The Supreme Court’s decision on abortion puts legal hurdles for doctors: Shot

Dr. Cara Bisley protests the reversal of Rowe v. Wade by the U.S. Supreme Court in Denver, Colorado on June 24, 2022.

By Jason Conley / AFP Getty Images

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By Jason Conley / AFP Getty Images

Dr. Cara Bisley protests the reversal of Rowe v. Wade by the U.S. Supreme Court in Denver, Colorado on June 24, 2022.

By Jason Conley / AFP Getty Images

Historically, doctors have played a major role in the legalization of abortion. In the 1860s, physicians from the newly formed American Medical Association worked to ban abortion in the United States.

A century later, they were doing the opposite.

In the 1950s and 1960s, when states were liberalizing abortion laws, the charge for it actually came from doctors who said, ‘It’s insane, we can’t practice medicine, if you say we can’t judge our medical Outside the table, ” explained Melissa Murray, a law professor at New York University.

The Supreme Court has ruled in favor of the doctors Rowe vs. Wade In 1973. The majority opinion was that “a woman spoke of her right to choose an abortion in consultation with her doctor,” Murray said.

Yet doctors and patients are all missing from the latest Supreme Court majority opinion on abortion. Dobs vs. Jackson Women’s Health Agency. In fact, in the opinion, Justice Samuel Alito uses the term “abortionist” instead of physician or doctor or obstetrician-gynecologist.

Legal experts say the court signals a major change in how abortion is viewed and creates a dangerous new legal reality for physicians. In states where abortion is limited, healthcare providers may be in a position to counsel patients who wish to have an abortion, including those facing pregnancy complications, in a legal context that considers them as potential offenders.

“Alito’s formulation is that abortion is a crime and that is the language he uses,” said Mary Ziegler, a law professor at the University of California, Davis. There is no dispute, he says, “the result of reversing a decision Rowe Doctors are going to be criminalized in the short term. “

Rowe vs. Wade was doctor-centric

Physicians were at the center of the court’s first landmark ruling on abortion, Rowe vs. Wade.

“Original Rowe The decision – it was very, very doctor-centric – so much so, “says Ziegler, who has written extensively on the legal history of abortion.” In the beginning, it was a right that was much more about healthcare and doctor-patient relationships. “

Rowe And abortion decisions that came later Planned Parenthood vs. Casey, “Abortion is a personal right, but it’s also a health care,” explained Carmel Schacher, executive director of the Petri-Flum Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School.

The court originally told states: “You can impose restrictions on abortion services and provider qualifications as you do for other types of health care and unless they are so difficult that we think they are involved. Rowe And CaseyWe’re fine with that, “said Shachar.

State legislatures that wanted to restrict abortions did so using healthcare control devices, he says.

These restrictions include informed consent laws, waiting periods, telemedicine restrictions, clinical regulations, hospitalization requirements for suppliers, insurance restrictions, and more.

Attempts to limit abortion through medically unnecessary regulations – “together, I think, consider abortion as health care and legitimize the concept of abortion as health care,” Ziegler said.

These regulations often try to control in detail how doctors provide abortions more strictly than in other fields of medicine, he noted. “The framework of the anti-abortion movement was basically, ‘We are protecting women from the’ abortion industry ‘by controlling the way abortion providers work.” “

A new legal framework

A recent abortion decision – Gonzalez vs. Carhart In 2007 – in the wake of the abortion, the Supreme Court’s precedent for backtracking on doctors was foreshadowed, Ziegler said. The legitimacy of the so-called “partial birth abortion” was at risk, a method used to perform a late-term abortion, which was banned by Congress in 2003.

“The battle in that case was over whether doctors could define what the procedure was and whether it was necessary or congressional for patients,” he says. “In this case, the Supreme Court has basically said that if there is any disagreement about science – the legislators have to break the tie.”

Inside Dobbs, The latest Supreme Court ruling on abortion is “a bigger violation because doctors don’t even pretend to care,” she says.

Its supporters Dobbs Opinions do not see the absence of physicians 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 told NPR after announcing the decision. His team submitted a brief amicus Dobbs Case, which requested the court to dismiss Rowe vs. Wade.

In his opinion, on behalf of the majority, Alito cited Mississippi law prohibiting abortion after 15 weeks, calling abortion “a barbaric practice, dangerous for the maternal patient, and degrading for the medical profession.”

Ziegler says the idea has spread year after year in the anti-abortion movement “that abortion was not medicine, it was not healthcare.” He says it was fueled in the 1980s when Bernard Nathanson, a doctor who previously performed abortions, became a political and religious convert.

He wrote this book in the 80s Cancel AmericaWhat he called the expression of the ‘abortion industry’, he explained.

This notion tends to be strong and its effects are clearly visible Dobbs, He says. Alito’s view reflects the notion that “abortion providers are not doctors in the sense that we generally understand – that they have historically been considered criminals and that what they are doing is unprotected.”

Excluding a ‘toucher’

Many doctors and legal analysts strongly disagree with Alito. Two dozen medical groups, including the American College of Obstetricians and Gynecologists and the American Medical Association, have told the court that abortion is a key part of reproductive health care, it is safe, and doctors need to be able to treat patients without government. Intervention

“I think the failure to consider the interests of pregnant people and the doctors treating them [in the majority opinion] It was eye-catching, “said Molly Meegan, chief legal officer and general counsel for the ACOG. She added that the use of the word” abortion “in the opinion was” inflammatory, wrong – they are doctors, they are suppliers, they are medical professionals. ”

Shavar of Harvard discusses the “history and tradition” approach that Alito used in his analysis that abortion is not a protected right, focusing on 19th century rules.

“Medical care has just changed dramatically – a bullet bite and we’ll amputate your leg,” he says. “It’s really shocking to say, ‘We have to live up to our historical idea,’ when we all agree that we want to live in a modern society where there are medical services that don’t treat women like chattels.”

Michelle Goodwin, who directs the Biotechnology and Global Health Policy Center at UC Irvine, says Dobbs And state abortion laws that can now apply to single physicians who provide abortions “for different treatments among other different types of care.”

“It would be a thing if, in fact, these were very risky methods that led to high mortality rates, but, in fact, it’s just the opposite,” he says. Abortion is very safe, he added, noting that abortion causes 14 times more deaths than abortion. This means that doctors who provide abortions “are, in fact, absolutely essential in the provision of reproductive health care,” she says.

The role of doctors is ahead

Physicians providing abortion are in an incredibly difficult place as they try to navigate the new legal landscape, especially in cases where a pregnant patient is ill or has complications. Intervene, and you run the risk of breaking the law and being prosecuted, losing your medical license, or even going to jail. Do not intervene and you may risk your patient’s life, and potentially be sued by the patient or family.

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

Dr. Katie McHugh is an OB-GYN who provides labor and delivery and abortion care at several clinics around Indiana, where abortion is still legal. Since the Supreme Court decision, she has seen a wave of new patients seeking abortion care from Ohio, Tennessee and Kentucky. He is trying to keep an eye on the laws of these neighboring states to find out what he can do for these patients.

“We’re trying to be very, very careful,” he says. “Especially when things are evolving, I’m sure I’ve made a mistake. And it’s very scary to me that I’m not only concerned about the medical safety of my patients, which I always think about, but now that I have their legal security, my own legal security. Concerned neo-hippies and their global warming, i’ll tell ya.

“The criminalization of both the patient and the provider is only incredibly disruptive to normal patient care,” he added.

Lots in the legal landscape flow. The ban is being enforced, blocked by some judges, and state lawmakers are drafting new restrictions. Effective laws are often confusing and vague, and doctors warn that care outside of abortion can also affect care, including abortion care and treatment of ectopic pregnancies and more.

It could be that teams of doctors like the American Medical Association and the ACOG get involved in legal battles here and again play a role in liberalizing abortion laws, just as they did decades ago.

“I think medical associations have a responsibility and an impact that should be used now,” Megan said. He notes that the AMA has recently adopted a resolution that defines abortion as a human right and that many organized medical groups across the specialty have come together to fight the criminalization of medical services.

“The recent political and legal solidarity regarding abortion has not been managed by doctors,” Ziegler notes. “Historically, doctors have had a really big reason that abortion was criminalized before, and if [they’re] It’s going to happen again, I think your medical profession needs to be more outspoken and united than ever before in talking about this. “

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