On Friday, Oklahoma Gov. Mary Fallin, a Republican, 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.
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.
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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.
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.
Blackmun concludes explicitly that “the decision vindicates the right of the physician to administer medical treatment according to his professional judgment.”
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 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.
Noah Feldman is a professor of constitutional and international law at Harvard.