Jurisprudence

The Right’s New Strategy to Fight Abortion Takes Aim at Doctors

The attack on reproductive rights is borrowing from one of Roe’s original strategies, and weaknesses.

A black-and-white historic photo of abortion protesters and a modern-day photo of protesters holding signs that say things like, "Abortion is a right."
Photo illustration by Slate. Photos by Leif Skoogfors/Corbis via Getty Images and Saul Loeb/AFP via Getty Images.

Once again, women’s reproductive freedom is more concerned with doctors than women. Following the briefing and oral arguments in June Medical, the Louisiana case that calls into question the continued force of Planned Parenthood v. Casey and Whole Woman’s Health, it’s now quite clear that the primary questions opponents of reproductive freedom are asking have nothing to do with maternal autonomy or decision-making, and everything to do with abortion providers and whether they are bad people and unfit doctors.

Louisiana’s transparently unconstitutional law—the same law that was struck down from Texas in 2016 at the high court—mandates that abortion providers must have admitting privileges at a hospital within 30 miles of where they practice. The briefs supporting the law openly advance arguments that recklessly pit women against their own abortion providers. After years of merely implying that such providers are cash-starved grifters who prey on foolish women in rat-infested death labs, the critique now forms part of the spine of the state’s case, the Department of Justice’s defense, and Samuel Alito’s line of questioning at arguments. Given that in 1973, Roe v. Wade famously located the right to abortion in the bilateral relationship between women and their physicians (Ruth Bader Ginsburg explained in her Supreme Court confirmation hearing that “the Roe decision is a highly medically oriented decision” because it “features, along with the woman, the right of the doctor to exercise his profession”), the attempt to fracture that relationship is hardly a surprise. Justice Harry Blackmun, who authored the 7–2 majority opinion, mentioned the word physician 48 times and woman only 44 times in the decision.

Since Roe, then, it has been at least tacitly understood that the interests of pregnant women and their physicians were aligned in reproductive freedom cases. That is the reason abortion providers and clinics were granted decadeslong “standing” to bring legal challenges on behalf of their patients, who would by necessity be too poor, too distracted, or too pregnant to file suit in what would likely be grueling yearslong litigation. After all, it is difficult, if you are seeking to terminate a pregnancy, to remain pregnant for the three years it takes a case to wend its way through the legal system. But in his dissent in Whole Woman’s Health, Justice Clarence Thomas proposed a radical new notion: Clinics and abortion doctors should be denied standing to sue on behalf of the pregnant women they treat because these doctors were fundamentally horrible—corrupt and exploitative and seeking only to profit off the trusting women they purported to serve. As such, they have a vested interest in fighting sensible regulations that protect women, and their interests are inherently at odds with those of their patients.

Now, four years later, as the state of Louisiana brings the same basic complaint that Whole Woman’s Health resolved, the state is taking its cue from Thomas. In its brief in June Medical, Louisiana put it this way: “Abortion providers and their patients have an obvious conflict in the inevitable tradeoff between cost and safety. … Women have an interest in ensuring their own health and safety when they choose to obtain an abortion. … But plaintiffs’ interest is to reduce compliance costs and government oversight while providing as many abortions as possible.”

And Justice Samuel Alito put it this way at Wednesday’s oral argument, questioning the lawyer representing the clinics: “Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the right of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend?” When the lawyer replied that there was no such conflict, he said he found that answer “amazing.”

Deputy Solicitor General Jeffrey Wall, the Trump administration’s attorney, further insisted that the interests of abortion physicians and patients “are not necessarily aligned. One is the interest of for-profit providers and not being regulated in particular ways. The other is the interest of women in their own health and safety.” It sounds like a claim about female autonomy, but in fact it’s a claim rooted in doubts about female autonomy.

To buy into this reasoning is to further take for granted that abortion providers are different from plastic surgeons, dental surgeons, and every other health care provider in ways that require extra regulation, even when those regulations are medically unnecessary, geographically irrational, and potentially catastrophically dangerous to women. Further, as was the case in Roe v. Wade, the pregnant woman has become, again, at most the best supporting actress in a medical drama between mostly male legislators, mostly male jurists, and their mostly male ideas about physicians and suggestible women. We may have thought we’d come a long way from Blackmun’s physician-centered analysis in Roe, to the at least nominally woman-centered language of Casey and the emphatically woman-centered rhetoric of Whole Woman’s Health, but it seems we have merely arrived back at the same place we started: A fight about whether abortion doctors do or do not have their patients’ best interests at heart. It is fitting that in a week in which women have become invisible in so many other contexts in the public sphere, they’ve also been all but erased, once again, from their own reproductive rights.

There has always been a paradox that lies in centering abortion rights in the provider—one that we tend to elide in modern debates about doctrine. At one point, in the early abortion battles, doctors and pregnant women really were at odds: In her essential new book, Policing the Womb, professor Michele Goodwin of the University of California, Irvine, recounts the early history of American gynecology, including Marion Sims, the “grandfather of gynecology” who conducted his experiments on the female slaves he rented. Early gynecology organized itself around white male doctors who demonized and displaced female midwives. As Goodwin notes, “the legal history of abortion and its regulation root in the quagmire created out of the racialization and sex-exclusivity of reproductive medicine in the United States.” That these were the men to whom Blackmun, who had served as counsel for the Mayo Clinic, was so deferential in Roe went unnoticed at the time by most court watchers, although the young litigator, Ruth Bader Ginsburg, even then regretted that the case was always framed from the physician’s standpoint, and not the woman’s.

The physicians who seek admitting privileges in the Louisiana lawsuit are a far cry from the turf-grabbing doctors of the early gynecology profession, and even from the avuncular physicians of Blackmun’s 1970s Roe opinion. These providers, often imperiling their own lives and the lives of their families, are so phenomenally proficient that they have a hospitalization rate that stands, as Justice Stephen Breyer noted in Whole Woman’s Health, at less than one-quarter of 1 percent in the first trimester, and less than one-half of 1 percent in the second trimester.

This very proficiency is part of the reason they cannot obtain admitting privileges and the record shows that they did in fact try and were refused. Hospitals don’t want to give such privileges to physicians who almost never need admit a patient. As Breyer noted in Whole Woman’s Health, doctors at the El Paso clinic in Texas performed 17,000 procedures in the preceding 10 years and not one had to be transferred to a hospital. That made admitting privileges impossible to obtain. There is no medical need for extra credentialing, and requiring the privileges serves only to cast abortion providers as dubious stewards of their patients’ health. At this moment when government is working double time to cast physicians and science as less than reliable, that is a particularly nasty smear.

The irony, then, is that despite the wobbly doctor-based reasoning of Roe, the physicians in contemporary cases are so profoundly aligned with the interests of their patients that they take on landmark lawsuits, subject themselves to years of depositions and expense, in order to serve patients who desperately need them to protect their interests in court. They are not the all-knowing wise decision-makers of Roe, nor are they the chop-shop villians Alito imagines. They are—now more than ever—equal partners in a reproductive rights ground war from which women as actual combatants with agency and moral sophistication are being systematically erased.

Focusing on false, unfounded stereotypes about wicked abortion providers in June Medical is especially problematic given that it’s clear that those who seek to shutter clinics in this fashion are also oddly willing to jail women who seek abortions in Ohio and Georgia. Texas held hearings last year about imposing capital punishment for women who terminate their pregnancies. So, which is it? Are women culpable moral agents who should be punished for their choices, or are they the unwitting dupes of unscrupulous abortion doctors? And how is it possible that in Texas and Louisiana, it now appears that they can somehow be both? Are women evil or just stupid when they seek to end a pregnancy? Is her doctor a partner or a grifter? Or have we finally reached the stage in the law of reproductive justice at which we will accept that a woman is so perfectly invisible that whether she makes her own choices or her doctor makes them for her doesn’t even matter anymore?

For more political discussion, including an assessment of the June Medical case, listen to this week’s Political Gabfest.