Many believe that Roe v. Wade conferred on American women an absolute right to abortion. That’s not the case. In Roe and subsequent abortion cases, such as Planned Parenthood v. Casey, the Supreme Court in fact conferred special privileges and immunities on the abortion industry.
This coming term, the Court will reconsider some of those privileges, which have no basis in law or the Constitution, and which are contrary to the equal protection of the law. The Court should require the abortion industry to explain why it deserves those privileges.
Whatever advantages women may have gained from Roe and Casey are more than offset by the power those decisions conferred on the abortion industry. The Court’s abortion precedents immunize abortionists from basic legal accountability such as general medical regulations, professional oversight, common-law protections for bodily integrity, and other laws that would protect women and children from harm and which apply to all other medical professionals. In stages of pregnancy before the unborn child can survive outside the womb, the abortion industry’s special immunities are absolute, or nearly so.
The industry and its enablers in elite media portray abortion as a women’s rights issue, but they can sustain this illusion only by ignoring several important facts. First, the Texas statute challenged in Roe did not impose criminal sanctions on women seeking abortions. Rather, like nearly all pro-life laws, it applied to those who perform abortions and those who pressure women to have abortions. The holding in Roe thus conferred a new privilege on abortionists and pushy boyfriends, or anyone else who might coerce a woman into abortion. In strictly legal terms, women gained no new liberties from the holding.
Second, Roe did not recognize a right for women to control their bodies. Instead, the Court justified its holding on the privacy of the abortionist–patient relationship. The Court made clear that, behind that cloak of privacy, the abortionist, not the patient, is in control. The Court expressly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.” As the author of Roe, Justice Harry Blackmun, later emphasized in an interview with law professor Ronald Rotunda, it is the abortionist who gets to decide “without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.”
The Roe Court cited two progressive-era decisions which derogated the centuries-old right to refuse medical treatment and a physician’s correlative duty to obtain informed consent: Jacobson v. Massachusetts and Buck v. Bell. In Buck, the Court had upheld a Virginia eugenics law that authorized physicians to sterilize young women without consent. The Court reasoned that the “principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
Since Roe, state legislatures have enacted many laws to secure women’s right to be informed about abortion before consenting to it. Abortion providers often challenge those laws in court, as Planned Parenthood did in Casey and is doing as of this writing in a lawsuit against the state of Montana. Informed-consent laws are rooted in ancient common-law rules prohibiting battery, assault, and mayhem (the legal term for physical dismemberment), which secure the fundamental right of bodily integrity. The abortion industry’s hostility to informed consent is not incidental to the abortion right; the Court baked it in from the beginning.
Third, the Court’s decisions since Roe have extended additional privileges to the abortion industry. Just three years after Roe, in Singleton v. Wulff, the Court conferred on abortionists the power to speak in court on behalf of women. Fundamental law prohibits a party from asserting the rights of another person. Blackmun succinctly explained why the Court refused to apply the law to abortionists: The abortion industry’s bottom line is at stake. If abortionists succeed in convincing courts to exempt them from medical regulations then “they will benefit, for they will then receive payment for the abortions.” The Court has not conferred this special standing power on other health-care professionals, nor on husbands or priests, though the law recognizes both marriage and religious ministry as relationships of profound privacy.
Since Singleton, abortion providers have asserted constitutional challenges in their own names — Planned Parenthood, Patrick Menillo, James Armstrong, LeRoy Carhart. The Court routinely allows those powerful men and corporations to speak for women, despite their obvious personal and financial stake in a particular outcome. These parties often obtain judgments exempting them from laws that protect the health of women and children, as in last summer’s Supreme Court decision in June Medical v. Russo.
That case was an example of another way in which abortion jurisprudence has helped abortionists but harmed women: The Supreme Court and lower courts have exempted abortionists from admitting-privilege requirements. An admitting privilege is not merely the right to send one’s patient to a nearby hospital; it is a status through which the medical profession regulates itself, holds members accountable to basic standards of care, and protects patients who are in need.
In testimony to the Indiana legislature several years ago, Dr. Goeffrey Cly, who served as quality assurance committee chairman at his hospital, explained how these requirements work. Cly testified that the committee’s oversight of physicians with admitting-privilege status “allows us to ensure that physicians are not harming patients because of substandard medical care or negligence. It also allows us to track complications and if necessary take educational or disciplinary action to protect our patients from harm.” Abortionists often practice without that accountability and coverage, at considerable risk to the lives and health of those who enter their clinics.
Abortionists insist that abortion is health care and that they are health-care professionals. Yet they assert immunities and powers that no other health-care professionals possess, and they refuse to accept many legal responsibilities that all health-care professionals bear. When a state legislature applies to abortionists long-standing rules governing physicians, abortionists immediately race to the nearest federal courthouse and demand an exemption.
If they deserve such special treatment, they should justify it on their own behalf. The Court should stop allowing them to hide behind their patients.