Rights. 

Even supporters of abortion were troubled by the Roe majority's merely token attempt to acknowledge constitutional principles and judicial precedent. For example, Arthur Selwyn Miller, Professor Emeritus at the George Washington University National Law Center, stated: "[A]bortion is an idea whose time has come. I applaud the decision ... but do let me shake my head in bewilderment as to how one can make such a decision jibe with orthodox jurisprudence or judicial methodology."(1)

But the lack of constitutional guidance did not mean that Justice Blackmun and his collaborators had totally abandoned the goal of basing their decision on reasoned principles. Indeed, the reasoned principle on which Roe was formulated was first suggested by Justices William O. Douglas and Potter Stewart in dissents to the 1970 ruling United States v. Vuitch. Both were of the opinion that criminal abortion laws should not apply to physicians acting, in their best medical judgment, to preserve the health of their pregnant patients. 

This argument for the autonomy of physicians had a special appeal to Nixon appointee Harry Blackmun. Before his appointment as a federal judge, Blackmun had been a "doctor's lawyer" for the prestigious Mayo Clinic. Programmed to defend the medical establishment, Blackmun always objected to any "undue" interference with the medical profession.(2)

The arguments of Stewart and Douglas appealed to his world view. Whenever a doctor believes an abortion is necessary for a patient, Blackmun believed, the ability of the State to interfere should be severely limited. Indeed, in one of his summary statements in Roe, Blackmun writes: "[This] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention."(3)

This "doctors know best" approach appeared reasonable and appealing for several reasons. First, there are inherent dangers to abortion. The safety of women is clearly better served by physicians with years of medical training than radical feminists and bold entrepreneurs who have completed a four hour workshop on abortion technique. Second, the decision to abort in a time of personal crisis involves a complex interplay of medical, social, psychological and moral issues unique to each woman. The professional opinion of a trained physician who could assist the woman in making a fully free and informed choice is essential to prevent hasty or ill-considered decisions which might result not only in regrets but grave physical injuries. Third, the medical profession was highly respected and exercised a great deal of political and social power. In the absence of constitutional principles, a decision based on the dignity and professionalism of physicians would carry with it a sense of reasonableness. In an era when doctors were epitomized by television's competent and compassionate Dr. Welby, placing abortion decisions under the authority of physicians was seen as a practical solution to the abortion question which would both prevent abusive profiteering and ensure the safety of women. 

A Conflict of Interests

It is in this context that Roe and its progeny are best understood. Though doctors have no special constitutional right to be free of state regulation, it was by an appeal to the integrity of physicians that the Court's abortion solution had a claim to being reasonable. 

This is the cornerstone upon which the "abortion liberty" was built, and its edifice was constructed by a convenient intertwining of the rights of women and the duties of physicians. But this intertwining of rights and duties also results in certain conflicts between the woman's and abortionist's interests. Unlike the co-dependent interests of a woman and child, the abortion liberty's entanglement of a woman and her physician rights is an unnatural one. While the best interests of the woman and child are always the same, the best interests of a woman and her abortionist are not. 

The key, then, to unraveling the "abortion liberty" is to expand the legitimate rights of women so that they are clearly superior to the imputed rights of abortionists. These legitimate rights of women include: 1) The right to be protected from contraindicated procedures which would endager their health; 2) The right to receive the best choice of care options; 3) The right to be fully involved in all aspects of medical decisions affecting their health, and 4) The right to receive full financial compensation for any injuries they incur as a result of an abortionists failure to respect their rights. 

It is noteworthy that abortion was legalized only after pro-abortionists succeeded in promoting their argument that when there is a conflict between the rights of women and the rights of her unborn child, the rights of the woman must prevail. Learning from this same strategy, we can apply it here as well. In short, we must promote the argument that whenever there is a conflict between the rights of the woman and her abortionist, the rights of the woman must still prevail. 

Basic Responsibility for the Decision Rests on the Physician

Contrary to popular notions, abortion is not a constitutional right which women are free to exercise autonomously. As Roe makes clear: "Some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree."(4)

A woman's request for abortion is always subject to the review and recommendation of a physician who bears full responsibility for making that recommendation. This is so, because the Supreme Court has repeatedly found that abortion has serious health risks, mental and physical.(5) Therefore, abortion is not an arbitrary right of women but is rather a medical right which derives from her health needs and can therefore only be exercised after appropriate and sufficient consultation with a "responsible physician." It is by thus intertwining the rights of the patient and the duties of the physician that the Court has attempted to simultaneously advance and protect the health of women. 

Abortion is best described as a medical procedure which women have a protected liberty to seek because of their unique health needs.(6) But this liberty is limited by three factors: 1) the physician's duty to protect the woman's health; 2) the State's interest in protecting the woman's health; and 3) the State's interest in protecting "potential human life."(7)

In describing the duties and obligations of the physician, the Court has been very clear. Physicians are free to provide abortions when, in consultation with their patients, it is medically determined to be in their patient's health interests. This is not an arbitrary decision, it is a medical decision. This important distinction was made in Roe where the Court concludes its decision with the emphatic statement that "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."(8) [Italics added] 

Furthermore, the Court has consistently held that physician's are obligated to make this medical decision in light of a broad range of health issues, including physical, mental, social and family planning concerns.(9) Thus, as a health issue, "[T]he 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."(10) [Italics added] 

In order to reach a "medical judgment" that a pregnancy "should" be aborted, the physician is clearly obligated to thoughtfully weigh, on a case by case basis, the risks, benefits, and alternative forms of care. This requirement to make an informed medical judgment is intended to protect women from profiteers and preclude the prostitution of medical skills, which would occur if an abortion were simply provided on request. The role of the physician as a thoughtful protector of the woman's health is further substantiated when the Court emphasizes its "consistent recognition of the critical role of the physician in the abortion procedure has been based on the model of the competent, conscientious, and ethical physician."(11)

Clearly, a competent and conscientious physician would never allow a patient to self diagnose her own health problems, much less prescribe her own treatment. In reserving to the physician the final judgment of when an abortion may be performed, the Court requires the physician to protect the patient from the grievous harm which can result from her own ignorance of potential risks and alternatives. And in all cases, the recommendation for an abortion, formed on the basis of her broadly defined health needs, should be "for the benefit, not the disadvantage, of the pregnant woman."(12)

To summarize up to this point, while a woman may initiate a request for an abortion, it is the physician's responsibility, in consultation with the patient, to weigh all the risks and benefits of every option and make an appropriate medical recommendation. This important, but generally neglected, safeguard in the Court's rulings reflects the fact that the distress of an unplanned pregnancy may lead a woman to make a hasty, rash, ill-informed, or even dangerous decision. It is the physician's role, then, to bring a calm mind to this medical problem, evaluate the patient's problems, needs, and risks and to offer her the best care possible given all the complex factors involved. Just as a cancer patient is not free to procure chemotherapy without the review and recommendation of a physician, so a crisis pregnancy patient is not free to procure an abortion without the review and recommendation of a physician who will accept responsibility for what is "inherently, and primarily, a medical decision."
 
 

The Standard of Care for Abortion Recommendations

The above analysis is very important when considering the issue of medical malpractice. Abortion practitioners are not free to abandon all responsibility for the abortion decision. They may not justify provision of a dangerous abortion on the grounds that "I just gave her what she wanted." They must be able to articulate some basis for arriving at a recommendation for abortion which would reflect due consideration of all the health needs of the woman and the health risks of abortion.

In short, the Supreme Court has set in place specific requirements on the standard of care for abortion providers. It is the burden of the physician to make a medical judgment "in the light of all factors - physical, emotional, psychological, and the woman's age - relevant to well-being."(13) From this it can be argued that the Court clearly intends the physician to become familiar with the patient's health history, problems and needs. Conversely, the failure to form a medical basis for an abortion recommendation is negligence which endangers a patient's health, and abuse of this medical privilege to provide abortions is a cause for legal action.(14)

In addition, under the Supreme Court rulings, physicians clearly retain the right and duty to refuse an abortion which is contraindicated. This right and duty is also recognized by the Committee on Professional Standards of the ACOG, which has reiterated that:

It is recognized that although an abortion may be requested by a patient or recommended by a physician, the final decision as to performing the abortion must be left to the medical judgment of the pregnant woman's attending physician, in consultation with the patient.(15) [Italics added]

A physician has the right and duty to refuse to perform an abortion which is likely to exacerbate a woman's physical, psychological, or social problems. At the very least, a competent physician would insist on delaying an abortion until pre-existing medical or psychological conditions have been treated.(16) The importance of this obligation will be further explored in Chapter Six where the issue of proper screening will be examined.

Summary

In the Supreme Court's search to find a rational basis for restricting State regulation of abortion, the Court discovered the "abortion liberty" in the realm of a private relationship between a woman and her doctor. This "liberty" is predicated upon an idealized model "the competent, conscientious, and ethical physician" who has clearly defined obligations.

Though a woman is always free to seek an abortion, she does not have an absolute right to procure one. The physician retains the right and duty to refuse to provide an abortion which in his best judgment, given each patient's physical, psychological, and social circumstances, may be injurious to her health. This is the precisely the way in which the physician retains his medical discretion and exercises his "basic responsibility" for the abortion decision.(17)

However, the Court has never given the physician this same veto power with regard to childbirth. In other words, while a physician can refuse to perform an abortion for health reasons, he has no right to require or pressure a woman into consenting to an abortion because of the health risks associated with childbirth. In the same vein, he has no right to conceal alternative management options or health risks of abortion in order to "guide" her to choose abortion over childbirth.(18) Indeed, the Supreme Court itself has found that abortion involves such emotional and psychological risks that a decision to forego a previously desired abortion may generally be the safest course of action.(19)

This division of rights can be simply summed up in the following way. The physician is responsible for determining whether or not an abortion is contraindicated and is likely to be injurious to a woman's health. On the other hand, the woman is entitled to be fully informed about risks and alternatives so that she can make the ultimate decision, on the basis of all relevant information, of whether or not to accept the physician's recommendation to abort.(20)

It is notable that the duty of a physician to refuse a contraindicated abortion, and the right of women to be fully informed of risks and alternatives so that they can change their minds, would both tend to reduce the number of abortions performed. But instead, the number of abortions performed continues to grow. Why? Because abortionists are both violating their duty and denying women their rights. It is this abuse of their medical authority which will eventually destroy the abortion industry.
 

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Notes

1. Randall J. Heckman, Justice for the Unborn, (Ann Arbor, MI: Servant Books, 1984) 103. 

2. Woodward and Armstrong, The Brethren, 175, 416; and Noonan, A Private Choice, 45. 

3. Roe v. Wade, 410 U.S. 113 (1973), 165-166. 

4. Roe, 153. Also, "The privacy right involved, therefore, cannot be said to be absolute.... The Court has refused to recognize an unlimited right of this kind in the past." (Roe, 154) "Even an adult woman's right to an abortion is not unqualified." Matheson at 419 (Powell and Stewart, concurring). Also Danforth at 60 and Casey, at 709. 

5. The Supreme Court has affirmed that the "medical, emotional, and psychological consequences of an abortion are serious and can be lasting..." H.L. v. Matheson 450 U.S. 397 (1980) [hereinafter Matheson] at 411, also 413; Planned Parenthood v. Danforth 428 U.S. 51 (1975) [hereinafter Danforth] at 67; Planned Parenthood v. Casey 120 L Ed 2d 674 (1992) [hereinafter Casey] at 698-699. 

6. Casey, at 698. 

7. Roe at 163-166. These same principles are reiterated throughout the many abortion cases following Roe. Most recently in Casey at 709, 711, 715-716, 718. 

8. Roe at 166. Also: "The [Roe v. Wade] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention." Roe, 165-166. 

9. The decision whether or not to abort should be made "in light of all circumstances - psychological and emotional as well as physical - that might be relevant to the well being of the patient." (Danforth at 66) Family size, financial concerns, mental health, and physical health are all issues in making a medical recommendation for abortion. "All these are factors the woman and her responsible physician necessarily will consider in consultation." (Roe, 153) This medical decision is especially weighty, because "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of potential life." Harris v. McRaie, 448 U.S. 297, 325 (1980). 

10. Roe, 163 

11. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), at 448. One can almost hear in the background of these decisions an invoking of the sacred names: Dr. Welby and Dr. Kildaire. Indeed, it is precisely because the Court was using the model of an ideal physician that it found cause for excluding the State from "interfering" in the medical practice of these "competent, conscientious, and ethical" physicians. On the other hand, because the Court has created this idealized standard, abortionists can be held more liable for abortion related injuries when they fail to live up to this ideal. 

12. Doe v. Bolton 410 U.S. 179 (1973) at 192. 

13. Doe v. Bolton, 192; also Colautti v. Franklin 439 U.S. 379 (1979), 394. 

14. Roe, 166. 

15. American College of Obstetricians and Gynecologists: Committee on Professional Standards, Standard for Obstetric-Gynecological Services (1981). Also, ACOG Executive Board, Statement of Policy - Further Ethical Considerations in Induced Abortion, (Washington, DC: ACOG, 1977), p2: "In responding to the patient's expressed wish for termination of her pregnancy, there may be a tendency for the physician to act solely as a technician. Such action denies the physician's traditional role as a counselor and advisor. Physicians have an ethical responsibility to assure quality counseling is provided by them or others." 

16. Warren Hern, Abortion Practice (Boulder, CO: Alpenglo Graphics, Inc. 1990), 86. 

17. Roe, 166. Women are free to request abortions and women are the parties who are intended to benefit from this procedure, but as a medical procedure the right to abortion is a medical privilege of physicians. "The [Roe v. Wade] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention." Roe, 165-166. 

18. "[A] woman has at least an equal right to choose to carry her fetus to term as to choose to abort it." Maher v. Roe, 432 U.S. 464 472, n.7. 

19. "If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few -- perhaps none -- of the potentially grave emotional and psychological consequences of the decision to abort." H.L. v. Matheson, 412-413. 

20. For a complete discussion of a woman's right to full disclosure under Roe and subsequent rulings, see Chapter Eight.
 

Copyright 1996 David C. Reardon. Excerpted with permission for from Making Abortion Rare: A Healing Strategy for a Divided Nation, published by Acorn Books, PO Box 7348, Springfield, IL 62791-7348 for internet posting exclusively at www.afterabortion.org. All Rights Reserved. 

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