Roe to the rescue?

Roe v. Wade could prove an unlikely source of pro-life conscience protection

Public Discourse: Ethics, Law and the Common Good
2 March, 2011
Reproduced with permission

Mark Rienzi*

. . .a close examination of the Court's stated test yields a surprising result: the right to refuse to perform an abortion actually has better historical support, and better satisfies the Court's stated tests, than the abortion right itself.

The need to protect conscience rights in the healthcare field has become more acute in recent years, as governments become more involved in healthcare, and as governments and interest groups have argued that providing abortions should be a required part of medical practice.

The American College of Obstetricians and Gynecologists (ACOG), for example, has issued ethics opinions which would require doctors to provide abortions despite religious or conscientious objections, if refusal or even referral might interfere with "a patient's conception of well-being." California has argued in court that it retains the right to force physicians to provide abortions where needed to protect the "health of mothers"-a category that has been defined very broadly by the Supreme Court to include, among other things, "the distress . . . associated with the unwanted child" and the "stigma of unwed motherhood."

While the effort in H.R. 3 to create additional statutory protections for providers, which Helen Alvaré recently wrote about for Public Discourse, is laudable, pro-lifers may be ignoring an even more promising source for conscience protection against government coercion: Roe v. Wade itself. Roe and its successor, Planned Parenthood v. Casey, are perhaps the best known examples of the Court's use of the concept of "substantive due process" to declare constitutional rights that are not actually written in the Constitution.

The Court has described this analysis as a search for "fundamental rights" that are "deeply rooted in the Nation's history and traditions." In Casey, the Court focused less on history and more on personal autonomy and self-definition, finding that the Fourteenth Amendment also protects a person's right to "define one's own concept of existence . . . and of the mystery of human life" by choosing whether or not to have an abortion. In short, it is clear that under the Fourteenth Amendment the government cannot compel a woman to abort her own fetus-the question asked here is, can it force her to abort someone else's?

Even asking that question may feel counter-intuitive for most pro-lifers. Pro-lifers have long argued that Roe and Casey were wrongly decided, and that the Supreme Court has no business writing new rights into the Constitution. Nevertheless, a close examination of the Court's stated test yields a surprising result: the right to refuse to perform an abortion actually has better historical support, and better satisfies the Court's stated tests, than the abortion right itself. Thus, so long as Roe and Caseyremain the law, their reasoning also protects the right of healthcare providers to refuse to participate in abortions.

Historically, healthcare providers have generally been free to refuse to perform abortions. At common law, physicians actually had no duty to treat any patient at all, even in an emergency. While the exact legal status of abortion at common law is the subject of intense debate, there has been no suggestion from historians on either side that providers were forced by the government to participate in abortions. In fact, even historians supporting the Roe decision acknowledge that abortion was at best tolerated, not expressly legalized, and that the law dealt quite harshly with abortion providers (including imposing the death penalty on the provider if a woman died during an abortion). Moreover, medical ethics codes for centuries prohibited participation in abortions-an injunction that would be difficult to follow if the state could force doctors to perform abortions.

. . .conscience protections are consistent with the Court's description of the provider's role in Roe and in its companion Doe v. Bolton. Roe acknowledged the variety of views among physicians about abortion, and relied upon the presence of a willing physician, acting in concert with a patient, deciding to perform an abortion.

As states began to liberalize their abortion laws in the years preceding Roe, they provided express conscience rights at the same time. For example, when New York relaxed its abortion laws in 1971, the state also made it a crime to force anyone to participate in an abortion against his or her will. Such conscience protections are consistent with the Court's description of the provider's role in Roe and in its companion Doe v. Bolton. Roe acknowledged the variety of views among physicians about abortion, and relied upon the presence of a willing physician, acting in concert with a patient, deciding to perform an abortion. In fact, the Court in Roe expressly refers to the abortion right as, at least in part, a "right of the physician." The Court in Doe noted that individual and institutional refusals to perform abortions were the subject of "appropriate protection" by state laws. After Roe, both Congress and virtually every state government in the country adopted explicit statutory protection for individuals and hospitals to prevent them from being forced to participate in abortion procedures.

This history shows that the right to refuse to perform an abortion is "deeply rooted in the Nation's history and traditions." In fact, the historical basis for a right to refuse is actually far better established than the historical basis for the rights to abortion or to homosexual sodomy. Abortion was illegal for at least the century before Roe, and was likely limited at least at certain stages of pregnancy before that. The Court in Lawrence v. Texas found that non-procreative sex was widely banned. Yet the Court found both of these rights to be eligible for substantive due process protection because it found a practical ability to engage in the relevant conduct. In each of those cases, the Court took a practice which was actually expressly illegal and deemed it to satisfy the test of being "deeply rooted in the Nation's history and traditions."

In contrast, there is no evidence that it has ever been illegal for a physician to refuse to provide abortions. Far from being illegal, refusing to perform an abortion was actually required conduct in many circumstances (i.e., wherever abortion was outlawed). Prosecutions for refusals do not appear to be merely "infrequent" as in Lawrence-they appear to be entirely nonexistent. Those who performed abortions contravened accepted medical ethics, and were punished severely by the government for errors made in the process. And while Roe and Lawrence both relied on recent liberalization trends-in Roe, the Court noted "about one-third" of the states had changed their abortion laws; in Lawrence, nine states had moved toward abolishing their laws targeting homosexual sex-here virtually all of the states in the union and the federal government have declared their view that the government cannot compel providers to participate in abortions. They have all done so "in the past half century"-i.e., the period of time the Supreme Court deems to have the "most relevance" in this inquiry-and they did so rapidly upon the legalization of abortion. This widespread agreement that the government cannot force people to participate in abortions dwarfs any trends cited by the Court in Roe and Lawrence, and confirms that the right to refuse is both deeply rooted and implicit in the concept of ordered liberty.

Beyond this historical argument, the Court's decision in Casey provides additional support for a constitutional conscience right. Casey announced the Fourteenth Amendment's protection of individual decision-making autonomy on certain issues, including abortion. The Court explained that:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The Court further stated that a pregnant woman's destiny "must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." The Court repeated this view of the Fourteenth Amendment in Lawrence.

There is little reason to believe that the Casey autonomy right protects only the right of the pregnant woman, and not the right of her physician, to have her destiny "shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

While the Court has explained why the fetus gets no Fourteenth Amendment rights-the fetus is not a "person" according to the Court-no similar argument can be made about the healthcare provider. For the "person" performing the abortion, abortion quite directly implicates one's "concept of existence . . . and of the mystery of human life." In fact, even abortion providers who support Roehave indicated that performing abortions can impose serious psychological harms on healthcare providers-an effect that would likely be amplified for a provider who believes the fetus to be an innocent, living human being. There is little reason to believe that the Casey autonomy right protects only the right of the pregnant woman, and not the right of her physician, to have her destiny "shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

This constitutional argument cannot be trumped by the government's control over licensing. Indeed, the post-Roe history of near unanimous protection of conscience shows a broad national consensus that licensed medical practitioners, who have willingly chosen their professions, could not be forced to provide abortions.

More than thirty years ago the Court recognized that Roe does not even require the government to pay for abortions; it can hardly be read to include a right to force the government to force unwilling individuals to actually provide them.

Nor can the constitutional conscience right by trumped by referring back to Roe and arguing that a conscience right interferes with exercise of the right to choose abortion. The Court has repeatedly made clear that the right recognized in Roe is a right against government interference. This is true with most constitutional rights. The First Amendment, for example, protects my right to buy a Bible, but it does not mean the government can force any particular store to sell one; Lawrence protects a right to engage in homosexual sodomy, but it surely doesn't mean the government can force unwilling people to participate. The same is true with abortion. More than thirty years ago the Court recognized that Roe does not even require the government to pay for abortions; it can hardly be read to include a right to force the government to force unwilling individuals to actually provide them.

Of course, recognition of a constitutional right to refuse in these cases does not necessarily mean the right is absolute. Like the right in Roe, the constitutional right to refuse is a right against the government, not against private employers; pro-life healthcare providers would still need to rely on statutes for protection against private employers. And even where the government is involved, constitutional rights can occasionally be impinged if the government shows the burden is necessary to serve a sufficiently compelling governmental interest. Still, any such argument in this context would need to begin with a governmental explanation as to why it needs to forcibly conscript unwilling providers rather than providing the service directly by hiring willing providers, by transporting patients to willing providers, or by giving willing providers incentives to operate in under-served communities rather than more profitable urban centers. In the vast majority of cases, it would likely be impossible for the government to demonstrate that an interest is sufficiently compelling to trump the constitutional right to refuse, yet not quite compelling enough to justify direct government provision of or expenditures for the service.

None of this, of course, resolves the long-running debate about the legitimacy of Roe and Casey themselves. But it does suggest that, so long as those cases are the law of the land, they must be understood to provide a constitutional basis for the rights of the other undisputed constitutional "persons" in the operating room - the healthcare providers. For this reason, in an era of increasing government involvement in healthcare, pro-lifers in search of conscience protection may find that revisiting Roe might be just what the doctor ordered.

This essay is adapted from a longer article,The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers."